Petition for Writ of Certiorari — Borg v. Robinson

1-258

No.

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1991

R. G. Borg, Warden, Petitioner,

Vv.

Ricardo H. Robinson, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

supreme Ceurt, U.S.

FILED

AUG 12 199)

QFFIQE OF THE

DANIEL E. LUNGREN

Attorney General of California

GEORGE WILLIAMSON

Chief Assistant Attorney General

CAROL W. POLLACK

Assistant Attorney General

DAVID F. GLASSMAN

Deputy Attorney General

*DONALD E. DE NICOLA

Deputy Attorney General

300 South Spring Street

Suite 500

Los Angeles, California 90013

Telephone: (213) 346-2357

Attorneys for Petitioner

*Counsel of Record

— ae

QUESTION PRESENTED

Whether the rationale of Stone v. Powell, 428 US.

465 (1976), ordinarily precluding federal habeas corpus

review of Fourth Amendment Exclusionary Rule claims

raised by state prisoners, also forecloses federal habeas

corpus inquiry into a state prisoner’s evidentiary claim

under Miranda v. Arizona, 384 U.S. 436 (1966), and its

progeny, when the Miranda-based_ claim is

unaccompanied by any assertion or proof that the

challenged evidence of his statements had been obtained

from him through coercion and the prisoner enjoyed a

full and fair opportunity to litigate the claim in state

court.

TOPICAL INDEX

Pages

QUESTION PRESENTED. i

OPINION BELOW 1

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS 2

STATEMENT OF THE CASE 3

REASONS WHY THE WRIT SHOULD BE

GRANTED 11

Certiorari Should Be Granted to Resolve

an Important and Recurring Issue, Left

Open by this Court in Prior Opinions,

Involving Federal-State Relations in the

Proper Functioning of the Criminal Justice

System. 11

A. Importance of _ the

Issue. 11

B. This Case As an Appropriate

Vehicle for Resolution of the

Question Presented. 16

CONCLUSION 19

TABLE OF AUTHORITIES —

Cases

Brewer v. Williams, 430 U.S. 387

Colorado v. Connelly, 479 U.S. 157

DeAngelo v. Wainwright, 786 F.2d 1516

eat ‘ Dilan 492 U.S. 195

Fairman v. White, 465 U.S. 1075

Harryman vy. Estelle, 616 F.2d 87

Henderson v. Duggs, 925 F.2d 1309

Hill v. Lockhart, 927 F.2d 340

Hinman v. McCarthy, 676 F.2d 343 (1982)

Jarrell v. Balkcom, 735 F.2d 1242

Lobosco v. Thomas, 928 F.2d 1054

McCown vy. Callahan, 726 F.2d 1

Miranda v. Anzona, 384 U.S. 436 (1966)

Oregon v. Elstad, 470 U.S. 298

Patterson v. Warden, 624 F.2d 69 (1980)

ili

Pages

12, 15

17

15

12-14

16

15

13

13

15

15

13

16

12-16

14

15

TABLE OF AUTHORITIES

Cases

Smith v. Illinois, 469 U.S. 91

Solem v. Stumes, 465 U.S. 638 |

Stone v. Powell, 428 U.S. 465 (1976)

United States ex rel. Henne v. Fike,

563 F.2d 809

Wainwright v. Sykes, 433 U.S. 72

White v. Finkbeiner, 687 F.2d 885

iv

Pages

16

13

11-13, 15

15

12

16

No.

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1991

R. G. Borg, Warden, Petitioner,

Vv.

Ricardo H. Robinson, Respondent.

Petitioner R.G. Borg, Warden of the State Prison at

Folsom, California, petitions this Court for a writ of

certiorari to review the published decision of a divided

panel of the Ninth Circuit Court of Appeals, which

granted federal habeas corpus relief to a convicted

murderer on grounds that evidence of incriminating

admissions had been obtained from him through police

questioning that continued after invocation of his

Miranda right to counsel.

OPINION BELOW

The published opinion of the Court of Appeals for

the Ninth Circuit is reported as Robinson v. Borg, 918

F.2d 1387 (1990). A copy of the opinion is reproduced

in the Appendix to this Petition.

JURISDICTION

The opinion below was filed on October 30, 1990,

and amended on December 11, 1990. The Court of

Appeals denied petitioner Borg’s petition for re-hearing

and suggestion for re-hearing en banc on May 14, 1991.

Issuance of the mandate has been stayed pending the

determination of this Petition for Writ of Certiorari.

Respondent Robinson originally invoked federal

court jurisdiction in this habeas corpus case under 28

USS.C. § 2254.

Petitioner Borg now invokes the jurisdiction of this

Court under 28 U.S.C. § 1254(1). 7

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fifth Amendment to the United States

Constitution provides, in pertinent part:

"No person shall . . . be compelled in any

criminal case to be a witness against himself

Title 28, Section 2254(a), of the United States Code

provides, in pertinent part:

"The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment

of a State court only on the ground that he is in

custody in violation of the Constitution or laws

or treaties of the United States."

STATEMENT OF THE CASE

Eleven years ago, in 1980, law student Richard

Gilman hired Las Vegas "bountyhunter" Bobby Savage

and respondent Ricardo Robinson to throw lye in the

face of Patricia Worrell. Savage and Robinson together

drove to Los Angeles and carried out that deed, in the

presence of Miss Worrell’s young son, in August of that

year. Miss Worrell swallowed the lye, which burned

through her esophagus and a subclavian artery, and she

died a painful death a few days later.

Robinson was arrested and questioned by police

officers in December 1980. In a tape-recorded interview,

the officers advised Robinson of his Miranda rights, and

Robinson repeatedly expressed his willingness to waive

those rights and answer questions~/ At first, Robinson

1. The Miranda advice-and-waiver colloquy, as quoted in the

dissenting opinion in the court of appeals decision in this case, took

this form:

Detective True: All right, before we start the interview, we

wanna advise you of your rights...

Robinson: O.K.

Detective True: . . . constitutional rights, O.K.? You have

the right to remain silent. If you give up the right to

remain silent, anything you say can and will be used

against you in a court of law. You have the right to

speak with an attorney and to have an attorney present

during questioning. If you so desire and cannot afford

one, an attorney will be appointed for you without charge

during questioning. O.K.? Do you understand each of

these rights that I’ve explained to you?

Robinson: Yeah.

Detective True: Do you wish to give up the right to remain

silent?

denied any involvement in tlie Worrell homicide. The

policemen, however, told Robinson that they knew he

was lying, explained to him that Gilman and Savage were

abandoning him as a "fall guy," and exhorted him to tell

them the truth.

Petitioner: No. I mean... No, J’ll speak now and answer

questions without an attorney.

Detective True: O.K. So you do wish to give up the right

to remain silent?

Robinson: Yeah.

Detective True: And talk to me?

Petitioner: Right.

Detective True: O.K. Do you wish to give up that right to

speak to an attorney and to have him present during

questioning? . a

Petitioner: This questioning right . . . right here, right

now? No, J don’t see why not, you know... .

Officer Guarino: What do you mean? You don’t, you

don’t want, you don’t need an attorney here now, right

now, while we talk?

Robinson: | mean for . . . I was, see I ain’t did nothin’. I

can answer everything you want me to.

Officer Guarino: Well, this is what we wanta understand.

Detective True: This, this is what I’m asking you. Do you

give up the right to have an attorney present during our

questioning right now.

Robinson: If | say yeah, I’d want an attorney then I'd have

to get one here, is that right? (Unintelligible) Yeah. I give

it up, yeah, yeah.

Detective True: O.K.....

Robinson at this point said, "I have to get me a

good lawyer, man. Can I make a phone call?"2/ The

police officers told Robinson that he would oe allowed

to place the call, but asked him whether he planned to

call Savage, and then reminded Robinson that they were

affording him an opportunity "to tell your side of the

story right now." Robinson replied that he wanted to

call his mother in Pennsylvania. After momentarily

balking at paying for a long-distance call, the police

allowed Robinson to place a collect call. Robinson

placed the call during a three-to-four minute break in

the questioning. Immediately following Robinson’s

phone call to his mother, the questioning simply

resumed. It did so without the provision of an attorney

for Robinson, without any further inquiry by the police

about Robinson’s remark about needing a lawyer, and

without any reference by Robinson to that remark

either.’

2. In the federal district court and in the Court of Appeals,

petitioner Borg argued that the tape-recording of the interview

revealed that Robinson instead had uttered these words to the

interrogating policeman: “I think you’d make a good lawyer, man.

Can I make a phone call?" But both the federal magistrate and

the appellate court determined, after listening to the tape, that

Robinson indeed had said, "I have to get me a good lawyer, man

3. As quoted in the dissenting opinion in the Court of Appeals

in this case, the exchange was as follows:

Robinson: | have to get me a good lawyer, man. Can |

make a phone call?

Ferrand: Sure. We'll let you make a phone call. . . \ocal?

Hey, you wanta call Mr. Monday?

Robinson: No.

Ferrand: Do you know where . . . he is located?

5

Robinson, instead, began to acknowledge his partici-

pation in the attack against Miss Worrell. At first he

said that he had driven Savage and another person to

Los Angeles and that those two men had thrown the lye

at the victim. Soon, however, Robinson admitted that he

and Savage had hired themselves out to Gilman, that he

and Savage had driven to Miss: Worrell’s home together,

Robinson: | wish | did.

Ferrand: | know where he’s located. I know where this

guy is located, too.

Guarino: It’s just a matter of time. It’s just a matter of

going out there and gettin’ ‘em. You have a good

Opportunity...

Robinson: . . . | guess these two guys have track records,

or sumpin’, huh?

Guarino: .. . to give us your (unintelligible). Hey...

well, we’re givin’ you the opportunity to give us your side

of the story right now, uh...

Robinson: | understand that.

Ferrand: You wanta call your uncle?

Robinson: I wanta call my Mom; that’s my mother, man.

Guarino: Where’s she, Pittsburgh?

Robinson: Yeah, Pennsylvania. (Unintelligible)

Guarino: Well, we can’t...

Robinson: Can’t do that, huh?

Ferrand: That’s kind of far...

Guarino: Rick, we can’t, we can’t...

Robinson: Vii call collect.

Guarino: . . . Pittsburgh (unintelligible).

Robinson: ll call collect. (Unintelligible).

Ferrand: You can call collect?

Robinson: | can call collect.

Guarino: Well, if you can, you can call.

Ferrand: Rick, tell her that you’ve been used . . . set up,

set up by two paddies and that you don’t have enough

sense...

and that he had knocked on her door and that Savage

had thrown the lye.

In April 1981, an accusatory information filed in a

California trial court charged Robinson with murder,

mayhem, assault with a caustic substance, and conspiracy.

Before trial, Robinson sought to suppress evidence of his

incriminating extrajudicial statements on Miranda

grounds. Robinson claimed (1) that his initial expression

of waiver of his Miranda rights was invalid because the

police had fostered his misunderstanding of those rights

and (2) that the police had failed to cease questioning

upon his asserted invocation of his right to counsel

immediately prior to his telephone call to his mother.

Robinson did not testify at the hearing on this pre-trial

motion. The trial judge instead considered the tape-

recording and a transcript of the interrogation. The

judge concluded "beyond a reasonable doubt" that

Robinson’s Miranda waiver had been knowing and

voluntary, and also found that, although Robinson had

"alluded" to an attorney on "a couple of occasions," he

had not really asked for one.

Following the denial of the suppression motion,

evidence of Robinson’s incriminating admissions to the

police was admitted against him in his trial. A jury

found Robinson guilty of first-degree murder, conspiracy,

assault, and mayhem in April 1982. The court sentenced

him to state prison for a term of 25-years-to-life.

On direct appeal to the California Court of Appeal,

Robinson did not argue that he had invoked his right to

counse] in the mid-interrogation colloquy surrounding the

placing of the telephone call. Robinson’s appellate

counsel, in his July 1983 brief, argued a different

Miranda issue, focusing on the initial advice-and-waiver

litany, instead. The state appellate court rejected

ee a ed

Robinson’s different Miranda claim on its merits.

Nor did Robinson raise any Miranda claim at all in

his June 1984 petition, filed in the California Supreme ~

Court, for direct review of the state appellate court’s

decision upholding his conviction. Rather, Robinson

refrained from re-asserting the original "invocation" claim

he had raised at trial -- the claim upon which he now

has obtained relief in this federal case -- until he filed a

subsequent habeas corpus petition in the California

Supreme Court in December 1987. That petition repre-

sented the first renewal of this Miranda "invocation"

claim since his 1982 trial five years earlier. The State

Supreme Court denied Robinson’s petition two months

later.

In March 1988, Robinson filed two separate pro se

federal habeas corpus petitions. The petition that

initiated the case at bar repeated the claims that

Robinson’s initial Miranda waiver was invalid and that

the police later should have ceased interrogating him

after his "I need-to get a good lawyer, man" remark.+’

Warden Borg responded with a written return that both

addressed Robinson’s allegations on their merits and also

argued that the rule of Stone v. Powell, 428 U.S. 465

(1978) foreclosed federal habeas review of mere

Miranda-based claims of state prisoners who had a full

and fair opportunity to litigate such claims in state court.

4. In a separate federal habeas corpus petition filed at the

same time, Robinson alleged the inconsistent claim that his trial

lawyer had acted incompetently in failing to investigate Robinson’s

claim that he had been too intoxicated with drugs and alcohol to

understand and waive his Miranda rights in the first place. The

magistrate, who listened to the tape-recording of the Miranda advice

and waiver, rejected this contention. Robinson did not appeal the

denial of this habeas petition.

There was no evidentiary hearing, and thus no

testimony by Robinson, on the allegations in his federal

petition. The magistrate, instead, issued a Report and

Recommendation disposing of the petition on the basis

of both the pleadings and his own review of the tape-

recording and transcription of the challenged interroga-

tion. First, the magistrate rejected warden Borg’s Stone

v. Powell argument; but he nevertheless concluded, in

deferring to the state judge’s factual findings, that the

state court proceedings had been "full and fair." Second,

the magistrate determined that Robinson’s initial Miranda

waiver had been valid. Third, the magistrate determined

that Robinson’s reference to getting a "good lawyer" did

not amount to the kind of "unequivocal" invocation of

the right to counsel that would have required a cessation

in the interrogation. The magistrate declined to rule

whether Robinson’s remark even amounted to an "equi-

vocal" invocation of Robinson’s rights, concluding that a

rule proscribing continued interrogation in the face of

an equivocal invocation could not be applied

retroactively anyway. In September 1988, the district

court judge adopted the magistrate’s Report and

Recommendation.

Robinson appealed. Warden Borg, in his appellee’s

brief, addressed Robinson’s claims on their merits, but

also re-asserted the argument that the logic of Stone

foreclosed Robinson’s Miranda claims.

On appeal in 1990, a divided panel -- in a two-to-

one majority opinion written by Judge Reinhardt and

joined by Judge Norris -- reviewed the question de novo

and held that Robinson had "unequivocally" invoked his

"fifth amendment right to counsel" and that his

confession after continued interrogation therefore was

inadmissible under Edwards v. Anzona, 451 U.S. 477

(1981). The majority opinion did not address the

argument that Stone precluded Robinson’s claims in

federal court.

In dissent, Judge Trott opined that Robinson’s

remark about needing a lawyer had amounted to a mere

“equivocal” invocation that did not require a cessation of

questioning in this case. He also noted warden Borg’s

Stone argument and, quoting at length from Justice

O’Connor’s concurring opinion in Duckworth v. Eagan,

492 U.S. 195 (1989), endorsed a "revisiting" of the Ninth

Circuit decision in Hinman v. McCarthy, 676 F.2d 343,

which had rejected extending the Stone rule to Miranda

claims in 28 U.S.C. § 2254 cases.

Warden Borg petitioned for re-hearing and suggested

re-hearing en banc on the question of the continuing

validity, under Stone, of federal habeas corpus review of

Miranda claims brought by state prisoners. The request

and suggestion were denied in May 1991.

10

'

REASONS WHY THE WRIT SHOULD BE GRANTED

Certiorari Should Be Granted to Resolve an Important

and Recurring Issue, Left Open by this Court in Prior

Opinions, Involving Federal-State Relations in the

Proper Functioning of the Criminal Justice System.

A. Importance of the Issue.

In Stone v. Powell, 428 U.S. 465 (1976), this Court

held that a-Fourth Amendment Exclusionary Rule claim

brought by a state prisoner was not remediable in

federal habeas corpus proceedings if the prisoner had

been provided a full and fair opportunity to litigate the

claim in state court. The Court in Stone explained that,

although enforcement of the search-and-seizure

Exclusionary Rule remained justified at the trial and

appellate stages of a criminal prosecution, a weighing of

the competing costs and benefits dictated the conclusion

that the rule should not also be enforced in collateral

habeas corpus proceedings. The costs of the rule, as

identified in Stone, were “well known": the diversion of

the focus of the criminal trial from the issue of guilt or

innocence; the suppression of reliable and probative

evidence; the risk of a windfall freeing of the guilty; and

the risk of "generating disrespect for the law and

administration of justice." Conversely, the Court also

recognized that the Exclusionary Rule’s purpose of

deterring police misconduct would not be furthered

significantly by extending the rule to habeas corpus cases,

given the remoteness in time of post-judgment collateral

attacks and the redundant or merely incremental

deterrent effect of applying the rule to an additional

layer of proceedings beyond trial and direct appeals.

11

The Question Presented in this case, that of the

continuing validity of federal habeas review of state

prisoners’ Miranda-based claims, remains an unresolved

issue of a degree of importance at least equal to the one

that motivated this Court to grant certiorari in Powell

and compelled it to decide that case the way it did.

This Court left the question open in Wainwright v. Sykes,

433 U.S. 72, 87 n. 11 (1977). And, it has indicated most

recently, in Yist v. Nunnemaker, _ US. __, ___ [59

U.S. Law Wk. 4808, 4810, n.2] n. 2 (1991), and in

Duckworth v. Eagan, 492 U.S. 195, 201 n. 3 (1989), that

the question remains unresolved.

Several current and former Justices of this Court

have written in support of the notion that the rationale

of Stone v. Powell also operates to preclude state

prisoners’ Miranda claims in federal habeas corpus cases.

Justices O’Connor and Scalia expressed this view in a

cogent concurring opinion in Duckworth v. Eagan, supra,

492 US. at 205-214. Former Chief Justice Burger made

the same suggestion in his dissenting opinion in Brewer

v. Williams, 430 U.S. 387, 420-429 (1977). Also in

Brewer, former Justice Powell noted the importance of

the issue when he wrote, "[w]hether the rationale of

Stone should be applied to those Fifth and Sixth

Amendment claims or classes of claims that more closely

parallel claims under the Fourth Amendment is a

question . . . which should be resolved only after the

implications of such a ruling have been fully explored."

Brewer, supra, 430 US. at 413-414 (concurring

op.)(emphasis added).

Evidentiary objections premised upon the procedural

requirements of Miranda v. Arizona, 384 U.S. 436 (1966)

-- and upon direct interpretations of Miranda articulated

in cases like Edwards v. Arizona, supra, 451 U.S. 477,

12

——

upon which the Court of Appeals relied in this case --

are by their nature "closely parallel" to the Fourth

Amendment search-and-seizure claims excluded from

habeas corpus consideration under the Stone rule. Most

noteworthy, like Fourth Amendment objections, Miranda

claims unaccompanied by any showing of coercion seek

suppression of probative and reliable evidence of guilt.

See Solem v. Stumes, 465 U.S. 638, 644. The two kinds

of claims also are closely analogous in terms of their

impact on the justice system and on federalism. The

"costs" of entertaining state prisoners’ Miranda claims in

federal court, s.metimes years after the fact, include the

factors cited by this Court as justifying the rule in Stone:

the disruptive effect on the criminal justice system’s

interest in finality and repose, and the destructive effect

on federal-state relations that is worked by continuing

federal reconsideration of Miranda claims already

decided by the state courts.2/ Duckworth v. Eagan, supra,

495 U.S. at 211 (concurring op., O’Connor, J.)

Granting certiorari in this case and at this time

would follow logically from the recent jurisprudence of

this Court on federal habeas review of state criminal

convictions. In the last few Terms, this Court has

undertaken a reform of habeas case law that to a

significant degree has restored the writ to its proper

historical position within a scheme of constitutional 4

federalism. In doing so, this Court has treated with

renewed appreciation the writ’s most important role as

5. Even a review limited to published federal appellate

opinions this year indicates that federal habeas review of state

prisoners’ Miranda claims occurs regularly. See, e.g., Hill v.

Lockhart, 927 F.2d 340, 346 (8th Cir. 1991); Lobosco v. Thomas, 928

F.2d 1054, 1059 (11th Cir. 1991); Henderson v. Duggs, 925 F.2d

1309, 1312 (11th Cir. 1991).

13

|

a safeguard against fundamental miscarriages of justice

resulting in the conviction of the innocent, see, e.g.,

Coleman v. Thompson, __ US. __, ___ [59 U.S. Law

Wk. 4789, 4796] (1991); McClesky v. Zant, US.

, 111 S.Ct. 1454, 1475 (1991), and has treated with

serious deference both the legitimacy of the States’

interest in finality in the administration of criminal law,

Coleman, supra, [59 U.S. Law Wk. at 4796]; see Teague

v. Lane, 489 U.S. 288, 309 (1989)(plurality op.), and the

concientiousness with which state courts endeavor to

faithfully enforce the federal rights of a criminal

defendant, see Sawyer v. Smith, _-: U'S. ___, 110 S.Ct.

2822, 2831 (1990). The Question Presentéd in this case

implicates these values directly and represents an

outstanding unresolved issue that is of a piece with this

Court’s recent endeavors in this area of law. It is

especially ripe for certiorari review now.

As stated in Justice O’Connor’s Duckworth

concurrence, in balancing the costs and benefits of

applying Miranda’s suppression remedy to section 2254

habeas cases, "the scales appear . . . to tip further

toward finality and repose . . . than in Stone itself."

Duckworth, supra, 495 U.S. at 209 (concurring op.). This

is sO because, unlike search and seizure Exclusionary

Rule claims that properly may be premised only upon

actual violations of the constitution, Miranda-based claims

do not necessarily represent constitutional violations.

See Oregon v. Elstad, 470 U.S. 298, 306-310 (1985)

(Miranda "sweeps more broadly than the Fifth

Amendment itself" and "may be triggered in the absence

of a Fifth Amendment violation"); Duckworth, supra, at

209 (conc. op.) Miranda-Edwards claims, like the one

asserted by Robinson in this case, are in essence

assertions of violations of the Miranda prophylaxis, and

14

not claims of unconstitutionally coerced confessions.

Solem v. Stumes, supra, 465 U.S. at 644 n. 4. — The

availability of a full opportunity to litigate a Miranda-

based claim in a state court trial, and probably in later

state appeals, provides sufficient assurance that Miranda’s

prophylactic rule will continue to serve its intended

purpose

Respondent Robinson might argue, as he did in

opposing warden Borg’s suggestion for en banc

re-hearing below, that various federal circuits have

refrained from applying the Stone rule to Miranda claims.

But those cases have not given full consideration to the

merits of this argument, simply deferring instead to the

higher authority of this Court.’ If anything, in their

6. The Ninth Circuit itself, in Hinman v. McCarthy, 676 F.2d

343 (1982), merely stated its belief that the issue simply was not

"open" in the circuit, having been rejected earlier in a "brief per

curiam opinion" in Patterson v. Warden, 624 F.2d 69 (1980). The

Patterson opinion, in turn, declined the state’s invitation to extend

Stone by explaining merely that Stone "has not been so extended."

624 F.2d at 70. Similarly, the Fifth Circuit in Harryman v. Estelle,

616 F.2d 870, 872 n. 3 (1980) (en banc) cert. denied 449 U.S. 860

(1980), declined to extend Stone because the issue had not been

raised in the lower court and because the Supreme Court itself had

not extended Stone in Brewer v. Williams. The Seventh Circuit per

curiam opinion in United States ex rel. Henne v. Fike, 563 F.2d 809,

cert. denied 434 U.S. 1072 (1978) gave only two brief reasons for

refraining from extending Stone: the "potentially far-reaching issue"

had been raised belatedly as an afterthought; and the Supreme

Court had confined the Stone rule to Fourth Amendment claims.

The Eleventh Circuit in DeAngelo v. Wainwright, 786 F.2d 1516

(1986) basically referred to the circuit’s prior refusal to extend Stone

in Jarrell v. Balkcom, 735 F.2d 1242, 1253 (1984). But Jarrell had

declined to extend Stone to claims of involuntary confessions, and

noted that Miranda claims in contrast bore a similarity to Fourth

Amendment claims that might justify extension of the Stone rule to

15

explanations for their decisions to defer to this Court on

this point, many opinions of the various Courts of

Appeals tacitly have acknowledged the certworthiness of

the very Question Presented in this case. For example,

the First Circuit in McCown v. Callahan, 726 F.2d 1, 5

(1st Cir. 1984) cert. denied 469 U.S. 839 (1984) and the

Seventh Circuit in White v. Finkbeiner, 687 F.2d 885, 889-

890 (7th Cir. 1982), vacated on other grounds in Fairman

v. White; 465 U.S. 1075 (1983) declined to apply the

Stone rule to Miranda claims because the court had

"doubt" about its power to do so and because "prudence"

dictated leaving this "controversial!" issue to this Court to

decide. The Court of Appeals in White, moreover, noted

that a “forceful argument can be made for extending

Stone to Miranda claims. 687 F.2d at 889 n. 14.

B. This Case As an Appropriate Vehicle for

Resolution of the Question Presented.

Even though the Court of Appeals in its opinion in

this case relied primarily upon Edwards v. Arizona, supra,

451 U.S. 477, as the relevant precedent, it cannot be

gainsaid that the case at bar stands in the Miranda line

of cases. Edwards, as noted above, itself was a direct

interpretation of Miranda’s prophylactic requirement that

interrogation must cease upon the accused’s request for

counsel. See Smith v. Illinois, 469 U.S. 91, 95 (1984);

Solem v. Stumes, supra, 465 U.S. 638, 644 n. 4. The

Edwards Court itself, in characterizing its own holding in

that case, explained that it was granting relief because

the state had violated Edwards’ rights "as construed by

Amendment claims that might justify extension of the Stone rule to

them.

16

Miranda." 451 U.S. at 481, 482-483. Respondent

Robinson in this case, in fact, asserted and litigated

merely an unadorned Miranda-based claim, without any

allegation or proof of the governmental coercion that

characterizes a true Fifth Amendment self-incrimination

violation. Colorado v. Connelly, 479 U.S. 157, 163-164 &

n. 1. He has never deigned to testify or to submit a

sworn affidavit that he subjectively felt coerced at the

time of his alleged invocation of his right to counsel. In

fact, he has never asserted that he meant to cut off

questioning when he made the remark about needing a

lawyer.

Justice O’Connor, in her concurring opinion in

Duckworth, recited a catalogue of incongruities in the

litigation of that case which illustrated why it would have

served no legitimate interest to extend Miranda-based

relief to that particular state prisoner. 492 U.S. at 207,

211. Such anomalies characterize the case at bar, too.

Perhaps most important, like the state prisoner in

Duckworth, Robinson in this federal case has not

asserted that he was factually innocent of the Worrell

murder. Nor has he claimed that his challenged

confession was unreliable or untrue.

There is, in addition, something capricious about

Robinson’s latest success in finally convincing just two

federal judges that his Miranda invocation had been

"unequivocal," where neither the dissenting appellate

judge, the district court judge, the federal magistrate, the

state trial judge, or Robinson’s lawyer in his state appeal

could discern such clarity in Robinson’s alleged remark

about needing a lawyer.

Finally, Robinson in this case filed inconsistent

habeas corpus petitions, one alleging that he had invoked

his fifth amendment right to counsel to cut off police

17

questioning, and one claiming that he had been too

intoxicated even to understand that he possessed such a

right in the first place. Despite this, the independent

federal reviews of the paper pleadings and the four

corners of the transcription of the police questioning

emphasized presumptions and "prophylactic" rules, at the

expense of any inquiry into whether Robinson’s

confession was untrue or unreliable and whether he

actually was coerced into making it.

The anomalies recited in Justice O’Connor’s

Duckworth concurrence, and the additional ones present

in this case, are not aberrations in federal habeas

litigation of state prisoners’ Miranda claims. They occur

because the system of permitting such litigation fosters

them. Such a system requires re-evaluation by this

Honorable Court.

18

CONCLUSION

For thesé reasons, petitioner Borg requests that a writ of

certiorari issue in this case.

Respectfully submitted,

DANIEL E. LUNGREN

Attorney General of California

GEORGE WILLIAMSON

Chief Assistant Attorney General

CAROL W. POLLACK

Assistant Attorney General

DAVID F. GLASSMAN

Deputy Attorney General

OT)

*DONALD E. DE NICOLA

Deputy Attorney General

Attorneys for Petitioner

*Counsel of Record

19

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPHALS,

FOR THE NINTH CIRCUIT “a

{

Ricarpo H. Rosinson, No. Rates

Petitioner-Appellant, D.C. No.

v. | CV-88-1324-ER

RoBERT GLEN BorG, Warden, et ORDER AND

a AMENDED

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Edward Rafeedie, District Judge, Presiding

Argued and Submitted

November 1, 1989—Pasadena, California

Filed October 30, 1990

Amended December 11, 1990

Before: William A. Norris, Stephen Reinhardt and

Stephen S. Trott, Circuit Judges.

Opinion by Judge Reinhardt; Dissent by Judge Trott

SUMMARY

Constitutional Law/Criminal Procedure

Reversing and remanding a district court denial of a peti-

tion for habeas relief, the court of appeals held that incrimi-

nating statements made by appellant to police during

custodial interrogation were improperly admitted at trial in

15145

15146 ROBINSON ¥. BORG

violation of appellant's tights under the fifth and fourteenth

amendment.

Appellant Ricardo Hi. Robinson was convicted by a jury of

first-degree (felony) murder, mayhem, assault with a caustic

substance, and conspiracy to commit mayhem. Part of the

evidence introduced at trial consisted of incriminating state-

ments made by Robinsor to police during custodial interro-

gation. Robinson sought to suppress these statements prior to

trial, arguing that he had not knowingly and intelligently

waived his right to counse’, and that the police had not hon-

ored his subsequent request for counsel. After proper

Miranda warnings were given by the police to Robinson,

Robinson indicated he was waiving his right to counsel.

Police interrogation began. At one point during the :nterroga-

tion, Robinson said, “Maybe I shoulda got an attorney.” After

further questioning. he asked, “Man... can | make a phone

call?” The police ignored this request. After more question-

:ng, Robinson again asked to make a phone call. this time,

however, making it clear that he wished to obtain counsel. At

this point of the interrogation, Robinson made the incrimi-

nating statements. The state trial court denied Robinson’s

motion to suppress. The state court of appeals athrmed. The

California Supreme Court denied Robinson’s petition for

review. The district court denied Robinson's petition for

habeas relief.

[1] Once a suspect has requested the presence of an attor-

ney, 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. [2] Requests tor counse! are to be given broad effect

even when less than all-inclusive. Doubts must be resolved in

favor of protecting the constitutional claim. Moreover, a sus-

pect’s postrequest responses to further interrogation may not

be used to cast restrospective doubt on the clarity of the ini-

tial request itself. [3] The court agreed that Robinson’s state-

ment that he had to get a good lawyer followed immediately

i

ROBINSON V. BORG - 15Si4°

by his request to raake a phone cali constituted an unambigu-

ous anu unequivocal invocation of his fifth amendment right

tc counsel. Upon hearing Robinson's request. it was incum-

bent upon the police to have ceased the interrogation. Their

failure to do so rendered inadmissible 2ny statements made

by Robinson in response to their continued questioning. [4]

The only reasonable explanation for Robinson’s decision to

interrupt the questioning and ask to make the phone call was

that he wanted an attorney in connection with the interroga-

tion. The Supreme Court has not required that a suspect spec-

ify that he wants an attorney at questioning to invoke a

“present” right to counsel. [5] The court did not find Robin-

son's request for counsel to have been ambiguous or equivo-

ca! it anv other respect. That his statement was a sufficient

invocation of his right to counsel was supported by a number

of cases that have found similar or less direct requests to be

unequivocai. [6] Because Kobinsonr.’s statement was an unam-

biguous and unequivocal! request for counsel, requiring that

al] interrogation cease immediately. the incriminating state-

ments he made in response to continued questioning after

that request had to be suppressed.

Dissenting. Judge Trott stated that. as he read the record.

Kobinson alluded to counsel on several occasions during

questioning. but he never expressec either a clear change of

heart concerning his earlier waiver, or a decision to stop talk-

ing with the police unti! he got an attorney or. for that matter.

to stop talking period.

COUNSEL

Shauna Weeks (law student). William J. Genego, Charles D.

. Weisselberg. Posi-Conviction Justice Project. University of

Southern California Law Center, Los Angeles, California, for

the petitioner-appellant.

I3i4e ROKINSON V. BORG

Donald E. De Nicola. Superv'sing Deputy Attorney General,

Les Angeles, California, ‘or the respondent-appeliee.

ORDER

The dissenting opinion of Judge Trott filed October 30,

1990, slip op. at 13382-402, is amended as follows:

In the first full paragraph on page 13396, the third and

fourth sentences are ordered deleted.

Insert the following in place of the third and fourth sen-

tences as part of the first fuil paragraoh:

A plausible different rule. such as the ruie recently

announced by the Virginia Supreme Court in Eaton

Commonwealth, 7 Va. L. Reports p. !3, Nos.

80038, 90039 (Va. Sept. 21, 1990) (Lexis States

Library. VA File). is that once a suspect has been

advised of his rights and waives them, questioning

iat does not run afoul of the Constitutional prohi-

bition against self-incrimination may continue until

the suspect clearly changes his mind and clearly

revokes the waiver of his present right to counsel. In

Eaton, the Virginia Supreme Court nad before it a

defendant who. while in custody for multiple homi-

cides, was advised of and waived his Miranda rights,

and then began to discuss the case with his interroga-

tors. When the interrogation turned to the shooting

of a state trooper. the suspect responded by asking,

“You did say I could have an attorney if I wanted

one”? The police answered his question in the affir-

mative and told him he did not have to tell them

anything. The suspect fell silent. After a brief time, #

and without any attempt to clarify his thinking on

the subject of an attorney, the interrogation

ROBINSON VV. BORG 15149

resumed. and the suspect made incriminating state-

ments that were used to convict him. In discussing

whether the rule of Edwards v. Arizona was triggered

under these circumstances, the Virginia Supreme

Court rendered the following analysis:

We agree with the trial court that Eaton’s

utterances concerning his right to counsel

were equivocal. Authorities in other juris-

dictions have adopted differing standards

with respect to the specificity with which a

request for counsel must be expressed.

Some courts require a clear and unambigu-

ous request, some prohibit all further ques-

tronine when the subject of counsel is

mentioned in any way, while others permit

further questioning oniy for the purpose of

resolving the ambiguity. The United States

Supreme Court has not expressly decided

the question, Smith y. I/linois, 469 U.S. 91,

95-4o (1984), but has expressed a preter-

ence for “bright-line rules” for the guidance

of the police who must conduct custodial

interrogatories [sic]. Fare v. Michael C.,

442 U.S. 707, 718 (1979).

The trial court, relying on Poyner v. Com-

monwealth, 229 Va. 401. 329 S.E.2d 315,

cert. denied. 474 U.S. 888 (1985) and

Burch vy. Commonwealth:;, 225 Va. 423, 304

.£.2d 271i, cert. denied, 464 U.S. 977

(1983), concluded that the standard pre-

vailing in Virginia is that a request for

counsel! must be “unambiguous and

unequivocal” in order to trigger the

Eawards rule. We distinguished the facts in

Bunch from those in Edwards by pointing

Out that “where Edwards involved an

15150 ROBINSON V, BORG

unequivocai statement by the accused that

he wanted counsel. Bunch's statement .

was couched in ambiguous terms to the

effect that he might want to talk to a

lawyer.” Bunch, 225 Va. at 433, 304 S.E.2d

at 276 (emphasis in original). We noted a

further distinction: in Edwards, the defen-

dant was told that he had to talk to the

police. Bunch, like Eaton, was told that he

need not do so. /d.

The circumstances in Poyner were remark-

ably close to those of the present case. After

police officers had given Poyner .Viranda

warnings, they summarized the informa-

t10n in their possession linking Poyner with

one of the murders charged against him. At

that point, Poyner asked, “Didn’t you say I

have the right to an attorney?” The oftcers

said, “Yes.” Citing Bunch, we held that the

defendant's statement was not a request for

counsel. “At most, it sought to clarifv one

of the rights cf which he had already been

advised.” Poyner, 229 Va. at 410. 329

S.E.2d at 823. The trial court’s view that we

have required a clear request for counse!

was, theretore, well-founded.

We share the U.S. Supreme Court’s prefer-

ence for “bright-line” rules for the guidance

of those who must conduct and evaluate

custodial interrogations. In further explica-

tion oj; the views expressed in Bunch and

Poyner, we hold that the Edwards rule is

invoked, and that custodial interrogation

must cease, when the accused, having

received Miranda warnings and having

begun to respond to the questions of the

ROBINSON V. Bora 1515!

authorities. “has clearly asserted his right

to counsel.” Eaiwaray, 451 U.S. 485 (em-

nhasis added). Because Eaton's words and

conduct fell short of that standard. we hold

that he failed to invoke his right to counsel

and that the Edwards rule did not come

into play on February 24.

From the foregoing. I conclude that the rule estab-

lished in Fouche I was a logical extension of Edwards

and its progeny, but I do not think it was “dictated”

by it.

OPINION

REINHARDT, Circuit Judge:

Appellant Ricardo H. Robinson appeals the district court's

ceniai of his petition tor writ of habeas corpus. He maintains

that the state trial court improperly admitted incriminating

statements he made to police during custodial interrogation,

in violation of his rights under the fifth and fourteenth

amendments. Robinson asserts two independent grounds for

reiief. First. he claims that he did not make a knowing and

intelligent waiver of his right to counsel during interrogation

because he dic not understand that he had a right to

appointec counsel. Second, he contends that, prior to making

the inculpatory statements admitted at trial, he unequivo-

cally invoked his right to counsel. We agree with Robinson

that his statement “I have to get me a good lawyer, man. Can

| make a phone call?” constituted an unequivocal request for

counsel, requiring that the interrogation cease. Accordingly,

we_reverse the district court’s denial of Robinson’s petition

tor habeas corpus relief.’

‘Robinson argued, in the alternative, that his statement was an equivocal

request for counsel and that, pursuant to our decision in United States v.

<_< —<_ <<:

_.rerne 2 ~<o

1S$152 ROUSSON SV, BORG

I. FACTS

+

Following a jury trial. Ricardo Robinson was convicted of

first-degree (telonv) murder, mavhem. assauit wiih a caustic

substance, and conspiracy to commit mayhem. Part ot the

evidence introduced against Robinson at trial consisted of

incriminating statements he made to police during custodial

interrogation. Robinson sought to suppress these statements

prior to trial, arguing that he had not knowingly and intelli-

gently waived his right to counsel under Miranda v. Arizona,

384 U.S. 436 (1966), and that the police did not honor his

subsequent request for counsel. Following a hearing, at which

a tape and transcript of the interrogation were introduced, the

State trial court denied Robinson's motion to suppress. The

statements were then admitted into evidence at his trial.

The suppression hearing reveals that the police advised

Robinson of his Miranda rights before beginning questioning.

The parties agree that the .\/iranda warnings given were cor-

rect on their face. When asked if he wished to give up his right

to remain silent. Robinson stated, “No. I mean... No. I'l!

speak now and answer questions without an attorney.” In

response to a series of questions designed to clarify whether

he wished to give up his right to an attorney at questioning,

Robinson replied, “If 1 say yes. I'd want an attorney then I'd

have to get one here, is that right? (Unintelligible) Yeah, I give

it up.” Police then proceeded to interrogate Robinson for

approximately four and one-half hours.

Fouche, 776 F.2d 1398 (9th Cir. 1985), police were fequired to discontinue

interrogation except for questions designed to clanfy his request. Appellee

countered that the holding in Fouche should not be applied retroactively to

this case. Because we conclude that Robinson's statement constituted an

unequivocal rather than an equivocal request for counsel, we need not

reach that issue. Similarly, although Robinson's contention that his waiver

~ was not knowing and intelligent 1s one of serious concern. our holding that

Robinson unequivocally asserted his night to counsel pnor to making the

inculpatory statements at issue will require suppression of those state-

ments, and it is, therefore, unnecessary for us to reach his waiver conten-

tion.

| s

ROBINSON V. Bora 15153

At one point during the interrogation. Robinson said,

“\favbe | shoulda got an attorney.” After further questioning.

he asked. “Man... can 1 make a phone call?” The detective

questioning Robinson ignored this request, stating, “Hey, |

was going to play a... portion of a tape for you in a second;

I want you to listen to it. O.K.?” After more questioning, Rob-

inson again asked to make a phone call. this time, however,

making it clear that he wished to obtain counsel. He stated, “J

have to ge* me a good lawyer, man. Can | make a phone

call?”* Cae of the interrogators responded by saying “sure,”

and then asking Robinson if he wished ‘to call another suspect

(and future co-defendant) in the case. When Robinson imme-

diately replied “No” the interrogator resumed questioning

him. Questioning continued until Robinson asked to call his

mother, at which time the interrogators agreed to let him

make that call. When Robinson returned from telephoning,

the detectives resumed the interrogation. They then ques-

tioned him at great length concerning his knowledge of and

participation in the crime under investigation. It was during

this part of the interrogation that Robinson made the incrimi-

nating statements that were the subject of his pretrial motion

to suppress.

Following his conviction, Robinson appealed to the Cali-

fornia Court of Appeals. The court of appeals affirmed, ruling

that the trial court's denial of the motion to suppress was

amply supported by the record. The California Supreme

Court denied Robjnson’s petition for review.

After two unsuccessful state habeas petitions, Robinson

filed his federal habeas petition. The district court, adopting

7On appea!, the State argues that Robinson's real words were: “I think

you'd make a good lawyer, man. Can I make a phone call?” The state trial

court apparently, and the federal magistrate exp :ritly, found that Robin-

son stated, “I have to get me a good lawyer, man. Can I make a phone call?”

Atier reviewing the tape of the interrogation, we have no doubt that the

state court's and the magistrate’s findings are correct.

15154 ROBINSON ¥. BORG

the Magistrate's Report and Recommendation without modi-

fication, denied the petition. The court concluded that Robin-

son had knowingly and intelligently waived his right to

counsel prior to the time the questioning began. The court

also found that Robinson did not make an unequivocal

request for counse! during the interrogation. Lastly, the court

noted that, even if Robinson’s statement were interpreted as

an equivocal request for counsel, this court’s decision in

Fouche should not be applied retroactively to this case.’

II. STANDARD OF REVIEW

The state court’s determination of what is said during an

interrogation constitutes a factual finding entitled to a pre-

sumption of correctness under 28 U.S.C. § 2254(d). See Mc-

Kenzie v. Risiev, 842 F.2d 1525. 153i (9th Cir.) (en banc).

cert. denied sub nom. McKenzie y. \fcCormick, 109 S. Ct. 220

(1988). Whether the suspect's words constitute a request for

counsel is a legal determination which we review de novo.

Smith v. Endell, 860 F.2d 1528, 1532 n.3 (9th Cir. 1988)

(“{T]he state court’s characterization of Smith’s words is

hardly a finding of fact. ... The constitutional effect of the

dialogue is a legal question subkrect to our independent

review.”),

II. DISCUSSION

[1] Under Edwards vy. Arizona, 451 U.S. 477, 484-85 (1981),

if at any point during an interrogation a suspect invokes his

right to counsel. all questioning must cease and may not

resume in the absence of counsel unless the suspect himself

initiates the further discussions. See a/so Smith vy. Illinois, 469

U.S. 91, 95 (1984) (per curiam) (“[I]f the accused invoked his

right to counsel, courts may admit his responses only on find-

34s noted above, we will not address whether Robinson's waiver was

valid or whether Fouche would be applied retroactively, as resolution of

these issues is not necessary to the disposition of this case.

ne

ROBINSON V. BORG 1StSS

ing that he (a) initiated further discussions with the police.

and (b) knowingly and intelligently waived the mght he had

invoked.” ). Once a suspect has requested the presence of a

attorney. “a valid waiver of that right cannot be establishec

by showing only that he responded to further police-initiated

custodial interrogation even if he has been advised of his

rights.” Edwards, 451 U.S. at 484. The Supreme Court has

stated that Edwards establishes a “ ‘rigid’ prophylactic rule.”

Smith v. Illinois, 469 U.S. at 95 (citing Fare v. Michael C., 442

U.S. 707, 719 (1979)).

[2] At issue here is whether Robinson invoked his right to

counsel when he said. “I have to get me a good lawyer, man.

Can | make a phone call?” Requests for counsel are to be

given broad effect even when less than_ all-inclusive.

Connecticut v. Barrett, 479 U.S. $23. 529 (1987). “Doubts

must be resoived in favor of protecting the constitutiona!

claim.” Afichigar v. Jackson, 475 U.S. 625, 633 (1986): see

also Smith v. Ende!!. 800 F.2d 1528, 1531 n.2 (9th Cir. 1988);

Grooms v. Keeney, 826 F.2d 883, 886 (9th Cir. 1987); Owen

v. Alabama, 849 F.2d 536. 538-39 (11th Cir. 1988); United

States v. Gotay, 844 F.2d 971 (2nd Cir. 1988). Moreover, a

suspect's “postrequest responses to further interrogation may

not be used to cast retrospective doubt on the clarity of the

initial request itself.” Smith v. Illinois, 469 U.S. at 100 (em-

phasis in original). Nevertheless. the Supreme Court has rec-

ognized that “[o]n occasion, an accused’s asserted request for

counsel may be ambiguous or equivocal.” Jd. at 95.

[3] Robinson argues that his statement that he had to get a

good lawver followed immediately by his request to make a

phone ca!l constituted an unambiguous and unequivocal

:nvocation of his fifth amencment right to counsel. We agree.

While the word “attorney” has no talismanic qualities, see

United States v. Jardina, 747 F.2d 945, 949 (Sth Cir. 1984),

cert. denied, 470 U.S. 1058 (1985), Robinson made clear his

perceived need for a lawyer and his desire to obtain the assis-

‘ance of counsel. No more is required. Upon hearing Robin-

—~e em + ee

came 2 2a

15156 RoOuUNSON SS, BOaG

son's request it was incumbent upon the police to cease the

interrogation, and their failure to do so renders inadmissible

any statements he made 1n response to their continued ques-

tioning. Edwards, 451 U.S. at 484-85.

The State contends that Robinson's statement was not a

request for counsel because he was not attempting to invoke

a present right to counsel. Rather, according to the State, Rob-

inson’s remark reflected his recognition that he faced a diff-

cult criminal trial ahead. We do not believe that as a matter

of either logic or semantics Robinson's statement is reason-

ably susceptible to such an interpretation. Nor do our cases

permit such a construction.

[4] In analyzing a defendant's request for counsel, we take

a defendant’s words “understood as ordinary people would

understand them.” Connecticut v. Barrett, 479 U.S. at $29.

Robinson’s statement “I have to get me a good lawyer, man

Can I make a phone call?”. made in the middle of an interro-

gation, can only reasonably be understood as expressing a

desire to obtain counsel and to do so immediately, not at a

trial several months later.-Robinson’s request to make a

phone call immediately after stating that he had to get a good

lawyer was a request to make a call at that moment, and the

interrogators so understood it. The purpose of the call was

obvious; Robinson wanted to obtain a lawver — and he

wanted one in connection with the interrogation he was then

urdergoing. If Robinson had only wanted an attorney for a

trial to be held several months later. he could well have

waited until after the end of the interrogation to make his call.

The only reasonable explanation for Robinson's decision to

interrupt the questioning and ask to make the call was that he

wanted an attorney in connection with the interrogation.*

“In arguing that Robinson was not invoking a present mght to counsel,

the dissent and the State ask us to look at the “fuller context of the entire

interrogation.” The magistrate, in agreeing with the State, relied on a state-

ment by the California Superior Court judge-that, “there was an alluding to

ROBINSON V. BORG 15157

Robinson was not required to state his request with any

more temporal particularity. In reyecting a similar contention

that detendants did not intend their request for counse! to

encompass representation during police questioning (as

opposed to formal legal proceedings), the Supreme Court in

Michigan v. Jackson, 475 U.S. at 633 n.7, stated:

Although judges and lawyers may understand and

appreciate the subtle distinctions between the Fifth

and Sixth Amendment rights to counsel, the average

person does not. When an accused requests an attor-

ney... he does not know which constitutional right

he is invoking: he therefore should not be expected

to articulate exactly why or for what purposes he 1s

seeking counse!.... The simple fact that defendant

has requested an attorney indicates that he does not

believe that he is sufficiently capable of dealing with

his adversaries singlehandedly.

The Court has therefore not required that a suspect specify

that he wants an attorney at questioning in order to invoke a

“present” right to counsel. In Oregon v. Bradshaw, 462 U.S.

1039, 1041-42 (1983) (plurality opinion), for example, the

an attorney on a couple of occasions... but again, basing my feelings on the

totality of the circumstances pricr to and subsequent to, there was never

really an asking by Mr. Robinson for an attorney.” (emphasis added). The

dissent also relies heavily on Robinson's post-request responses. The dis-

sent and the State, as well as the magistrate and the state court, err by look-

ing at the “totality of the circumstances,” particularly the events

subsequent to Robinson's request, to determine whether he adequately

invoked h:s mght to counsel. The Supreme Court in Smith v. Illinois

emphasized that an accused's postrequest responses cannot be used to cast

Goubt on the clarity of the initial request, 469 U.S. at 100, and “[tJhe total-

ity of the circumstances test. which is used to determine whether an

accused has ‘knowingly and voluntarily’ waived his Miranda nghts, has no

‘role in the determination of whether an accused's request for counsel is

clear or equivocal.” Owen v. Alabama, 849 F.2d at 539 (citation omitted);

cf, Smith vy. Illinots, 469 U.S. at 97-98.

15158 ROBINSON V, BORG

Court considered defendant's statement “I do want an attor-

ney before it goes very much further” to constitute a present

invocation of that right. Similarly, ‘n Edwards v. Arizona, 451

U.S. at 479, the Court held that the statement “I want an

attorney before making a deal” was a request for counsel that

precluded any further questioning, even though no “deal”

was ever made. See United States v. Gotay, 844 F.2d 971, 976

(2nd Cir. 1988) (noting that “the Supreme Court has been

notably generous in construing the temporal aspects of

requests for counsel”). Robinson’s statement was sufficient to

invoke his right to counsel effective immediately. There is no

requirement that a suspect specify that he wants counsel at

the questioning. Robinson was not required to make a tempo-

ral statement — to say that he wanted counsel right away —

and his failure to do so does not render his invocation of his

right less than immediate.

[5] Nor do we find Robinson’s request for counsel to be

ambiguous or equivocal in any other respect. As noted, Rob-

inson made his desire to obtain an attorney clear. That his

statement was a sufficient invocation of his right to counsel is

supported by a number of cases that have found similar or

less direct requests to be unequivocal. In Smuth vy. J/linvis, 469

U.S. at 96, the Supreme Court held that a suspect had made

am! unequivocal request for an attorney when, upon learning

that he had the right to the presence of counsel. he stated,

“Uh, yeah, I'd like to do that.” Recently, in Shedelbower v.

Estelle, 885 F.2d 570. 573 (9th Cir. 1989), we treated defen-

dant’s statement “You know, I'm scared now. I think I should

call an attorney.” as an invocation of his right to counsel. The

defendant in Smith v. Endell, 860 F.2d 1528, 1531 (9th Cir.

1988). had asked police. “Can I talk to a lawyer? At this point,

I think maybe you're looking at me as a Suspect. and I should

talk to a lawyer. Are you looking at me as a suspect?” We held

that this request was conditional, but was not equivocal or

ambiguous. And in United States v. Nordling, 804 F.2d 1466,

1471-72 (9th Cir. 1986), we found that defendant's statement

that his interrogators could call his attorney to identify him

ROBINSON V. BORG | 15159

and that he wanted to speak with his lawver when they did

was a sufficient assertion of his right to counsel. See also Owen

1 Alabama, 849 F.2d at 538-539 (detendant’s response to

\/ivanda warning concerning right to counsel, “I think I'll let

\ all appoint me one.” was arguably a clear invocation of right

te counsel which should be interpreted broadly); United

States v. Gotay, 844 F.2d at 976 (accused's statement that she

could not aflord a lawyer and was concerned about obtaining

a lawyer was arguably a clear request for counsel, requiring

that questioning cease); White v. Finkbeiner, 611 F.2d 186,

190 (7th Cir. 1979) (defendant's statement “I'd rather see an

attorney” when asked if he wanted to talk constituted a

request for counsel): United States v. Clark, 499 F.2d 802, 806

(4th Cir. 1974) (suspect's remark “I had better talk to a

lawver” considered a request for a lawver). As these cases

illustrate. a Suspect 1s required neither to use any magical for-

mulation to invoke his rights nor to express his desire to

obtain counsel with lawver-like precision. All that is required

is that he make his desire to consult with an attorney clear.

Robinson's staternent satishes that requirement.

Our conclusion that Robinson's invocation of his right was

clear 1s strengthened by a comparison with cases 1n which a

defendant's request has been held to be ambiguous or equivo-

cal. In United States v. Fouche, 776 F.2d 1398 (9th Cir. 1985),

we first had occasion to consider what constitutes an effective

assertion of the right to counsel. We held that defendant’s

Statement that he “might want to talk toa lawyer” and wanted

to make a phone call was an equivocal request for counsel,

requiring that any further questioning be limited to clarifying

the defendant's request. Fouche, 776 F.2d at 1405. On appeal

after remand. we emphasized the ambivalent or uncertain

rature of Fouche’s request, noting:

in some circumstances ... the request for counsel

may be equivocal or ambiguous. as when Fouche

said that he might want to talk to a lawyer or might

want to talk to the FBI agents.

14160 ROBINSON &. BORG

United States v. Fouchy, 833 F.2d 1284. 1287 (9th Cir. 1987),

cert. denied, 486-U.S. 1017 (1988) (emphasis in original). Our

other cases have been similar. In Grooms v. Keeney, 825 F.2d

883. 886-87 (9th Cir. 1987), we found that the defendant’s

request for counse] was ambiguous or equivocal when he

answered “I don’t know” in response to the question whether

he wished to consult with an attorney. More recently, in

Robtoy v. Kincheloe, 871 F.2d 1478, 1482 (9th Cir. 1989),

cert. denied sub nom., Robtoy y. Callahan, 110 S. Ct. 1483

(1990), we treated defendant’s remark “maybe I should call

my attorney” as an equivocal request for counsel. Accord

United States v. Cherry, 733 F.2d 1124, 1130 (5th Cir. 1984)

(holding that defendant’s request for counsel was equivocal

when he stated “maybe I should talk to an attorney before

making a further statement.” followed by, “why should I not

get an attornev?”). Finally, in distinguishing the defendant’s

statement in Smith v. Endell, 860 F.2d at 153i, trom an

ambiguous or equivocal response, we noted, “[Smith’s] state-

ment was not equivocal; there was no ‘might’ or ‘maybe’ or

‘perhaps.’ ”

[6] Robinson's statement “I have to get me a good lawver,

man. Can I make a phone cal!?” lacks the uncertainty and

indecisiveness that is necessary to warrant classifying a state-

ment as ambiguous or equivocal. Robinson made his per-

ceived need for a lawyer, as well as his desire to make a phone

call to obtain one, clear, and his statement evinces no doubt

or indecisiveness as to whether he should seek an attorney's

aid. “[T]here was no ‘might’ or ‘maybe’ or ‘perhaps.’ ” Jd.

Robinson’s statement was an unambiguous and unequivocal

request for counsel, requiring that all interrogation cease

immediately. The statements he made in response to contin-

ued questioning after that request must be suppressed.°

°*The State does not contend that the failure to suppress Robinson’s state-

ments 1s harmless error. See Chapman v. California, 386 U.S. 18, 23 (1967).

ROBINSON V. BORG 1516}

Accordingly. we reverse the district court's denial of Robin-

son’s habeas corpus petition and remand for proceedings not

inconsistent with this opinion.®

REVERSED AND REMANDED.

TROTT, Circuit Judge, Dissenting:

In some unknown number of cases the Court’s rule

will return a killer, a rapist or other criminal to the

streets and to the environment which produced him.

to repeat his crime whenever it pleases him. As a

consequence, there will not be a gain. but a loss. in

*The unfortunate comments regarding Miranda with which our colleague

introduces his dissent require a brief response. As was true in Miranda

itself, where the defendant was ultimately retried and convicted, see Ari-

zona v. Miranda, 104 Ariz. 174, 450 P.2d 364, cert. denied, 396 U.S. 868

(1969). our opinion does not foreciose the possibility of a new trial. It does

mot require that Robinson be returned to the streets or that any prison

doors be unlocked. The state is free to try him again. To represent to the

public that California will release him pending a new trial is disingenuous

at best. Today, unremarkably, we hold only that a conviction obtained in

violation of the fifth amendment cannot stand. We are required by well-

established precedent and the Constitution to reach that result. Despite the

dissent’s attempt to denigrate Miranda and its progeny to the status of mere

prophylactic rules unworthy of real implementation. the precedents we

aprly here are of constitutional magnitude and as binding as any other

Gecisions of the United States Suprem. Couri.

Judge Trott may believe that Miranda was wrongly decided. It was, after

all, a controversial decision in 1966. Since then, however, it has become

setticd law upon which defendants and law enforcement officials alike have

comes to rely. A citation to the Miranda dissent today, therefore, carries as

much weight as would a citation to the dissent in Baker v. Carr, 369 U.S.

185 (1962) or to Justice Butler's opinion disagreeing with the rule

announced in Erie R.R. v. Tompkins, 304 U.S. 64, 80 (1938). Those

‘ Supreme Court decisions were also controversial in their day, but like

Miranda, have since been fully accepted by those in the constitutional

mainstream.

ee

15162 ROBINSON V. BORG

human dignity. ... There is, of course, a saving fac-

tor: the next victims are uncertain. unnamed and

unrepresented in this case.

Miranda v. Arizona, 384 U.S. 436, 542-43 (1966) (White, J.,

dissenting).

Today, these poignant and prophetic words lose their

abstract quality as the prison doors that closed behind

Ricardo H. Robinson in 1982 are unlocked. But my quarrel

here is not with Miranda itself; it is with the manner in which

Miranda and its progeny are applied by my respected col-

leagues to the facts and legal circumstances of this case. In

that connection, this case as I see it is mostly about the pro-

phylactic rules and remedies designed by the judiciary “to

promote sensitivity to constitutional values through [their]

deterrent effect.”? Duckworth v. Eagan, — U.S. —, 109 S. Ct.,

U.S. 2875, 2882 (1989). (O’Connor, J., concurring). Thus, it

1S appropriate in my view for the judiciary to be mindful of

Justice White’s concerns and to monitor carefully the costs of

these rules as they are applied to the cases that come <efore

us. Lest we lose sight of these costs, | begin with a description

of Robinson’s unspeakable conduct, for which a California

jury found him guilty of murder with the special circum-

stances of torture and murder for financial gain, mayhem.

assault with a caustic substance, and conspiracy to commit

the above.

In 1980, Robinson’s codefendant Gilman (a law school

graduate) fell out with his fiancee, Patricia Worrell (a law stu-

'The majority points out that their opinion does not “foreclose the possi-

bility of a new trial.” Mayonty opinion at —. This may come as little solace

to Patricia Worrell’s family, to those responsible for reassembling for

retrial the components of a staie case now ten years old, to those who relied

on the admissibility of Robinson's contession in structuring the evidence-

gathering aspect of the investigation of this case, and to those who believe

that a system of “justice” must strive to bring litigation to an appropnate

conclusion in less than a decade. ;

Robinson ¥, Bore 15163

deni). Later that vear, Gilman decided on revenge. He located

a “hit man,” Bobby Savage. through a prostitute in Las Vegas.

Savage. a pimp and a bounty hunter tora bail-bondsman. was

paid $75U to “beat up” Ms. Worrell. Savage stalked Ms. Wor-

rellin Los Angeles, but eventually returned to Las Vegas with-

out earning his fee. Shortly thereafter. Savage telephoned

Gilman and put Robinson (a drug dealer) on the line.

“Robinson demanded an extra $1,000 for the job. Gilman

eventually agreed to the increase in money and told Robinson

he wanted them to throw lye or acid on Ms. Worrell. Gilman

also told Savage and Robinson to rough Gilman up too, to

make it ‘look good.’ ” People v. Gilman and Robinson, 156

Cal. App. 3d 760, 763 (1984).

On August 14. 1980. Robinson and Savage knocked on Ms.

Vorrell’s door. When she responded. Savage threw lye in her

tace. Gilman, who was in the house at the time, drove a crying

and screaming Ms. Worreli — and her son — to the hospital.

“Ms. Worrell’s upper body and face were severely disfig-

ured by the lye. She was biinded in her left eye. Some of the

lye entered her mouth. burned through her esophagus and

eventually burned through a |major] artery. This eventually

caused a massive hemorrhage that caused her death on

August 24, 1980." /d. at 764.

Robinson was arrested for these crimes. and he confessed

to his role in assaulting and kiliing Ms. Worrell.

I

My analysis of the Miranda issues in this case begins with

the pre-interrogation advisement of rights Detective True

administered to Robinson. The advisement was thorough,

and its thoroughness reveals that the two detectives scrupu-

_lously respected the instructions of the Supreme Court.

Detective True and his partner Officer Guarino focused

directly on Robinson’s right to have “an attorney present dur-

15164 ROBINSON V. BORG

ing Our questioning right now™ and did not Icave the subject

until it was clear to fhem that Robinson understood and

chose to answer questions voluntarily.

The exact colloquy was as follows:

Detective True: All right, before we start the

interview, we wanna advise you of your rights...

Petitioner: O.K.

Detective True: ... constitutional rights, O.K.?

You have the right to remain silent. If you give up

the nght to remain silent, anything_you say can and

will be used against you in a court of law. You have

the right to speak with an attorney and to have an

attorney present during questioning. If you so desire

and cannot afford one, an attorney will be appointed

for you without charge before questioning. O.K.? Do

you understand each of these rights that I’ve

explained to you?

Petitioner: Yeah.

Detective True: Do you wish to give up the right

to remain silent?

Petitioner: No.I mean... No,/'// speak now and

I'll answer questions without an attorney.

Detective True: O.K. So you do wish to give up

the right to remain silent?

Petitioner: Yeah.

Detective True: And talk to me?

Petitioner: Right.

ROBINSON V, BORG © - 15165

Detective True: O.K. Do you wish to give up

that right to speak to an attorney and to have him

present during questioning?

Petitioner: This questioning right... right here,

right now? No, / don't see why nol, you know . . . (un-

intelligible).

Officer Guarino: What do you mean? You don’t,

you don’t want, you don’t need an attorney here

now, right now, while we talk? ,

Petitioner: I mean for... 1 was, see I ain’t did

nothin’. | can answer everything vou want me to.

Officer Guarino: Well, this is why we wanta

understand.

Detective True: This. this is what I’m asking

you. Do you give up the right to have an attorney

present during our questioning mght now.

Petitioner: IfIsay yea, Id want an attorney then

I'd have to get one here, is that right? (Unintelligible)

Yeah. I give it up yeah, yeah.

Detective True: O.K.....

Transcript of Interrogation of Petitioner-Appellant Ricardo

H. Robinson (emphasis added).

The Supreme Court’s purpose in Miranda was to affect

police conduct during interrogations and to promote sensitiv-

ity to constitutional values. This case, along with thousands

of others, provides proof it has succeeded. Moreover, the

police here, by tape recording this interview, willingly

exposed their behavior to close scrutiny. This is inconsistent

with conduct designed to subvert Robinson’s rights. Neither

15166 ROBINSON V. BORG

does it show an intent to engage in coercive or Improper

behavior. The discourse 1s all there. on tape and in print, to

listen to, to study. and to dissect.

II

Robinson’s attorney claims Robinson’s waiver was defec-

tive because the .Wiranda colloquy indicates that Robinson

believed he was responsible for obtaining an attorney himself.

whether he could afford it or not. Robinson has never so testi-

fied, and 1 am not persuaded that this strained attempt to read

meaning into the exchange has merit. True told Robinson he

could have an attorney “without charge before questioning,”

and Robinson’s answer was clear: “I'll speak now and I'll

answer questions without an attorney.” Under the “totality of

the circumstances surrounding the interrogation” test. see

Moran v.- Burbine, 475 U.S. 412, 421 (1986), I find a clear

walver.

IT]

The finding of an express waiver sheds considerable light

not only on Robinson’s original decision to talk, but also on

(1) the meaning of Robinson’s references to an attorney in the

questioning that followed, references on which the majority

opinion focuses in reversing the district court, and (2) what

the police should have done when confronted with the refer-

ences. The majority opinion finds these references to consti-

tute an wnequivocal invocation of the present right of

counsel, requiring all questioning to cease at the moment the

“invocation” occurred. I respectfully disagree with this analy-

SiS.

As I read the record, Robinson alluded to counsel on sev-

eral occasions during questioning, but he never expressed

either (1) a clear change of heart vis-a-vis his earlier waiver,

or (2) a decision to stop talking with the police until he got an

attomey or, for that matter, to stop talking period. The state-

ROBINSON V. BORG 15167

ments “I have to get me a good lawyer man. Can I make a

phone cal!?” may mean exactly that, but im context they

require interpretation; this is the essence of ambiguity. Had

these statements been made during the initial advisement.

their meaning would no doubt have been different and —

because of context and juxtaposition — might have consti-

tuted an unequivocal request for an attorney. These

statements, however, were made in the midst of a continuing

conversation preceded by a waiver and an express willingness

10 talk. : see them as calling fur interpretation or clarification.

When the person being questioned has already expressly

declined to secure the services of an attorney and is talking

treely to the police, the logical response would be to follow-up

on such statements with clarifying questions, such as, “Does

that mean you don’t want to talk to us anymore until you get

an attorney?”* Ordinary people, including ordinary police

officers, see Connecticut v. Barrett, 479 U.S. 523, 529 (1987),

would understand Robinson’s words not as a clear invocation

of a present right to an attorney, but as an ambiguous refer-

ence to an attorney that required clarification. What Robin-

son said does not necessarily mean he had changed his mind

about talking to the police.

But another crucial aspect of Robinson’s compound state-

ment about an attorney and a phone call weighs heavily on

what he meant, and whether it was ambiguous. Immediately

following the statement, the police asked questions about

who he wanted to call. His ultimate answer? “I want to call

Mom: that’s my mother.” The exchange was as follows:

Robinson: |! have to get me a good lawyer, man.

Can I make a phone call?

‘For this case, the most appropriate example of “clarifying questions” is

found in True’s advisement of Robinson quoted earlier. Why a procedure

that 1s commendable at the beginning of questioning becomes something

we condemn :f it 1s appropnate later escapes me.

15168 ROBINSON V, BORG

Ferrand: Sure. We'll let you make a phone call

.. local? Hey, you wanta call Mr. Monday?

Robinson: No.

Ferrand: Do you know where... he is located?

Robinson: I wish I did.

Ferrand: I know where he’s located. I know

where this guy is located, too.

Guarino: It’s just a matter of time. It’s just a

matter of going there and gettin’ "em. You have a

good opportunity ....

Robinson: ....I guess these two guys have track

records, or sumpin’, huh?

Guarino: .... to give us your (unintelligible).

Hey... well, we’re givin’ you the opportunity to give

us your Side of the story right now, uh...

Robinson: I understand that.

Guarino: .... You’re,uh...I, 1 don’t think we

could be any more...

Ferrand: You wanta call your uncle?

Robinson: / wanta call Mom; that’s my mother,

man.

Guarino: Where’s she, Pittsburgh?

Robinson: Yeah, Pennsylvania. (Unintelligible)

Guarino: Well. we can’t... -

|

i

ROBINSON V. BORG 1516

Robinson: Can’t do that, huh?

Ferrand: That's kinda far...

Guarino: Rick, we can’t, we can't...

Robinson: I'll call collect.

Guarino: ... Pittsburgh (unintelligible)

Robinson: I'll call collect. (Unintelligible).

Ferrand: You can call collect?

Robinson: I can call collect.

Guarino: Well, if you can, you can call.

Ferrand: Rick, tell her that you’ve been used...

set up, set up by two paddies and that you don’t have

enough sense...

Transcript of Interrogation of Petitioner-Appellant Richard

H. Robinson (emphasis added).

Even though the police used a name and a relationship —

“Mr. Monday” and “vour uncle” — in asking Robinson who

he wanted to call, their questions were no different than say-

ing. “sure you can make a phone cali, who do you want to

call?” The police did not drop the subject brought up by Rob-

inson. The transcript reveals that Officer Ferrand kept it

alive, and he was within constitutional bounds in so doing.

Under such circumstances, the law permits the police to ask

questions devised to clarify the request? as well as to respond

3See United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir. 1985); United

States v. Nordling, 804 F.2d 1466, 1470 (9th Cir. 1986); Smith v. Endell,

860 F.2d 1528, 1529 (9th Cir. 1988).

sstieaiemeiesiiiiiiameiitiaicti cian

15170 ROBINSON V, BORG

naturally to the request in a manner reasonably calculated to

enable the request to be effectuated. Such questions hardls

amount to interrogation. much less interrogation designed to

produce incriminating evidence. See Rhode Island vy. 1nnis

446 U.S. 291 (1980). The police are not required by the Con-

stitution when a suspect asks to make a phone call — even to

an attorney — to clam up and escort the suspect to his cell

without uttering another syllable. The only activity guarded

against 1s further interrogation. Robinson's answer to Fer-

rand’s inquiry — “my mother, man” — renders the complete

exchange clearly ambiguous as to whether he was requesting

the presence of an attorney. The judgment we are required to

make on this issue cannot be an informed one unless we look

at the entire exchange. Contrary to the majority’s claim,

Smuth vy. Illinois, 469 U.S. 91 (1984) does not prohibit this

approach. Smith was concerned with an accused’s “post

request responses to further interrogation.” 469 U.S. at 100

(emphasis added). Officer Ferrand’s question. “[y]ou want to

call your uncle?”, was not “further interrogation” — it was

merely a natural response to Robinson’s request to make a

phone call. As such, it was not a “post request response to

interrogation” but an integral part of the exchange on the sub-

ject of the phone call. Thus, Ferrand’s question and Robin-

son’s answer may be looked at in deciding whether what he

said was equivocal. And, in fact, the proof of the pudding was

in the eating: The phone call he made — within minutes of

the request and with the assistance of the police — was to his

mother in Pennsylvania. After his discussion with her, he

continued to talk willingly to the police, without mak.ng any

references to an attorney.

The majority opinion comes to a screeching halt in its anal-

ysis with the word “lawyer,” an incomplete approach that

skews the inquiry, slights the law, and produces an incorrect

result. Bruni v. Lewis, 847 F.2d 561 (9th Cir. 1988), teaches

us that the word “attorney” has no talismanic qualities; the

mere use of it by a suspect such as Robinson does not abruptly

bring the curtain down on all further questioning. See a/so

denied, 470 U.S. 1058 (1985). Bruni also held. Edwards

notwithstanding, “a defendant may selectively waive his

Miranda rights, deciding to respond to some questions but

not to others.” 847 F.2d at 564.‘ This reasoning is consistent

with Connecticut v. Barrett, which permits police to question

a suspect who says he will not make a written statement with-

out a lawyer but will answer questions orally for the police. As

the use of the word attorney did not bar further questioning

in Barrett and Bruni, so it should not here either. Certainly it

should not prohibit Officer Ferrand from asking Robinson if

he wants to call his uncle. Thus, unlike my respected col-

leagues, I see Robinson’s references to an attorney during the

questioning as equivocal.®

IV

This conclusion takes me down a different analytical road

than the majority has taken. The next issue I must address is

the effect of an equivocal request for counsel and the response

required of interrogating police officers.

he leading case in this circuit on the subject of mid-

questioning equivocal references to an attorney is United

States v. Fouche, 776 F.2d 1398 (9th Cir. 1985) (“Fouche I’’).®

Fouche I held that “where a suspect makes an eguivocal

‘Bruni responded to a Mirandized request that he answer questions by

saying “not without my attorney.” He then added, “well, ask your questions

and | wiil answer those I see fit.” Jd.

°This conclusion is bolstered by the state court’s factual findings. See 28

U.S.C. § 2254(d). The tnal judge hearing the matter found the following:

“{T]here was an alluding to an attorney on a couple of occasions ... but

again, basing my feelings on the totality of circumstances prior to and sub-

sequent to, there was never really an asking by Mr. Robinson for an

attorney.” Report and Recommendation of United States Magistrate

Charles F. Eick, filed July 19, 1988.

®Fouche I came before this court for a second time on appeal. L’nited

States v. Fouche, 833 F.2d 1284 (9th Cir. 1987)(“Fouche IT’).

15172 —— ROBINSON \ Bor

assertion of [the right to] counsel. the police must cease all

questioning, except that they may attempt to clarify the sus-

pect’s desire for counsel.” 776 F.2d at 1404 (emphasis

added). Prior to Fouche /, Edwards v. Arizona, 451 U.S. 477

(1981), required police conducting a properly Mirandized

interrogation to cease questioning when confronted by an

unequivocal invocation of rights. It was not until Fouche |

however, that this circuit, following the Fifth Circuit tn

United States v. Clerny, 737 F.2d 1124, 1130-31 (Sth Cir

1984), advised law enforcement of the proper procedure

when confronted with post-waiver equivocation. Had Robin-

son’s interrogation occurred after 1985, Fouche / would have

controlled, but it did not. Thus, the question is whether

Fouche I applies retroactively to Robinson. Based on the well-

reasoned recommendation of the magistrate, the district

court ruled that Fouche J did not apply retroactively.

Teague v. Lane, 489 U.S. 288 (1989), states the test for

retroactivity. In Teague, the Supreme Court held that “new

rules” are not to be applied retroactively in collateral habeas

corpus proceedings unless they decriminalize conduct or are

necessary to ensure an accurate verdict — two exceptions

that are not relevant to this case. How has the court defined

a “new rule”? It has defined it as a holding that breaks new

ground or imposes a new obligation on the states or the fed-

eral government. /d.; see also, Penry y. Lynaugh, 492 U.S. ~,

109 S. Ct. 2934 (1989).

This test was refined in Butler v. AfcKellar, U.S. —, 1105S.

Ct. 1212 (1990), where the court, holding that Arizona v

Roberson, 486 U.S. 675 (1988). announced a “new rule,”

remarked that a decision announces a new rule “ ‘if the result

was not dictated by precedent existing at the time the defen-

dant’s conviction became final.’ ” /d. at 1216 (emphasis in

original) (citation omitted).

The court went on to point out:

ROBINSON V. Bora 1d]

|] jhe tact that a court says that its decision is within

the “logical compass” of an earlier decision. or

ndeed that it is “controlled” by a prior decision, is

not conclusive tor purposes of deciding whether the

current decision 1s a “new rule” under Teague.

Courts frequently view their decisions as being

“controlled” or “governed” by prior opinions even

when aware of reasonable contrary conclusions

reached buy other courts. In Roberson [Arizona vy.

Roberson, 486 U.S. 675 (1988)(if an in-custody sus-

pect invokes the right to counsel as to one investiga-

tion, police are barred from interrogating as to a

separate investigation)], for instance. the Court

found Edwards controlling but acknowledged a sig-

nificant difference of opinion on the part of several

lower courts that had considered the question previ-

ously.

110 S. Ct. at 1217 (citation omitted).

i see Fouche J as creating a “new rule.” and I do so for four

easons. First, the Supreme Court made it clear in Michigan

v. Tucker, 417 U.S. 433 (1974), that the Miranda rules are not

“themselves rights protected by the Constitution but [are]

instead measures to insure that the right against compulsory

self-incrimination [is] protected ....” Jd. at 444. Tucker also

teaches that if the procedure or treatment complained of.

measured by the historical circumstances underlying the priv-

ilege against compulsory self-incrimination, did not deprive

a petitioner of a constitutional right, then we are dealing with

“only the prophylactic rules developed to protect that right.”

!d. at 439 (emphasis added). An examination of the record in

the instant case demonstrates that what we face is not com-

pulsory self-incrimination, but an alleged violation of the

rules of engagement established by Miranda and its progeny.

This is not to relegate the rules to insignificance, but the dis-

tinction between rights themselves, on the one hand, and

“suggested safeguards ... not intended to ‘create a constitu-

15174 ROBINSON V. BORG

tional straightjacket,....” on the other. id. at 444 (citation

omitted), is one of considerable substance.

Constitutional rights are constant: prophvlactic rules by

comparison are less permanent and reflect the federal judicia-

ry’s judgment of what is necessary to protect those rights. Of

course, these rules are important and must be respected,’ but

they are nonetheless transient rules as compared to constitu-

tional rights.* Tucker demonstrates this difference. When the

Tucker court concluded it was not facing an abridgement of

a constitutional principle, it applied the .\iranda rules less

stringently.

Second, I see the Fouche J rule as “new” in this context

because, when it was articulated in 1985, it addressed an area

of Miranda for which this circuit had issued no definitive pre-

scription. We noted in Fouche J that the Supreme Court has

“not addressed what constitutes a valid assertion of the right

to counsel,” 776 F.2d at 1404, commenting that Edwards

”See Collazo v. Estelle, 884 F.2d 1168, 1171 en banc reh'g granted, (9th

Cir. 1989)(Lexis, Genfed library, 9th Cir file)(Trott, J., dissenting)(“As long

as [Miranda] 1s the law of the land, it must be respected.”).

*This is exemplified by the commenis of Justice Blackmun in his concur-

ring opinion in United States v. Leon, 468 U.S. 897 (1984), albeit in a ccce

involving the Fourth Amendment and the good-faith exception to the

exclusionary rule:

What must be stressed, however, is that any empirical judgment

about the effect of the exclusionary rule in a particular class of

cases necessarily is a provisional one. By their very nature, the

assumptions on which we proceed today cannot be cast in stone.

To the contrary, they will now be tested in the real world of state

and federal law enforcement, and this court will attend to the

results. If it should emerge from experience that, contrary to our

expectations, the good faith exception to the exclusionary rule

results in a material change in police compliance with the Fourth

Amendment, we shall have to reconsider what we have

undertaken here.

Id. at 928.

——- we

aes a

ROBINSON V. BORG 15175

addresses only “a right to counsel that has been ‘specifically

invoked. ” Jd. Judge Tang also stated in Fouche I: “No Ninth

Circuit cases provide guidance.” /d. Indeed, in 1984 the

Supreme Court explicitly declined to articulate a standard for

determining whether equivocal statements constitute invoca-

tion of the right to counsel: “We do not decide the circum-

stances in which an accused’s request for counsel may be

characterized as ambiguous or equivocal as a result of events

preceding the request or of nuances inherent in the request

itself, nor do we decide the consequences of such ambiguity

or equivocation.” 469 U.S. at 99-100. The court noted that

“courts have developed conflicting standards for determining

the consequences of such ambiguities.” Jd. at 96.°

Third, I do not believe the rule established in Fouche ] was

“dictated” by precedent. It is not impossible to conceive of a

different ruling on this issue, one that focuses on the deterrent

purpose of the exclusionary rule and the recognized need for

the questioning of suspects with respect to serious crimes. See

Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). A piau-

sible different rule, such as the rule recently announced by the

Virginia Supreme Court in Eaton v. Commonwealth, 7 Va. L.

Reports p. 13, Nos. 90038, 90039 (Va. Sept. 21, 1990) (Lexis

States Library, VA File), is that once a suspect has been

advised of his rights and waives them, questioning that does

not run afoul of the Constitutional prohibition against self-

incrimination may continue until the suspect clearly changes

his mind and clearly revokes the waiver of his present right to

counsel. In Eaton, the Virginia Supreme Court had before it

a defendant who, while in custody for multiple homicides,

was advised of and waived his Miranda rights, and then

began to discuss the case with his interrogators. When the

%Our court also noted this lack of guidance in 1987 in Fouche IJ. Citing

Connecticut y. Barrett, 479 U.S. 523, 529 (1987), and Smith v. Illinois, 469

U.S. 91, 96 (1984), Judge Nelson said, “the Supreme Court has twice

explicitly declined to rule on the permissible limits of interrogation follow-

ing equivocal requests.” 833 F.2d at 1287, n.3.

15176 ROBINSON V. BoRG

interrogation turned to the shooting of a state trooper, the

suspect responded by asking. “You did say I could have an

attorney if I wanted one”? The police answered his question

in the affirmative and told him he did not have to tell them

anything. The suspect fell silent. After a brief time, and with-

Out any attempt to clarify his thinking on the subject of an

attorney, the interrogation resumed, and the suspect made

incriminating statements that were used to convict him. In

discussing whether the rule of Edwards v. Arizona was trig-

gered under these circumstances, the Virginia Supreme Court

rendered the following analysis:

We agree with the trial court that Eaton’s utterances

concerning his right to counsel were equivocal.

Authorities in other jurisdictions have adopted dif-

fering standards with respect to the specificity with

which a request for counsel must be expressed. Some

courts require a clear and unambiguous request.

some prohibit all further questioning when the sub-

ject of counsel is mentioned in any way, while others

permit further questioning only for the purpose of

resolving the ambiguity. The United States Supreme

Court has not expressly decided the question, Smith

v. Illinois, 469 U.S. 91, 95-96 (1984), but has

expressed a preference for “bright-line rules” for the

guidance of the police who must conduct custodial

interrogatories [sic]. Fare v. Michael C., 442 US.

707, 718 (1979).

The trial court, relying on Poyner v. Commonwealth,

229 Va. 401, 329 S.E.2d 315, cert. denied. 474 U.S.

888 (1985) and Bunch v. Commonwealth, 225 Va.

423, 304 S.E.2d 271, cert. denied, 464 U.S. 977

(1983), concluded that the standard prevailing in

Virginia is that a request for counsel must be

“unambiguous and unequivocal” in order to trigger

the Edwards rule. We distinguished the facts in

Bunch from those in Edwards by pointing out that

Iie sw

ROBINSON V. BORG i Re

“where Edwards involved an unequivocal statement

by the accused that he wanted counsel, Bunch’s

statement ... was couched in ambiguous terms to

the effect that he might want to talk to a lawyer.”

Bunch, 225 Va. at 433, 304 S.E.2d at 276 (emphasis

in original). We noted a further distinction: in

Edwards, the defendant was told that he had to talk

to the police. Bunch, like Eaton, was told that he

need not do so. /d.

The circumstances in Poyner were remarkably close

to those of the present case. After police officers had

given Poyner Miranda warnings, they summarized

the information in their possession linking Poyner

with one of the murders charged against him. At that

point, Poyner asked, “Didn’t you say I have the right

to an attorney?” The officers said, “Yes.” Citing

Bunch, we held that the defendant’s statement was

not a request for counsel. “At most, it sought to clar-

ify one of the rights of which he had already been

advised.” Poyner, 229 Va. at 410, 329 S.E.2d at 823.

The trial court’s view that we have required a clear

request for counsel was, therefore, well-founded.

We share the U.S. Supreme Court’s preference for

“bright-line” rules for the guidance of those who

must conduct and evaluate custodial interrogations.

In further explication of the views expressed in

Bunch and Poyner, we hold that the Edwards rule is

invoked, and that custodial interrogation must

cease, when the accused, having received Miranda

warnings and having begun to respond to the ques-

tions of the authorities, “has clearly asserted his

right to counsel,” Edwards, 451 U.S. 485 (emphasis

added). Because Eaton’s words and conduct fell

short of that standard, we hold that he failed to

invoke his right to counsel and that the Edwards rule

did not come into play on February 24.

15178 ROBINSON V. BORG

From the foregoing. I conclude that the rule established in

Fouche I was a \ogical extension of Edwards and its progeny.

but I do not think it was “dictated” by it.

Fourth and finally, if the judiciary takes it upon itself to

guide the police with rules, as it has, it must do so fairly.

When we penalize the police, and thereby society, we should

do so only for not following the published rules, not for failing

to anticipate what the next rule will be. To apply rules retro-

actively is to punish the police for failure to follow somebody

who is not yet leading. This serves no deterrent purpose. It is

a counterproductive practice that should be avoided as it

breeds public disrespect for both the courts and the Constitu-

tion. The public understands that consequences attach when

rules are broken, but the public’s. sense of fair play is offended

bv changing the rules after the game is over. This process dif-

fers materially from the process of interpreting the Constitu-

tion and applying its mandates to a given situation. In such an

exercise, the rule is not being created; it already exists in the

Constitution itself and is simply being impressed upon the

circumstances of the case.

In sum, I conclude that Fouche J and its new rule cannot be

applied to Robinson’s interrogation, which occurred five

years earlier.

Robinson’s counsel argues that Solem v. Stumes, 465 U.S.

638 (1984), and not Teague v. Lane should control the issue

of whether Fouche J should be applied retroactively. I dis-

agree. Even if Stumes were controlling, however, I do not

believe the Fouche J rule would be imposed retroactively. In

Stumes, the Supreme Court held that the Edwards rule —

once a suspect has “clearly invoked” his right to counsel, only

the suspect may initiate subsequent conversation — did not

apply retroactively, and it so held for four reasons. First, the

Edwards rule does not significantly promote the court’s truth-

finding function, but rather is a prophylactic rule. 465 U.S. at

645. Second, although Edwards did not overrule a prior deci-

ROBINSON V. BorRG 15179

sion or transform standard practice, it established a new per

se rule that was not a necessary consequence of Miranda.

We do not think .. . police can be faulted if they did

not anticipate its per se approach. ... [I]t could he

justifiably believed that a waiver of the right to coun-

sel following its invocation could be voluntary even

if the police initiated the conversation.

465 U.S. at 647-48. Third, judicial guidance was lacking; the

courts were in conflict on the issue. Fourth, retroactive appli-

cation might affect numerous convictions, thereby disrupting

the administration of justice.

The reasons given by the Court in Stumes are applicable to

the present case: (1) This is a prophylactic ru/e that does not

promote truth-finding; (2) the police cannot be faulted for

failure to anticipate Fouche J; (3) judicial guidance — as

pointed out earlier — was lacking; and (4) retroactive appli-

cation might affect numerous convictions. Thus, under either

Stumes or Teague, the result would be the same. Fouche /

cannot govern Robinson’s interrogation. Accordingly, the

police failure to follow up on ambiguous references to an

attorney did not violate the Miranda rules in place at the

time, and is not a basis for granting Robinson’s petition for a

writ of habeas corpus.’® To alter slightly a thought from Jus-

tice Cardozo, the constable did not blunder, thus the criminal

should not go free.”

Counsel for Robinson suggests that this issue has already been decided

in favor of retroactivity, citing Brum v. Lewis, 847 F.2d 561 (9th Cir.), cert.

denied, 488 U.S. 960 (1988); Robtoy v. Kincheloe, 871 F.2d 1478 (9th Cir.

1989) cert. denied, U.S. — 110 S. Ct. 1483 (1990); Norman vy. Ducharme,

871 F.2d 1483 (9th Cir. 1989), cert. denied, — U.S. —, 110 S. Ct. 1483

(1990). Although these cases applied Fouche retroactively, the issue was not

discussed or presented in those cases. Thus they are not controlling as the

law of the circuit on this question.

‘This case provides an opportunity to reaffirm “the need for police ques-

tioning as a tool for effective enforcement of criminal laws.” Schneckioth v.

15180 ROBINSON ¥ . BorG

V

California suggests we should refuse to hear Robinson’s

Miranda complaints on the ground that the rationale of Stone

v. Powell, 428 U.S. 465 (1976), should foreclose collateral

review of these issues. Although we rejected this argument in

Hinman v. McCarthy, 676 F.2d 343, 349 (9th Cir.), cert.

denied, 459 U.S. 1048 (1982), Justice O’Connor in a concur-

ring opinion in Duckworth v. Eagan, — U.S. —, 109 S. Ct. 2875

(1989) (O’Connor, J., concurring), makes a persuasive case

that this issue should be revisited.

I quote Justice O’Connor:

In Stone v. Powell this Court held that claims that

probative evidence should have been excluded at

trial because of police conduct alleged to have vio-

lated the Fourth Amendment would not be enter-

tained in a federal habeas proceeding where a full

and fair opportunity to litigate the claim had been

made available in the state courts. The Stone Court

noted that the exclusionary rule “ ‘is a judicially cre-

ated remedy designed to safeguard Fourth Amend-

ment rights generally through its deterrent effect.’ ”

428 U.S., at 486, quoting United States v. Calandra,

414 U.S. 338, 348 (1974). The costs of such a rule

are high: highly probative and often conclusive evi-

dence of a criminal defendant’s guilt is withheld

from the trier of fact in the hope of “encourag[ing]

those who formulate law enforcement policies, and

Bustamonte, 412 U.S. 218, 225 (1973). Society currently needs all available

and civilized tools to protect itself from crime, not just those available in

a laboratory. To quote Schneckloth: “At one end of the spectrum is the

acknowledged need for police questioning as a tool for the effective enforce-

ment of criminal law. Without such investigations, those who were inno-

cent might be falsely accused, those who were guilty might wholly escape

prosecution, and many cnmes would go unsolved. In short, the security of

all would be diminished.” 412 U.S. at 225 (citations omitted).

ROBINSON V. BORG 15181

the officers who implement them, to incorporate

Fourth Amendment ideals into their value system.”

Stone, supra, 428 U.S., at 492. The exclusionary rule

is a structural device designed to promote sensitivity

to constitutional values through its deterrent effect.

As such, the rule’s utility must, as this Court has long

recognized, be weighed against other important val-

ues in its application. Where the rule’s deterrent

effect is likely to be marginal, or where its applica-

tion offends other values central to our system of

constitutional governance or the judicial process we

have declined to extend the rule to that contest. See,

e.g., United States v. Leon, 468 U.S. 897, 920-921

(1984) (refusing to apply exclusionary rule where

police rely in good faith on a warrant issued by a

neutral magistrate); Calandra, supra, 414 U\S.. at

349 (refusing to extend the rule to grand jury pro-

ceedings because its application “would seriously

impede the grand jury”); Walder y. United States,

347 U.S. 62. 65 (1954) (exclusionary rule does not

create “a shield against contradiction of [the defen-

dant’s] untruths” and evidence seized 1n violation of

the Fourth Amendment may be used jor impeach-

ment purposes).

In Stone, we found that application of the exclu-

sionary rule to Fourth Amendment violations on

federal habeas was likely to have only marginal

effectiveness in deterring police misconduct, while

offending important principles of federalism and

finality in the criminal law which have long

informed the federal courts’ exercise of habeas juris-

diction. In mv view, this same weighing process

leads ineluctably to the conclusion that the suppres-

sion remedy should not be available on federal

‘abeas where the state courts have accorded a peti-

tioner a full and fair opportunity to litigate a claim

that Miranda warnings were not given or were some-

15182 ROBINSON V. BORG

how dehcient. Indeed. the scales appear to me to tip

further toward finality and repose in this context

than in Stone itself.

The Fifth Amendment guarantees that “[n]o per-

son... Shall be compelled in any criminal case to be

a witness against himself.” The Amendment has its

roots in the Framers’ belief that a system of justice

in which the focus is on the extraction of proof of

guilt from the criminal defendant himself is often an

adjunct to tyranny and may lead to the conviction of

innocent persons. Thus, a violation of the constitu-

tional guarantee occurs when one is “compelled” by

governmental coercion to bear witness against one-

self in the criminal process. See Colorado v. Con-

nelly, 479 U.S. 157, 163-164, and n.1 (1986); Malloy

v. Hogan, 378 U.S. 1, 6-8 (1964). The suppression

remedy 1s quite possibly contained within the guar-

antee of the Fifth Amendment itself.

ware ear eee ert

The Miranda rule is not, nor did it ever claim to

be, a dictate of the Fifth Amendment itself. The

Miranda Court implicitly acknowledged as much

when it indicated that procedures other than the

warnings dictated by the Court’s opinion might sat-

isfy constitutional concerns, see Miranda, 384 U.S.,

at 444, and what was implicit in the Miranda

opinion itself has been made explicit in our subse-

quent cases. See, e.g., Oregon v. Elstad, 470 U.S. 298,

306-310 (1985) (noting that the Miranda rule

“sweeps more broadly than the Fifth Amendment

itself” and “may be triggered even in the absence of

a Fifth Amendment violation”); accord New York vy.

Quarles, 467 U.S. 649 (1984); Michigan v. Tucker,

417 U.S. 433, 442-446 (1974). Like all prophylactic

rules, the Miranda rule “overprotects” the value at

stake. In the name of efficient judicial administra- ,

tion of the Fifth Amendment guarantee and the need

ee erie, ee enn

ROBINSON Vv. BORG 15183

to create institutional respect for Fifth Amendment

values, it sacrifices society's interest in uncovering

evidence of crime and punishing those who violate

its laws. While this balance of interests may be per-

fectly justified in the context of direct review of

criminal convictions, in my view the balance shifts

when applied to a presumptively final criminal! judg-

ment which is collaterally attacked in a federal

habeas corpus proceeding.

— US. at _, 109 S. Ct. at 2882-83.

In the instant case, the courts of California afforded Mr.

Robinson a full and fair opportunity to litigate his Miranda

claims. The record shows that the state trial court conducted

a full evidentiary heanng on Robinson's motion to suppress.

The superior court judge listened to the tape recording of the

interrogation, reviewed the transcript. took live testimony,

and heard argument. Robinson then appealed to the Califor-

nia Court of Appeal. which ruled that the tnal court’s denia!

of the motion to suppress was amply supported by the

record.’? The California Supreme Court denied Robinson's

petition for a hearing. which failed to mention any Miranda

issue. Two subsequent petitions for writs of habeas corpus,

which did raise the issues now before this court, were also

denied.

TO apply the reasoning of Justice O'Connor's concurnng

opinion, numerous state and federal judges have considered

Robinson's claims. No one has raised any doubt as to his

guilt. the voluntariness of his incriminating statements. or

their substantive value. It wil] accomplish nothing to disci-

2The unpublished opinion of the Second Appellate District of the Court

of Appeal, 2d Cnm. No. 42532, filed May 4, 1984, reveals that Robinson,

although represented by distinguished counsel, did not raise the issue

which is now central to his case. The only Miranda issue discussed related

to the validity of his initial waiver on being advised of his nghts.

15184 ROBINSON V. BORG

pline now behavior that occurred in 1980 on the basis of a

case decided in 1985. “[{I]t is absurd to think that this added

possibility of exclusion [of the evidence] years after the police

conduct at issue will have any appreciable effect on police

training or behavior.” /d. at 2884. Fouche / is firmly in place.

It has been controlling the activities of police for five years. It

will do nothing to confirm the status quo or to promote prog-

ress to apply it to this case.

Accordingly, | would affirm the district court.

PRINTED FOR

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The summary, which does not constitute a part of the opinion of the coun, is

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umn ace CT ae me ' che

ae

3

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

FILED: July 19, 1988

RICHARD H. ROBINSON,) NO. CV 88-1324-ER(E)

)

Petitioner, _)

) REPORT AND

v. ) RECOMMENDATION

) OF UNITED STATES

R. G. BORG, Warden, ) MAGISTRATE

| )

Respondent._)

This Report and Recommendation is submitted to the

Honorabie Edward Rafeedie, United States District Judge,

pursuant to 28 U.S.C. § 636 and Genera! Order 194 of the

United States District Court for the Centraj District of

California.

Proceedings

Petitioner filed a "Petition for Writ of Habeas Corpus

by a Person in State Custody" on March 11, 1988.

Respondent filed a Return on April 28, 1988. Petitioner filed

a Traverse on May 27, 1988.

Background

Following a jury trial, petitioner was convicted of first

_ degree murder, mayhem, assault with a caustic substance and

conspiracy to commit mayhem. (RT 4563-65, 4586.)

Part of the evidence introduced at trial consisted of

incriminating statements made by petitioner during a custodial

interrogation. The investigators administered Miranda

warnings to the petitioner at the outset of that interrogation.

(Return, Ex. B, 34.)

Much later in the interrogation, petitioner stated:

"Maybe I shoulda got an attorney... ." (Return, Ex. B, 58.)

Later still, petitioner said: "I have to get me a good lawyer,

man. Can I make a phone call?" (Return, Ex. B, 77.) At

that juncture, petitioner phoned his mother in Pennsylvania.

(Return Ex. B, 77-78.)

In a pretrial suppression motion, petitioner argued that

there had been no knowing and intelligent waiver of his right

to have counsel present during the interrogation. He also

argued that, even if there had been an initial waiver, he

subsequently invoked his right to counsel.

The superior court judge listened to the tape recording

of the interrogation, reviewed the transcript, took live

testimony and heard argument. (RT 84-98.) The court found:

"[I]t’s unmistakably clear to this court that Mr.

Robinson was advised of his rights and that he knowingly,

clearly gave them up." (RT 96.)

"(T]here was an alluding to an attorney on a couple of

occasions .. . but again, basing my feelings on the totality

of the circumstances prior to and subsequent to, there was

never really an asking by Mr. Robinson for an attorney."

(RT 96.)

"But, this court doesn’t fee! that he ever asked for [an

attorney] and that he knew that he had the right to one

and that he wanted to talk and that’s what he did. And

so, the court will find that there was a proper advisement,

2.

that there was a proper waiver, and that the burden has

been met by the People and the statements will be

admissible." (RT 97.)

Following conviction, petitioner raised the same issues

on direct appeal to the California Court of Appeal. That

court concluded that "the police officers were thorough and

meticulous in determining that Robinson wanted to proceed

without counsel." (Ct. of Appeal Opinion at 27.) The Petition

for Review to the California Supreme Court did not mention

any Miranda issue. However, petitioner subsequently raised

his Miranda issues in two state habeas petitions. The

California Supreme Court denied the first petition on the

grounds of insufficient particularity. (Petition, Para. 7a.) The

court also denied the second petition, citing a rule against

repetitive petitions. (Petition, Para. 7c.)

Petitioner’s Contentions

Petitioner contends that: (1) He did not validly waive

his Miranda rights (Petition, Para. 10a); and (2) Interrogation

should have ceased when petitioner made statements referring

to the possibility of obtaining an attorney. (Petition, Para.

10d.)

Discussion

For the reasons discussed herein, petitioner’s contentions

are without merit.

I. Stone v. Powell does not foreclose collateral review of

alleged Miranda violations.

Respondent argues that the rationale of Stone v. Powell,

428 U.S. 465 (1976) should foreclose collateral review of

alleged Miranda violations. The Ninth Circuit has rejected this

argument. Hinman v. McCarthy, 676 F.2d 343, 34 (9th Cir.),

cert. denied, 459 U.S. 1048 (1982) ("We do not believe . . . the

question is open in this circuit").

I]. Petitioner has exhausted available state remedies.

Although the California Supreme Court never reached

the merits of petitioner’s contentions, it had a fair opportunity

to do so. In dismissing petitioner’s habeas petitions, the

California Supreme Court cited Jn re Swain, 34 Cal.3d 300,

304, 209 P.2d 793 (1949), cert. denied, 338 U.S. 944 (1950) and

In re Miller, 17 Cal.2d 734, 112 P.2d 10 (1941). The Swain

decision requires dismissal of state habeas petitions that fail to

disclose fully those facts upon which the petitioner bases his

claim. The Miller decision provides that habeas petitions

based upon the same grounds as prior denied habeas petitions

likewise will be denied.

When the California Supreme Court dismisses a state

habeas petition and cites Swain, the federai court must

independently examine the state habeas petition to determine

whether the petitioner presented his claim to the state court

“with as much particularity as is practicable." Kim v.

Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1980). If petitioner

did so, the exhaustion requirement is deemed satisfied despite

the state court’s failure to reach the merits. /d.

4.

Petitioner’s state habeas petitions presented petitioner’s

claims with "as much particularity as is practicable." (Return,

Ex. A.) The California Supreme Court’s failure to reach the

merits of those claims should not prevent review in this court.

III. Petitioner waived his right to have an attorney present

during the interrogation.

A federal court "must conduct an independent review of

validity of a [Miranda] waiver." Terrovona v. Kincheloe, No.

87-3677, at 8301 (9th Cir., July 7, 1988). The voluntariness of

a waiver is a mixed question of law and fact. Jd. at 8302-

8303. State court findings on subsidiary fact questions are

presumed to be correct, however. Jd. at 8302 n. 3; see 28

U.S.C. § 2254(d); Ahmad v. Redman, 782 F.2d 409, 412-13

(3d Cir.), cert. denied, 107 S.Ct. 119 (1986) (the subsidiary

issue Of whether defendant received and understood his

Miranda warnings is factual).

The court has reviewed the state court’s suppression

proceedings, listened to the audio tape recording of the

interrogation and studied the transcript of that interrogation.

The court concludes that, under the "totality of circumstances"

(see e.g. United States v. Most, 789 F.2d 1411, 1417 (9th Cir.

1986)), the petitioner knowingly and voluntarily waived his

right to have an attorney present during questioning. The

Miranda warnings administered to petitioner were sufficient as

a matter of law. See Patterson v. Illinois, __- US. _,

88 Daily Journal D.A.R. 8134, 8137 (June 24, 1988) (the fact

that a suspect may have lacked a full and _ sufficient

appreciation of all of the consequences flowing from his waiver

5.

of counsel does not impugn the validity of the waiver.) The

petitioner clearly stated several times that he agreed to answer

questions without the presence of an attorney. (Return, Ex.

B, 33-34.)

The court’s conclusion is supported by the state courts’

findings on subsidiary fact issues:+/ Petitioner knew he had a

right to an attorney (RT 97); petitioner wanted to talk without

the presence of am attorney (RT 97); and petitioner was

"ruminating" rather than asking a question with regard to his

right to counsel when he said: "If I say yes, I’d want an

attorney then I have to get one here, is that right." (Ct. of

Appeals Opinion at 27). These findings are fairly supported

by the record. (RT 84-98; Return, Ex. B.)

IV. Petitioner never made an unequivocal request for the

presence of an attorney

As the state court found, plaintiff alluded to counsel on

several occasions, but never made an unequivocal request for

the presence of an attorney. As the law in this circuit stood

prior to United States v. Fouche, 776 F.2d 1398 (9th Cir. 1985)

(discussed, supra, infra), petitioner’s allusions to an attorney

did not require the cessation of questioning.

In Edwards v. Arizona, 451 U.S. 477, 482 (1981), the

Supreme Court held that once a right to counsel has been

1. The state court proceedings were full and fair and there is no

applicable exception to the presumption provided in 28 U.S.C. § 2254(d).

lt is also worth noting that the state court employed a "beyond a

reasonable doubt" standard for the state’s burden of proving waiver,

whereas federal law requires only a "preponderance" standard. (See

Colorado v. Connelly, 107 S.Ct. 515, 523 (1986).

6.

——x—————————

"specifically invoked," questioning must cease (the "Edwards

rule"). See also Brewer v. Williams, 430 U.S. 387, 405 (1977)

(court refers to "clearest expressions" of the desire for the

presence of counsel). Petitioner’s statements, "Maybe I

shoulda got an attorney," and "I have to get me a good lawyer,

man" did not attempt to invoke a "present right to counsel."

See Bruni v. Lewis, 88 Daily Journal D.A.R. 9053, 9054 (9th

Cir.) July 12, 1988. Petitioner’s statements did not express a

refusal to deal with the police except through counsel. See

Arizona v. Roberson, US. _, 88 Daily Journal

D.A.R. 7626, 7627 (June 15, 1988).

"The word ‘attorney’ has no taismanic qualities. A

defendant does not invoke his right to counsel any time the

word falls from his lips." United States v. Jardina, 747 F.2d

945, 949 (Sth Cir. 1984), cert. denied, 470 U.S. 1058 (1985);

See also Connecticut v. Barrett, 479 U.S. 523, 525 (1987)

(refusal to make a written statement without the presence of

an attorney does not prohibit further oral discussions with the

police).

On similar facts, federal appellate courts have failed to

discern the invocation of the right to an attorney. See Smith

v. Dugger, 840 F.2d 787, 793 (11th Cir. 1988) (defendant stated

that he did not have an attorney "but I plan to get one");

Wernert v. Arn, 819 F.2d 613, 616 (6th Cir. 1987) (defendant

stated that her husband would call an attorney); United States

v. Nordling, 804 F.2d 1466, 1470-71 (9th Cir. 1986) (when

asked if he wished to waive the right to remain silent, the

defendant replied, "Yes, if you call my attorney in Washington

... he can identify me").

ieee nie

V. The prophylactic rule of United States v. Fouche should

not be applied retroactively to this case.

Petitioner’s conviction became final on June 30, 1984

(Petition, Para. 46). Petitioner now seeks the benefit of a rule

first adopted in this circuit in 1985: the rule that, when a

suspect in a custodial interrogation makes an equivocal request

for counsel, the investigators must cease all questioning except

as necessary to clarify the suspect’s equivocal request. United

States v. Fouche, 776 F.2d 1398, 1405 (9th Cir. 1985) (the

"Fouche" rule).2/_ The Fouche rule need not and should not be

applied retroactively to convictions that were final prior to the

Fouche decision.2/

The United States Supreme Court refused to apply the

Edwards rule retroactively. Solem v. Stumes, 465 U.S. 638

(1984).

"Edwards has little to do with the truthfinding function

of the criminal trial... . It would be unreasonable to

expect law enforcement authorities to have conducted

themselves in accordance with its bright-line rule prior to

its announcement; and retroactive application would disrupt

the administration of justice. Weighing these

considerations, we conclude that Edwards should not be

applied retroactively." Jd. at 650.

2. The United States Supreme Court thus far has not extended the

Edwards rule to equivocal assertions of the right to counsel. See Smith v.

Illinois, 469 U.S. 91, 99-100 (1984).

3. The court does not reach the issue of whether any of petitioner’s

statements qualify as an equivocal request for counsel within the meaning

of the Fouche rule.

These same considerations apply to the Fouche bright-

line extension of the Edwards rule. The Fouche rule "has little

to do with truthfinding." "The fact that a suspect has

requested a lawyer does not mean that statements he makes

in response to subsequent police questioning are likely to be

inaccurate." Solem, supra, 465 U.S. at 644. Indeed,

petitioner’s Traverse admits his fundamental involvement in

the crime, confirming the veracity of his custodial statements.

(Traverse, 3-4.) ,

"The purpose of excluding evidence seized in violation

of the Constitution is to substantially deter future violations of

the Constitution." Colorado v. Connelly, 107 S.Ct. 515, 521

(1986). Retroactive application of the Fouche rule would not

further the goal of deterrence. Plainly, it would be

unreasonable to expect petitioner’s investigators to have

conducted themselves in accordance with a rule not announced

by the Ninth Circuit until several years later.

Finally, retroactive application of the Fouche rule would

"have a disruptive effect on the administration of justice." See

Solem, supra, 465 U.S. at 650. Retroactive application could

reverse significant numbers of remote state convictions.

Retrials would be hampered by lost evidence, faulty memories,

and missing witnesses. Jd.+!

4. The above retroactivity analysis is not altered by the United States

Supreme Court decision in Griffith v. Kentucky 479 U.S. 314 (1987). "In

. Griffith, the Court modified one facet of its retroactivity principles, but did

so Only with respect to convictions that had not become final prior to the

Court’s announcement of a new rule of criminal procedure. Diaz v. Scully,

821 F.2df 153, 156 (2d Cir.), cert. denied, 108 S.Ct. 306 (1987).

9.

en ee

Conclusion and Recommendation

For all of the foregoing reasons, it is recommended that

the Court issue an Order: (1) adopting and approving this

Report and Recommendation; and (2) directing that judgment

be entered denying and dismissing the petition with prejudice.

Dated: July 19, 1988.

/s/ Charles F. Eick

Charles F. Eick

United States Magistrate

10.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

LODGED: July 20, 1988

FILED: September 9, 1988

RICHARD H. ROBINSON,) NO. CV 88-1324-ER(E)

)

Petitioner, )

) ORDER ADOPTING

v. ) | FINDINGS, CONCLUSIONS

) AND

R. G. BORG, Warden, ) RECOMMENDATIONS OF

) UNITED STATES

Respondent. ) MAGISTRATE

Pursuant to 28 U.S.C. § 636, the court has reviewed the

Petition, all of the records herein and the attached Report and

Recommendation of United States Magistrate. The court

approves and adopts the Magistrate’s Report and

Recommendation.

IT IS ORDERED that Judgment be entered denying

and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve

copies of this Order, the Magistrate’s Report and

Recommendation and the Judgment herein by United States

mail on petitioner and counsel for Respondents.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: 9/9, 1988.

[s/ Edward Rafeedie

EDWARD RAFEEDIE

United States District Judge

ll.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

LODGED: July 20, 1988

FILED: September 9, 1988

ENTERED: September 13, 1988

RICHARD H. ROBINSON,) NO. CV 88-1324-ER(E)

~ Petitioner, ;

v. JUDGMENT

R. G. BORG, Warden,

Respondent. ;

Pursuant to the Order Adopting Findings, Conclusions

and Recommendations of United States Magistrate,

IT IS ADJUDGED that the Petition is denied and

dismissed with prejudice.

DATED: 9/9, 1988

/s/ Edward Rafeedie

EDWARD RAFEEDIE

United States District Judge

12.

Zz

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAY 14, 1991

CLERK, U.S. COURT OF APPEALS

RICARDO H. ROBINSON, _ )

)

Petitioner-Appellant, ) No. 89-55126

)

v. ) D.C. CV-88-1324-ER

ROBERT GLEN BORG, )

Warden, et al. ) ORDER

)

Respondent-Appellee )

)

Before: NORRIS, REINHARDT, and TROTT, Circuit

Judges.

The pane! has voted to deny the petition for

rehearing. Judges Norris and Reinhardt voted to deny

the petition for rehearing and to reject the suggestion for

rehearing en banc. Judge Trott would grant the petition

and accept the suggestion for rehearing en banc.

The full court was advised of the suggestion for

rehearing en banc. An active judge requested a vote on

whether to rehear the matter en banc. The matter failed

to receive a majority of the votes of the nonrecused

active judges in favor of en banc consideration. Fed. R.

App. P. 35.

The petition for rehearing is denied and the

suggestion for rehearing en banc is rejected.