# Petition for Writ of Certiorari — Bunch v. Thompson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0590%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 505 U.S. 1230 ## Text FILED APR 30 1992 No. el IN THE Supreme Court of the United States OCTOBER TERM, 1991 TIMOTHY DALE BUNCH, " Petitioner, CHARLES E. THOMPSON, Warden, MECKLENBERG CORRECTIONAL CENTER, Respondent. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PETITION FOR WRIT OF CERTIORARI AMY BERMAN JACKSON (Counsel of Record) GERARD F’. TREANOR, JR. KARL A. RACINE VENABLE, BAETJER, HOWARD & CIVILETTI Suite 1000 1201 New York Avenue, N.W. Washington, D.C. 20005-3917 (202) 962-4800 Counsel for Petitioner April 30, 1992 Timothy Dale Bunch aarp WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 q¢ a QUES' .ONS PRESENTED 1. Whether the Fourth Circuit departed from rulings of this Court when it failed to apply the rule announced in Edwards v. Arizona to a petitioner whose convic- tion became final more than two years after Edwards was decided, and it ignored the clear mandate of Edwards that an accused who has asserted his right to counsel is not subject to further interrogation unless he initiates further communications with the police. 2. Whether the Fourth Circuit’s conclusion that the mere restatement of the Edwards rule in Solem v. Stumes constituted a new rule conflicts with this Court’s prior rulings and misapplies settled retroactivity principles. (i) ii RULE 28.1 LIST OF PARTIES The parties to this proceeding and the proceedings below are the petitioner, Timothy Dale Bunch, and the respondent, Charles E. Thompson, Warden of Mecklen- berg Correctional Center. Respondent has at all times been represented by the Office of the Attorney General of the Commonwealth of Virginia. TABLE OF CONTENTS Page ye ky | | nn i RULE 28.1 LIST OF PARTIES ............... Fe ee oe ii I Be EE EID vines enrnsesnrncsecsesennnescesesenssensenens Vv I I i sanissenevvencivnsbenshiniunssnsopencrtanbistuncenscconinse 1 i clita atrennsetinpebcibivniecesintih tniphtiahondthemtatsies 2 CONSTITUTIONAL AND STATUTORY PROVI- EY TINT TIP ic nnencccwcsed-cnncuecesonitensereecene sb csceutoimice 2 pe ee hs et” | ee ene 3 A. Prior Proceedings ...... eeaeecaniagelcaeniescasascaaincaenaeasisiaaeninn 3 a sanliiicniccedaomnnbcnaninanniictoon 4 C. The Fourth Circuit’s Decision...................2.0........... 6 REASONS FOR GRANTING THE WRIT ........0.......... 8 CTE SS RIT ee Ee 8 I. THE FOURTH CIRCUIT IGNORED PRIOR RULINGS OF THIS COURT WHEN IT FAILED TO APPLY THE CLEAR RULE ANNOUNCED IN EDWARDS v. ARIZONA TO A PETITIONER WHOSE CONVICTION BECAME FINAL MORE THAN TWO YEARS AFTER EDWARDS WAS DECIDED........ ae 10 A. This Court Should Grant Certiorari Because, At The Time Petitioner’s Conviction Became Final, It Was Clear That Edwards Estab- I I a sedinhtionwns 10 B. This Court Should Grant Certiorari Because The Fourth Circuit’s Decision Is Inconsistent With This Court’s Decision In Shea v. Lou- isiana, Which Conclusively Establishes That Petitioner Is Entitled To The Benefit Of a ARI A et Men SE ren LTS NS 14 iv TABLE OF CONTENTS—Continued Page C. Officer Cahill Reinitiated Conversation With I seb cle ean et ee sn 15 Il. THE FOURTH CIRCUIT’S CONCLUSIO THAT THE MERE RESTATEMENT OF THE EDWARDS RULE IN SOLEM v. STUMES CONSTITUTED A NEW RULE CONFLICTS WITH THIS COURT’S PRIOR RULINGS AND MISAPPLIES SETTLED RETROACTIVITY RE ETN LS oS 17 SEIN ci bictieninirs ciepascocnarcecainiasaenteusagsal Sasieiekdateillein 20 gS MT et Beer aL A Oe la Vv TABLE OF AUTHORITIES CASES Page Andrews v. Shulsen, 802 F.2d 1257 (10th Cir. 1986), cert. denied, 485 U.S. 919 (1988)............ 15 Arizona v. Roberson, 486 U.S. 675 (1988) ............. 9,13,17 Bunch v. Commonwealth, 225 Va. 423, 304 S.E.2d 271 (1983) ; cert. denied, 464 U.S. 997 (1983), reh’g denied, 464 U.S. 1064 (1984) _....00 2. passim Bunch v. Commonwealth, 949 F.2d 1354 (4th Cir. | RCE NDE SON Bak Oe Pe Be LN TEE rete DL red Tem passim Butler v. Aiken, 846 F.2d 255 (4th Cir. 1988) ......... 15 Butler v. McKellar, 110 S. Ct. 1212 (1990) ............ 6,18 Cervi v. Kemp, 855 F.2d 702 (11th Cir. 1988) _........ 15 Diaz v. Scully, 641 F. Supp. 1037 (S.D.N.Y. 1986), aff’d, 821 F.2d 153 (2d Cir. 1987), cert. denied, gi , : 5 Peer en tee ents Nene 15 Edwards v. Arizona, 451 U.S. 477 (1981) -............. passim Esquivel v. McCotter, 791 F.2d 350 (5th Cir. BUTE ncitidsietaciniuiadetaaainemanene ‘idbisakcausleeedanes 15 Flournay v. Marshall, 842 F.2d 875 (6th Cir. p> | ITS TET SE UR TN NE ne Mk ORO LI eRe 15 Greenwalt v. Ricketts, 784 F.2d 1453 (9th Cir. 1986), cert. denied, 479 U.S. 890 (1986) -........... 15 Johnson v. Zerbst, 304 U.S. 458 (1938) 00.2. 11, 16 McFadden v. Garraghty, 820 F.2d 654 (4th Cir. SN RN i PS BSE le RESET, 9,13, 14 Michigan v. Jackson, 475 U.S. 625 (1986) _.......... 9,12, 16 Miller v. Fenton, 474 U.S. 104 (1985) ..00 0. 16 Minnick v. Mississippi, 111 S. Ct. 486 (1990) _....... 9,13 Oregon v. Bradshaw, 462 U.S. 1039 (1983) -........... 7,8,12 Penry v. Lynaugh, 492 U.S. 302 (1989) _.00000000.... 18 Peterson v. Bass, 2 Va. App. 314, 343 S.E.2d 475 II dates aialisdelih assign Giadiieatiaaiatdie pe Coker nars eee es 1 3 Rhode Island v. Innis, 446 U.S. 291 (1980) ............. 16 Shea v. Louisiana, 470 U.S. 51 (1985) .....0000.... 9,14, 15, 19 Simpson v. Commonwealth of Masssachusetts, 795 F.2d 216 (1st Cir. 1986), cert. denied, 479 U.S. A ENT AME C TGP ey ee eee ae 15 Smith v. Illinois, 469 U.S. 91 (1984) _000 eee. 9,12 Solem v. Stumes, 465 U.S. 638 (1984) ....0000 000... passim Stringer v. Black, 112 S. Ct. 1130 (1992) —........... 10, 18 vi TABLE OF AUTHORITIES—Continued Teague v. Lane, 489 U.S. 288 (1988) ........................ United States Ex Rel. Adkins v. Greer, 791 F.2d 590 (7th Cir. 1985), cert. denied, 479 U.S. 989 2) | RRA cee hole Leer oa ene eon ae nated United States v. Johnson, 457 U.S. 537 (1982) ..... United States v. Renda, 567 F. Supp. 487, aff’d, 768 F.2d 649 (4th Cir. 1966) ................................ Vogel v. Commonwealth of Pennsylvania, 790 F.2d REN es See ee Wilson v. Murray, 806 F.2d 1232 (4th Cir. 1986), cert. denied, 484 U.S. 820 (1987) ......... diehubtacks Wyrick v. Fields, 459 U.S. 42 (1982) -.....0000000..... ee Yates v. Aiken, 484 U.S. 211 (1988) ~...000000222 STATUTES AND REGULATIONS A Re ppb Sir Dee ae ee NT ee Eee Be Can) NED sercinenesir-nsnsienacemmincnsinmeniaaiaaieana 1 Ew) IN THE Suprenve Court of the United States OCTOBER TERM, 1991 No. TIMOTHY DALE BUNCH, - Petitioner, CHARLES E. THOMPSON, Warden, MECKLENBERG CORRECTIONAL CENTER, Respondent. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PETITION FOR WRIT OF CERTIORARI The petitioner, Timothy Dale Bunch, respectfully prays that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Fourth Circuit, entered in the above-entitled proceed- ing on January 31, 1992. In addition, petitioner respect- fully submits that a summary reversal of the Fourth Circuit’s decision is warranted in this case. Petitioner is currently under sentence of death in the Commonwealth of Virginia. OPINIONS BELOW The opinion of the Court of Appeals for the Fourth Cireuit and the dissent are reported at 949 F.2d 1354 and reprinted in the Appendix hereto (“App. at ) The Fourth Circuit’s denial of rehearing (2-1) and re- hearing en banc (8-4) is not reported but is reprinted in the Appendix. 2 The memorandum decisions of the United States Dis- trict Court for the Eastern District of Virginia (Spencer, J.) have not been reported, but are reprinted in the Appendix. JURISDICTION Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). The judgment and opinion of the Fourth Circuit was rendered on November 27, 1991. A timely petition for rehearing and suggestion for rehearing en banc was de- nied by the Fourth Circuit on January 31, 1992. Accord- ingly, the time for filing this petition expires on April 30, 1992. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED This case involves the following Constitutional pro- visions: a. The Fifth Amendment to the United States Con- stitution, which provides in pertinent part: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law... b. The Fourteenth Amendment to the United States Constitution, Section 1, which provides in pertinent part: [NJor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 3 STATEMENT OF THE CASE A. Prior Proceedings On August 1i, 1982, Timothy Dale Bunch was con- victed of capital murder in the Circuit Court of Prince William County, Virginia. The trial judge affirmed the sentence of death on November 12, 1982. The Virginia Supreme Court affirmed the conviction and sentence on June 17, 1983. Bunch v. Commonwealth, 225 Va. 423, 304 S.E.2d 271 (1983), cert. denied, 464 U.S. 977 (1983), reh’g denied, 464 U.S. 1064 (January 9, 1984). On September 26, 1983, the Supreme Court of Virginia stayed the execution of judgment pending further order of that court. On February 27, 1984, Bunch filed a writ of habeas corpus in the Circuit Court of Prince William County, Virginia. The Circuit Court denied Bunch’s requested relief on May 28, 1985. Bunch filed a notice of appeal with the Court of Ap- peals of Virginia. An order staying the execution pend- ing further proceedings was signed by Judge Thornton on August 2, 1985. On July 6, 1987, the Court of Appeals of Virginia dismissed the appeal for lack of jurisdiction based on Peterson v. Bass, 2 Va. App. 314, 343 S.E.2d 475 (1986). On August 4, 1987, Bunch filed a petition for appeal in the Supreme Court of Virginia. The Virginia Supreme Court, upon consideration of all briefs filed, refused the petition for appeal on February 26, 1988, without stating the grounds for its decision. On October 6, 1988, Bunch filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia (Richmond Division). The Commonwealth’s motion to dismiss the petition was granted in the District Court’s Memorandum Opinion dated March 16, 1990. 4 On March 30, 1990, Bunch filed a motion to alter or amend the March 16, 1990 judgment. Bunch’s motion was denied in the District Court’s Memorandum Opinion dated June 4, 1990, and Bunch noted his appeal on June 19, 1990. On September 21, 1990, Bunch filed his brief to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit rejected Bunch’s claims in a 2-1 decision issued on November 27, 1991. Bunch filed a timely petition for rehearing and suggestion for rehear- ing en banc on December 10, 1991. The Fourth Circuit denied rehearing (2-1) and rehearing en bane (8-4) on January 31, 1992. B. Statement of Facts The facts underlying Bunch’s claims are undisputed. On January 31, 1982, Su Cha Thomas was killed. Shortly thereafter, Bunch became a suspect in Ms. Thomas’s death. Virginia authorities * travelled to Japan, where Bunch was serving as a sergeant in the United States Marine Corps, to interview him. During the inter- view, Bunch requested counsel. At the hearing on Bunch’s motion to suppress state- ments made in Japan, Bunch testified that he repeatedly requested counsel. The Virginia authorities testified that Bunch mentioned the need for counsel on only one occa- sion, and that he stated, “he might want to talk to an attorney.” The trial court specifically rejected the testi- mony of the Virginia authorities, and found uncondi- tionally that Bunch had requested counsel: I have no question in my mind somewhere along the interview he [Bunch] indicated the feeling that he 1 The Virginia authorities who interviewed Bunch in Japan were Donald L. Cahill, Criminal Investigator for the Prince William County Police Department, and Assistant Commonwealth Attorney for Prince William County, William D. Hamblen. ae 5 should have an attorney present, and at that point red flags should fly up everywhere. The whole ma- chine should go tilt particularly, with an attorney, a Commonwealth attorney sitting in there. (A. 118). Despite Bunch’s request for counsel, the investigators continued to question him. The trial court ruled that the continued questioning of Bunch after his assertion of his right to counsel required the suppression of all statements made by Bunch in Japan. Bunch v. Commonwealth, 304 S.E.2d 271, 274-275 (Va. 1983). The trial court’s factual finding that Bunch requested and was denied his right to counsel is presumed to be correct in this Court, see 28 U.S.C. § 2254(d), and is amply supported by the record. Bunch was transported from Japan to Quantico, Vir- ginia in the custody of military personnel. Bunch was not given the opportunity to consult with an attorney dur- ing his thirty-six hour journey from Japan to the United States. Upon his arrival at Quantico, Bunch was proc- essed for delivery to Prince William County authorities. At Quantico, Bunch had a brief meeting with a Major Jillisky, a Marine Corps civil lawyer. The purpose of the meeting was to inform Bunch of his transfer to civilian authorities. Jillisky specifically informed Bunch that he was not his attorney, and the trial court found that the conference did not satisfy Bunch’s right to counsel. Despite the fact that Bunch had yet to confer with a lawyer, Officer Cahill, who had been with Bunch when he asserted his right to counsel in Japan, reopened the questioning while the two were en route to the Prince William County Substation. He “asked Bunch if he felt he was ready to sit down and go over the case.” Jd. at 275. In response, Bunch made several incriminating statements. At the 1982 hearing on the motion to suppress the statements made in Virginia, Bunch’s trial counsel argued that this Court’s decision in Edwards v. Arizona, 451 6 U.S. 477 (1981) controlled, and that Edwards required that the statements made by Bunch in response to Cahill’s reinitiation of questioning be suppressed. The prosecu- tion, relying on Justice Powell’s concurrence in Edwards, argued that Edwards did not require suppression. The trial court ignored the first prong of the two-step inquiry established in Edwards, i.e., the requirement that after a request for counsel has been made, a valid waiver must be based on a finding that it was the accused who fur- ther initiated conversations with police. Instead, the court simply found that under the totality of circum- stances, Bunch waived his previously invoked right. (A. 126-161). The trial court never addressed the ques- tion of who initiated the second colloquy. C. The Fourth Circuit’s Decision Bunch maintains that the statements made in Virginia should have been suppressed under Edwards,’ and in his dissenting opinion, Judge Sprouse of the Court of Ap- peals for the Fourth Circuit agreed. Despite the fact that Edwards was decided well before Bunch’s conviction became final, the Fourth Circuit ma- jority held that since the “question on which the Vir- ginia Supreme Court ruled was ‘susceptible to debate among reasonable minds’ at the time,” Bunch v. Thomp- son, 949 F.2d at 1859, App. at 6a, a reversal of Bunch’s ease on collateral review would violate the “new rule” doctrine of Teague v. Lane, 489 U.S. 288 (1989) and Butler v. McKellar, 110 S. Ct. 1212 (1990). Jd. The court strained to apply the new rule doctrine to Bunch’s case by reasoning that while Edwards “seems clear to- day,” id. at 13860, App. at 7a, the “holding was not uni- versally clear to state courts” at the time, and that the Virginia Supreme Court’s opinion “must be considered a reasonable application of that case.” Jd. at 1861, App. at 10a. The two-judge majority implied that it took this 2 Bunch has raised this issue at every stage of his case, and thus, there is no issue of procedural default. ae 7 Court’s decision in Solem v. Stumes, 465 U.S. 638 (1984), to establish the clarity of Edwards, and it deemed the reiteration of the Edwards rule in Solem to be a “new rule” which it declined to apply retroactively to Bunch’s case. Bunch, supra, 449 F.2d at 1360, App. at 7a. In his dissent, Judge Sprouse rejected the majority’s approach: It is the majority’s view that not until Solem was Edwards clarified as establishing “a bright-line rule that before a suspect can waive his invoked right to counsel he must be the party to initiate subsequent communication.” In my view, the bright-line rule was clearly an- nounced in Edwards. Solem did not alter or modify the Edwards rule. Since the parameters of the waiver of counsel requirements were established in Edwards, consideration of Teague’s retroactivity principle is simply misplaced. Id. at 13868, App. at 23a-24a. Judge Sprouse recited the plain language of Edwards and traced the history of the decisions which followed, including Oregon v. Bradshaw, 462 U.S. 1039 (1983) in which “eight members of the Supreme Court restated that the waiver ruling in Edwards was absolute.” Bunch, supra, 949 F.2d at 1868, App. at 25a. Judge Sprouse disputed the majority’s characterization of Solem as a “new rule,” since “it neither extended nor modified Ed- wards.” Id., App. at 26a. While the majority insisted that the Virginia Supreme Court, prior to Solem, could have reasonably interpreted Edwards to permit Officer Cahill’s reinterrogation of Bunch, Judge Sprouse main- tained: Not even in the most generous recognition of comity . could we suggest that a state court’s interpre- tation of a United States Supreme Court decision on federal constitutional law is reasonable when the United States Supreme Court has reached a contrary conclusion. 8 ... [I]f the majority of the Supreme Court holds the Edwards opinion to be clear—it is clear. Id. at 1369-70, App. at 27a. Finally, Judge Sprouse ex- plained that the concerns for the administration of crimi- nal justice in state courts embodied in Teague would in fact be frustrated by the majority’s approach: The majority opinion here . . . would interpret Teague as allowing lower courts to render a clear decision of the Supreme Court unclear; the result produces the very lack of finality the majority panel here decries. Id. at 1870, App. at 28a. REASONS FOR GRANTING THE WRIT INTRODUCTION Petitioner’s Fifth Amendment claim is based on this Court’s 1981 decision in Edwards v. Arizona, supra. Peti- tioner submits that a reading of Edwards, the Fourth Circuit’s majority opinion rejecting his claim, and Judge Sprouse’s dissent establishes several reasons why this Court should grant certiorari and consider summary re- versal of the Fourth Circuit’s ruling. Specifically, petitioner submits that the majority’s rea- soning and conclusion are fundamentally flawed and that certiorari and summary reversal are proper for the fol- lowing reasons: 1. The majority’s characterization of Edwards as vague is flatly inconsistent with the plain language of Edwards and this Court’s reaffirmations of its 1981 deci- sion. See Wyrick v. Fields, 459 U.S. 42, 45-46 (1982) (Edwards “held that once a suspect invokes his right to counsel, he may not be subjected to further interrogation until counsel is provided unless the suspect himself ini- tiates dialogue with the authorities”); Oregon v. Brad- shaw, 462 U.S. at 1054, n.2 (1983) (noting that eight justices agree that Edwards created a per se rule) ; Solem 9 v. Stumes, 465 U.S. at 646 (Edwards established a per se rule); Smith v. Illinois, 469 U.S. 91, 98 (1984) (“Edwards set forth a bright-line rule that all question- ing must cease after an accused requests counsel”) ; Michigan v. Jackson, 475 U.S. 625, 634 (1986) (“one of the characteristics of Edwards is its clear, bright-line quality”); Arizona v. Roberson, 486 U.S. 675, 682 (1988) (“surely there is nothing ambiguous about the holding in Edwards”) ; Minnick v. Mississippi, 111 S. Ct. 486, 490 (1990) (“the merit of the Edwards decision lies in the clarity of its command and the certainty of its application” ) .* 2. The majority’s conclusion that retroactivity prin- ciples preclude petitioner from benefiting from the rule in Edwards runs counter to this Court’s direction in Shea v. Louisiana, 470 U.S. 51 (1985), that Edwards should be applied to all defendants whose convictions became final after May 18, 1981, the date on which Edwards was decided. It is undisputed that petitioner’s conviction did not become final until more than two years after Edwards was decided. 3. The majority’s conclusion that Solem v. Stumes, supra, established a “new rule” is similarly inconsistent with this Court’s prior rulings, and it distorts settled retroactivity principles. Solem v. Stumes concerned the retroactivity of the Edwards rule. The Court repeated ‘the rule, but did not clarify or modify Edwards. See Michigan v. Jackson, 475 U.S. at 626 (“[i]n Solem v. 3 Indeed, the majority’s characterization of Edwards as unclear was inconsistent with the Fourth Circuit’s own prior rulings. See United States v. Renda, 567 F. Supp. 487, 488, aff'd, 758 F.2d 649 (4th Cir. 1985) (“Edwards is a per se rule”) ; Wilson v. Murrey, 806 F.2d 1232, 1237 (4th Cir. 1986), cert. denied, 484 U.S. 820 (1987) (Edwards constructed a prophylactic rule of considerable impermeability) ; McFadden v. Garraghty, 820 F.2d 654, 658 (4th Cir. 1987) (“Edwards set down a rigid prophylactic rule”). The majority opinion does not address these cases, although all were cited below by the petitioner. 10 Stumes we reiterated that Edwards established a bright- line rule to safeguard pre-existing rights’). Petitioner submits that a grant of certiorari and sum- mary reversal is especially proper in light of this Court’s continuing insistence upon adherence to the Edwards rule, see Minnick, Roberson, Jackson, Smith, Solem, Bradshaw, Wyrick and Edwards, and because of the lower court’s improper use of retroactivity and “new rule” principles. See Stringer v. Black, 112 S. Ct. 1180, 1134 (1992) (since case relied upon by petitioner did not “break new ground,” it did not announce a new rule, and Supreme Court reversed Fifth Circuit’s improper application of new rule doctrine). I. THE FOURTH CIRCUIT IGNORED PRIOR RUL- INGS OF THIS COURT WHEN IT FAILED TO APPLY THE CLEAR RULE ANNOUNCED IN EDWARDS v. ARIZONA TO A PETITIONER WHOSE CONVICTION BECAME FINAL MORE THAN TWO YEARS AFTER EDWARDS WAS DECIDED. A. This Court Should Grant Certiorari Because, At The Time Petitioner’s Conviction Became Final, It Was Clear That Edwards Established A Per Se Rule. The Fourth Circuit majority concluded that at the time the Virginia Supreme Court decided petitioner’s claim, the meaning of Edwards was unclear. Bunch v. Thomp- son, 949 F.2d at 1360, App. at 7a. The operative date for deciding whether the Edwards holding applies to Bunch is not the date on which the Virginia Supreme Court decided his appeal, but rather the date on which his conviction became final, i.e., when this Court denied his petition for certiorari on direct review of his state conviction—January 9, 1984. See Stringer v. Black, 112 S. Ct. at 1134 (“Petitioner’s conviction became final when we denied certiorari.”). This Court has repeatedly told lower courts that Edwards established a “bright-line rule,” and at the time petitioner’s conviction became final, it was clear that Edwards established a per se rule. ill 11 Prior to the decision in Edwards, the standard for de- termining whether a suspect in custody had waived his previously asserted right to counsel was whether, under the totality of circumstances, the suspect knowingly and intelligently waived his right to counsel. Johnson v. Zerbst, 304 U.S. 458, 464 (1988). The decision (6-3) in Edwards changed the standard for waiver under those circumstances. The Court stated unconditionally: We now hold that when an accused has invoked his right to have counsel present during custodial in- terrogation, 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 [again] been advised of his right. We further hold that an accused ... having expressed his desire to deal with police through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, wuless the accused himself initiates further communication, exchanges or conversations with the police. Edwards, 451 U.S. at 484-85 (emphasis added). The holding in Edwards was neither ambiguous nor equivocal. Indeed, the Edwards Court left no doubt as to what it meant when it added that any finding of a valid waiver must include “the necessary fact that the accused, not the police reopened the dialogue with the authorities.” Id. at 486 and n.9. After Edwards, once it has been established that the accused invoked his right to counsel, courts must under- take a two-step inquiry to determine whether the accused subsequently waived that right. First, the accused must be found to have initiated later conversations with the police, and second, it must be clear from the totality of circumstances that the accused knowingly, voluntarily and intelligently waived his right to counsel. Therefore, under Edwards, an accused who has not reinitiated com- munication with the police cannot be found to have waived 12 his right to counsel. See Smith v. Illinois, 469 U.S. at 95 (if the accused invoked his right to counsel, courts may admit his responses to further questioning only on find- ing that he (a) initiated further discussions with police, and (b) knowingly and intelligently waived the right he had invoked) (emphasis added). A majority of this Court reaffirmed the clear holding of Edwards in two decisions rendered prior to the date on which petitioner’s conviction became final. In Wyrick v. Fields, 459 U.S. at 45-46,‘ this Court repeated its hold- ing in Edwards: In Edwards, this Court had held that once a suspect invokes his right to counsel, he may not be subjected to further interrogation until counsel is provided un- less the suspect himself initiates dialogue with the authorities. In Oregon v. Bradshaw, supra, eight Justices agreed that Edwards altered the Zerbst standard of waiver and hence established a per se rule. Bradshaw, 462 U.S. 1054 and n.2. Thus, prior to the date on which petitioner’s convic- tion became final, a majority of this Court held Edwards to be clear. Decisions of this Cuurt rendered after petitioner’s con- viction became final confirm that a majority of the Court has always regarded Edwards as being clear and un- equivocal. For example, in Smith v. Illinois, 469 U.S. at 95 (1984), the Court remarked that “Edwards set forth a bright-line rule that all questioning must cease after an accused requests counsel.” In Michigan v. Jackson, 475 U.S. at 634 (1985), the Court stated that “one of the characteristics of Edwards is its clear, bright-line quality.” 4In Wyrick, the Court reversed an Eighth Circuit decision because it went beyond Edwards and fashioned another per se rule of its own, requiring the police to advise a suspect of his rights a second time notwithstanding a voluntary and intelligent waiver. Wyrick, 459 U.S. at 48. 13 Similarly, in Arizona v. Roberson, 486 U.S. at 682 (1988), the Court emphasized that the Edwards rule serves the purpose of providing “clear and unequivocal guidelines to the law enforcement profession.” Most re- cently, in Minnick v. Mississippi, 111 S. Ct. at 490 (1990), the Court noted that “the merit of the Edwards decision lies in the clarity of its command and the cer- tainty of its application.” ° As this Court stated in Roberson and as petitioner contends: Surely there is nothing ambiguous about the require- ment that after a person in custody has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further com- munications, exchanges or conversations with the police. Arizona v. Roberson, 486 U.S. at 682. The Fourth Cir- cuit’s opinion ignores the consistent holdings of this Court. Finally, the Fourth Circuit’s ruling its flatly incon- sistent with its own decisions holding Edwards to be clear. See United States v. Renda, supra, n.3, 567 F. Supp. at 489 (Edwards is a per se rule); Wilson v. Murray, supra, n.8, 806 F.2d at 1237 (Howards con- structed a prophylactic rule of considerable impermeabil- ity) ; McFadden v. Garraghty, supra, n.3, 820 F.2d at 658 (accord). Bunch relied on these cases below, but the majority opinion did not cite or attempt to distinguish these decisions. The McFadden case is particularly significant because there, the Fourth Circuit applied the per se rule of 5 The Fourth Circuit’s conclusion that Edwards was vague is based entirely on the concurring opinions of Justice Powell in Edwards and Bradshaw. It is axiomatic, as Judge Sprouse stated in his dissenting opinion, that one Justice’s opinion cannot countermand the law set forth in a decision of the Court. 14 Edwards to an appellant whose conviction became final nine months before Bunch’s conviction became final. McFadden, 820 F.2d at 655-56. The Fourth Circuit applied Edwards to that appellant’s claim that his con- fession was obtained in violation of his Fifth Amendment privilege. Jd. at 657-58. The McFadden court made no reference to the Solem v. Stumes decision because it rec- ognized that Edwards established a “rigid prophylactic rule,” and that under Edwards, courts must “first deter- mine whether the accused actually invoked his right to counsel.” Jd. at 658. “If the accused invoked his right to counsel, courts may admit his responses only on find- ing that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Jd. Thus, in McFadden, the Fourth Circuit applied Edwards in the very manner urged by Bunch. Bunch’s conviction became final after that of the ap- pellant in McFadden. Despite this fact, the Fourth Cir- cuit majority in Bunch’s case ignored McFadden and constructed a flawed retroactivity argument in order to avoid the consequences of Edwards. Bunch submits that the Fourth Circuit’s decision departs from prior rulings of this Court and directly conflicts with its own prece- dent. Certiorari should be granted. B. This Court Should Grant Certiorari Because The Fourth Circuit’s Decision {Is Inconsistent With This Court’s Decision In Shea v. Louisiana, Which Con- clusively Establishes That Petitioner Is Entitled To The Benefit Of Edwards. Any doubts as to whether the rule established in Edwards applies to petitioner, and any doubts as to whether federal courts are bound to reverse when Edwards has been misapplied, have been resolved by this Court’s decision in Shea v. Louisiana, supra. The issue in Shea was whether Edwards should be applied to cases which were pending on direct appeal at the time Edwards 15 was decided. Shea, 470 U.S. at 52. The Court held that Edwards applies to those defendants whose convictions had not already become final before Edwards was decided. Id. at 58-59.° Edwards was decided on May 18, 1981. See Edwards, supra. Petitioner’s conviction was affirmed on appeal on June 17, 1983, and it became final on January 9, 1984. See Bunch v. Commonwealth, supra. Under Shea, because petitioner’s conviction was not final before Edwards was decided, he is entitled to the full benefits of that ruling. Although petitioner relied upon the case below, the Fourth Circuit ignored Shea, and certiorari is warranted. C, Officer Cahill Reinitiated Conversation With Peti- tioner. The trial court looked only at the totality of the cir- cumstances and did not address the question of whether it was Officer Cahill who initiated the conversation lead- ing to the incriminating statements made in Virginia when he asked Bunch “if he felt ready to sit down and go over the case.”” After concluding that Edwards did not establish a per se rule, the Virginia Supreme Court sum- marily noted that Cahill’s question amounted to “nothing more than an effort to ascertain if Bunch had changed his mind.” Bunch v. Commonwealth, 304 S.E.2d at 277. The 6 Shea has been consistently applied in other circuits. See Simpson v. Commonwealth of Massachusetts, 795 F.2d 216, 219 (1st Cir. 1986), cert. denied, 479 U.S. 1020 (1986); Diaz v. Scully, 641 F. Supp. 1037 (S.D.N.Y. 1986), aff'd, 821 F.2d 153, 156 (2d Cir. 1987), cert, denied, 489 U.S. 933 (1987) ; Vogel v. Commonwealth of Penn- sylvania, 790 F.2d 368, 380 n.6 (3d Cir. 1986); Butler v. Aiken, 846 F.2d 255 (4th Cir. 1988); Esquivel v. McCotter, 791 F.2d 350 (5th Cir. 1986) ; Flournay v. Marshall, 842 F.2d 875, 878 (6th Cir. 1988) ; United States Ex Rel. Adkins v. Greer, 791 F.2d 590, 595 (7th Cir. 1985), cert. denied, 479 U.S. 989 (1986) ; Greenwalt v. Ricketts, 784 F.2d 1458, 1456 (9th Cir. 1986), cert. denied, 479 U.S. 980 (1986) ; Andrews v. Shulsen, 802 F.2d 1257, 1271 (10th Cir. 1986), cert. de- nied, 485 U.S. 919 (1988) ; Cervi v. Kemp, 855 F.2d 702, 705 and n.9 (11th Cir. 1988). 16 Fourth Circuit majority again failed to apply the Ed- wards two-pronged inquiry and stated that the Virginia Supreme Court’s view “under Edwards was a reasonable application of that case.” Bunch, 949 F.2d at 1360; App. at 10a. First, whether the Virginia Supreme Court’s opinion was a “reasonable application” of the Edwards test is irrelevant. The constitutional effect of Cahill’s question is a legal question and, as such, is subject to the inde- pendent review of this Court. See Rhode Island v. Innis, 446 U.S. at 298-302; Miller v. Fenton, 474 U.S. 104, 112 (1985). The Virginia Supreme Court’s finding is not entitled to any deferrence even if it was “reasonable” or grounded in good faith. The majority below disre- garded its duty to determine whether the Virginia court was right or wrong as a matter of federal constitutional law. Second, the opinions of the Virginia Supreme Court and the Fourth Circuit ignore the government’s heavy burden to demonstrate waiver. Courts will “indulge very reason- able presumption against waiver of fundamental consti- tutional ‘rights,’ Zerbst, 304 U.S. at 464, and “doubts must be resolved in favor of protecting the constitutional claim.” Michigan v. Jackson, 475 U.S. at 633 (1986). Finally, Edwards implements the Miranda bar on in- terrogation after the right to counsel has been asserted by requiring that questioning may not resume unless it is the accused who initiates further “communications, ex- changes, or conversations” with the police. Edwards, 451 U.S. at 484-85. Thus, the fact that Cahill initiated the “exchange” required the trial court to find an Edwards violation. As Judge Sprouse remarked in his dissent, “clearly Cahill, not Bunch, initiated the conversation lead- ing to the subsequent interrogation at the Prince William County police station.” Bunch, 949 F.2d at 1370, App. at 28a. The conclusion of Judge Sprouse is consistent with the clear directive of Edwards that any change of 17 heart must first be voiced by the suspect and not prompted by the authorities.’ See Edwards, 451 U.S. at 484 (“a valid waiver cannot be established by showing only that [the accused] responded further to police-initiated cus- todial interrogation.”). Il. THE FOURTH CIRCUIT’S CONCLUSION THAT THE MERE RESTATEMENT OF THE EDWARDS RULE IN SOLEM v. STUMES CONSTITUTED A NEW RULE CONFLICTS WITH THIS COURT'S PRIOR RULINGS AND MISAPPLIES SETTLED RETROACTIVITY PRINCIPLES The Fourth Circuit held that the rule of Edwards was not adequately clarified until this Court’s decision in Solem v. Stumes, supra. Bunch, supra, 949 F.2d at 1360, App. at 7a. According to the majority, Solem established the “new rule” that once a suspect has invoked his right to counsel, any subsequent conversation must be initiated by him. Jd. It follows, the majority concluded, that be- cause petitioner’s conviction became final one year before the announcement of the “new rule” in Solem, retroac- tivity principles preclude him from receiving the benefits of that ruling. Petitioner submits that the majority’s conclusion is merely a strained attempt to avoid following this Court’s mandate in Edwards, a principle established more than two years before petitioner’s conviction became final. The majority’s suggestion that state courts acting ‘“reason- ably” will be upheld invites state courts to construe Su- preme Court rulings as narrowly as possible. Moreover, the majority opinion establishes a novel and dangerous 7 Petitioner’s position is confirmed by the Court’s decision in Roberson, supra. There, the Court held that an Edwards violation occurred where a different officer initiated reinterrogation three days after Roberson requested counsel and while he was still in police custody. Even more compelling are the facts in petitioner’s case, where reinterrogation was initiated after petitioner had been in the custody of the very officer to whom he originally asserted his request to counsel. 18 principle of constitutional jurisprudence: that lower courts need not follow Supreme Court precedent until the Supreme Court repeats itself. Bunch submits that this Court should soundly reject such an argument. The Court has recently restated how questions of retro- activity should be resolved for cases on collateral review. See Teague v. Lane, supra, 489 U.S. at 301; Penry v. Lynaugh, 492 U.S. 302 (1989) ; Butler v. McKellar, supra, 110 S. Ct. 1212 (1990). Under these cases, new constitu- tional rules of criminal procedure will not be applied to those defendants whose convictions became final be- fore the new rules were announced. Teague, 489 U.S. at 310. A case announces a new rule “when it breaks new ground or imposes a new obligation on the States or the Federal Government,” or if the result was not dictated by precedent existing at the time the defendant’s convic- tion became final.” Butler, 110 S. Ct. at 1216. Petitioner submits that the Solem decision did not break new ground or impose a new obligation on the states or the federal government. Moreover, as discussed above, the result petitioner seeks was dictated by precedent existing at the time his conviction became final. See Stringer v. Black, supra. Significantly, this Court’s decision in Solem did not purport to clarify Edwards. The only question posed in Solem was whether the Edwards rule should be applied retroactively, that is to convictions which became final before Edwards was announced on May 18, 1981. As Justice White, writing for the majority, made clear, “the question in this case [Solem] is whether Edwards should be applied retroactively.” Solem, 465 U.S. at 639. Such an inquiry presumes that Edwards announced a clear rule, and the Solem majority never questioned that fact. It noted, “Edwards established a bright-line rule to safe- guard pre-existing rights.” Solem, 465 U.S. at 646. Thus, Solem did not “break new ground or impose a new obligation on the States or the Federal Government.” As Judge Sprouse explained in his dissent: Re Pd Mel nel PT Te ee thd eat Austen! 1 cath Cele Sine EA Ce LIN 2 pb Ee A Ce diets etl, DA PLM SABI bt I2 BP Pee 19 Retroactivity, not the parameters of Edwards, was the issue in Solem. In fact, whether the treatment of defendant Stumes violated Edwards, was not even an issue for decision. “We .. . assume for present purposes that the conduct at issue here violated Edwards.” Id. at 642. Therefore, Solem could not have established a new rule because it neither ex- tended nor modified Edwards. Bunch, 949 F.2d at 1369, App. at 26a. (emphasis added). Judge Sprouse’s view that Solem did nothing but re- peat Edwards is confirmed by this Court’s opinion ir Michigan v. Jackson, supra, a case cited below but not addressed by the majority. There, this Court stated, “Tijn Solem v. Stumes, we reiterated that Edwards estab- lished a bright-line rule to safeguard pre-existing rights ....” (emphasis added). 475 U.S. at 626. This Court’s own description of what took place in Solem was ignored by the Fourth Circuit majority, and reinforces the notion that Edwards is in fact applicable to Bunch. As Justice Stevens stated for a unanimous court in Yates v. Aiken, 484 U.S. 211, 216 and n.3 (1988) (citing United States v. Johnson, 457 U.S. 537, 549 (1982) ): [Wlhen a decision of this Court merely has applied settled precedents to new and different factual situa- tions, no real question has arisen as to whether the later decision should apply retroactively. In such cases, it has been a foregone conclusion that the rule of the later case applies in earlier cases, because the later decision has not in fact altered that rule in any material way. The Fourth Circuit’s conclusion presents an irreconcil- able conflict with the instruction to the lower courts con- tained in Shea, supra. There, the Court explained: apply Edwards to those defendants whose convictions were not yet final at the time Edwards was decided. The Shea opinion followed Solem, and this Court could have said then that Edwards was to be applied only to those defend- ants whose convictions became final after Solem. The 20 Court drew no such distinction, because this Court has never accorded Solem the significance crafted for it by the Fourth Circuit majority. If the Fourth Circuit were correct, and it was Solem, and not Edwards, that an- nounced the new rule, what rule did the Shea court re- quire federal and state courts to apply to convictions which became final after Edwards but before Solem? The obvious answer is that the decision in Shea required lower courts to recognize and apply the Edwards holding to all convictions which became final after the date that Edwards was decided, i.e., May 18, 1991. The Fourth Circuit ignored this mandate and certiorari and summary reversal should be granted. CONCLUSION Petitioner respectfully submits that certiorari and sum- mary reversal should be granted because the Fourth Cir- cuit’s conclusion that Edwards was ambiguous and not clarified until after petitioner’s conviction became final conflicts with Edwards, this Court’s subsequent applica- tions of Edwards, and settled retroactivity principles. Respectfully submitted, AMY BERMAN JACKSON (Counsel of Record) GERARD F’. TREANOR, JR. KARL A. RACINE VENABLE, BAETJER, HOWARD & CIVILETTI Suite 1000 1201 New York Avenue, N.W. Washington, D.C. 20005-3917 (202) 962-4800 Counsel for Petitioner April 30, 1992 Timothy Dale Bunch APPENDIX i ae “4 Noted és PaaS ats la APPENDIX UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 90-4001 TIMOTHY DALE BUNCH, Petitioner-A ppellant, V. CHARLES THOMPSON, Warden, Respondent-A ppellee. No. 90-4005 TIMOTHY DALE BUNCH, Petitioner-A ppellant, V. CHARLES THOMPSON, Warden, Respondent-A ppellee. Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CA-88-645-R ) Argued: April 11, 1991 Decided: November 27, 1991 Before WIDENER, SPROUSE, and WILKINSON, Cir- cuit Judges. 2a Affirmed by published opinion. Judge Wilkinson wrote the majority opinion, in which Judge Widener joined. Judge Sprouse wrote a dissenting opinion. COUNSEL ARGUED: Amy Berman Jackson, Kar] Anthony Racine, VENABLE, BAETJER, HOWARD & CIVILETTI, Washington, D.C., for Appellant. John H. McLees, Jr., Assistant Attorney General, Richmond, Virginia, for Ap- pellee. ON BRIEF: Gerard F. Treanor, Jr.,. VENABLE, BAETJER, HOWARD & CIVILETTI, Washington, D.C., for Appellant. Mary Sue Terry, Attorney General of Virginia, Richmond, Virginia, for Appellee. OPINION WILKINSON, Circuit Judge: Timothy Bunch was convicted by jury trial and sen- tenced to death for murder in the commission of robbery while armed with a deadly weapon in violation of Va. Code Ann. § 18.2-31(d) (1988). His conviction and sen- tence were affirmed by the Supreme Court of Virginia on direct appeal. The Virginia courts have considered and dismissed Bunch’s state petition of habeas corpus. Bunch is now before this court appealing the district court’s dismissal of his federal habeas petition. He alleges numerous points of constitutional error but argues pri- marily that his confession was admitted in violation of his rights under the Fifth Amendment and that he was denied effective assistance of counsel in violation of the Sixth Amendment. Finding no merit in Bunch’s claims, we affirm the judgment of the district court. I. On January 31, 1982, Bunch killed his girlfriend Su Cha Thomas. The couple was at Thomas’ house, prepar- ing to go out for dinner when Bunch hid in a downstairs 3a bathroom to lure her. After shooting Thomas in the head, Bunch went upstairs and spent an hour or so drinking wine and listening to the stereo. He then ransacked the house, taking Thomas’ Rolex watch, a diamond ring, a string of pearls and a gold chain. Before he left, he tied a knot in the scarf Thomas was wearing, pulled her unconscious body to a door and hung her by the scarf from the doorknob. According to the medical examiner there was a combined cause of death—“a gunshot wound to the head... with a secondary complication, asphyxia- tion by hanging.” Following the murder, Bunch pawned Thomas’ watch. A report that the pawn shop filed with the police set off an investigation of Bunch, who was a sergeant in the United States Marine Corps. Bunch had met Thomas while temporarily stationed at Quantico in Virginia, but had since returned to his permanent station in Japan. Two Virginia officials—police inspector Donald Cahill and an assistant Commonwealth’s attorney—traveled to Japan to question Bunch. They informed Bunch of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), after which Bunch signed a consent form and agreed to talk with them. Bunch asserts that he asked for counsel “approximately a dozen times” during the in- terrogation, while the Virginia officials claim that Bunch never clearly requested counsel but only mentioned once that “he felt like he might want to talk to a lawyer.” At that point, the Commonwealth’s attorney left the room, but Cahill stayed and discussed another matter with Bunch for several minutes. As Cahill got up to leave, Bunch told Cahill he would cooperate and informed him that the gun was at his mother’s house in Indiana and that Thomas’ ring was in Japan. Cahill and the Com- monwealth’s attorney decided that interrogation should not continue unless Bunch signed another consent form. When Bunch refused to sign the form, the interview ended. 4a Bunch, still in military custody, was transported from Japan back to Quantico, which took forty-two hours. Al- though military personnel did not question Bunch, they informed him during the flight of his Miranda rights again. Upon arrival at Quantico, Bunch proceeded through processing for delivery to state authorities. During proc- essing, Bunch met with Major Donald Jillisky, an at- torney with the Marine Judge Advocate General’s Office. Jillisky informed Bunch that he was not present as Bunch’s attorney, but only to advise him of his situation and to transfer him to state authorities. The military attorney told Bunch of the charges he was facing and that he would either have to obtain an attorney or have one appointed for him. Jillisky also instructed Bunch that “he did not have to say anything until he consulted with his lawyer, and that it was probably not in his best interest to say anything until he consulted with his lawyer.” Following completion of the military processing, Bunch was turned over to Investigator Cahill for transportation to the state police station. During the drive, Cahill asked Bunch “if he felt he was ready to sit down and go over the case.’ Cahill informed Bunch that he was under no obligation to speak with Cahill and that the decision was for Bunch to make. Bunch told Cahill he had spoken with an attorney at Quantico who had advised him to contact his own lawyer before making any statements, but had decided to “get it off his chest” and tell the whole story. When they arrived at the station, Bunch was once again advised of his Miranda rights. He signed a consent form and confessed to Cahill. In his confession, Bunch stated that he had decided a few days before killing Thomas to kill someone, probably a prostitute. He de- cided on Thomas because “she was a slut and she re- minded him too much of his wife and he wanted her money.” He told Cahill that he shot Thomas in the head from behind and had a sexual orgasm when doing so. 5a After ransacking the house, he dragged Thomas to the doorknob and hung her by her scarf, again becoming sexually aroused. He gathered her jewelry and left the house. Bunch was tried for murder during the commission of armed robbery. The trial court suppressed the incrim- inating statements that Bunch had made in Japan, con- cluding they had been obtained in violation of his right to counsel. The court held admissible the confession Bunch gave to Cahill in Virginia, however, ruling that he had “intelligently, wittingly, freely and voluntarily” waived his rights. A jury convicted Bunch of capital murder and sentenced him to death based on the “vile- ness” of the crime. See Va. Code Ann. § 19.2-264.2 (1990). The conviction and sentence were affirmed on direct appeal. See Bunch v. Commonwealth, 304 S.E.2d 271 (Va. 1983). Bunch filed a state petition for habeas corpus in Feb- ruary 1984. The trial court dismissed all the asserted points of error except for the claim of ineffective assist- ance of counsel. On that point the court conducted a plenary hearing, after which the court dismissed the claim in May 1985. The Virginia Court of Appeals dismissed Bunch’s appeal for lack of jurisdiction and the Virginia Supreme Court denied Bunch’s petition in February 1988. Bunch then filed a federal habeas corpus petition which the district court dismissed in March 1990. This appeal followed. In his habeas petition, Bunch raises numerous claims of constitutional error. We shall address his two major claims—that his confession was improperly admitted and that he was denied effective assistance of counsel—in the first two sections. We then will discuss the remaining allegations. Il. Bunch’s first argument is that admission of his confes- sion violated both his right to counsel and his right to remain silent. We shall address each claim in turn. 6a A. The Virginia Supreme Court ruled on direct appeal that admission of Bunch’s confession did not violate his right to counsel. On collateral review, our examination of the Virginia Supreme Court’s ruling is guided by the “new rule” doctrine announced in such cases as Teague v. Lane, 489 U.S. 288 (1989), and Butler v. McKellar, 110 S. Ct. 1212 (1990). In Teague, the Supreme Court held that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced” and decided that “a case announces a new rule if the result was not dictated by prececent existing at the time the defendant’s conviction became final.” 489 U.S. at 301, 310 (emphasis in original). Thus, if the question on which the Virginia Supreme Court ruled was “susceptible to debate among reasonable minds” at the time, then a reversal on collat- eral review would be an application of a new rule in violation of Teague. Butler, 110 S. Ct. at 1217-18. “State courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover, during a [habeas] proceeding, new con- stitutional commands.” Engle v. Isaac, 456 U.S. 107, 128 n.33 (1982). Bunch seeks to avoid application of the new rule doc- trine by arguing that the law in existence in June 1983 when the Virginia Supreme Court affirmed his conviction dictated that his confession be suppressed. He bases his argument on Edwards v. Arizona, 451 U.S. 477 (1981), and claims that case clearly established a per se rule that an accused in custody who has invoked his right to counsel cannot waive that right unless he himself ini- tiates further conversation with the police. Bunch main- tains that he never initiated any further exchanges with the police after he invoked his right to counsel and that under the clear rule of Edwards his confessicn should have been suppressed. According to Bunch, the Virginia ™ Ta Supreme Court should never have reached the issue of whether he intelligently and knowingly raived his rights because that issue arises only when the suspect initiates conversation. Our examination of the law at the time of the Virginia Supreme Court decision, however, convinees us that the admissibility of the confession was “susceptible to debate among reasonable minds.” The Virginia Supreme Court ruled the confession admissible both because Bunch “in- telligently, wittingly, freely and voluntarily” waived his right to counsel and because Investigator Cahill’s inquiry did not amount to police-initiated interrogation under Edwards. Bunch, 304 S.E.2d at 277. At that time, Ed- wards did not dictate a contrary conclusion. It seems clear today that Edwards established a bright- line rule that before a suspect can waive his invoked right to counsel he must be the party to initiate subse- quent communication. See Solem v. Stumes, 465 U.S. 638, 646-47 (1984). That holding was not universally clear to state courts struggling with Edwards when the opinion was first issued, however. See, e.g., Richardson v. State, 625 S.W.2d 504 (Ark. 1981); Leuschner v. State, 433 A.2d 1195 (Md. Ct. Spee. App. 1981). Even had that point been perfectly obvious, Edwards left numerous other issues unresolved—most notably, what acts constituted initiation and interrogation. The Edwards opinion never- theless recognized that such matters were germane to any right to counsel analysis. “The Fifth Amendment right identified in Mirenda is the right to have counsel present at any cusiodial interrogation. Absent such inter- rogation, there would have been no infringement of the right that Edwards invoked and there would be no occa- sion to determine whether there had been a valid waiver.” 451 U.S. at 485-86. Justice Powell, concurring in the result in Edwards, was the only one to address directly the meaning of “initiation” and “interrogation” in this context: ti i: 8a {PJolice do not impermissibly ‘initiate’ renewed in- terrogation by engaging in routine conversatiuns with suspects about unrelated matters. And _ police legitimately may inquire whether a _ suspect has changed his mind about speaking to them without an attorney. It is not unusual for a person in custody who previously has expressed an unwillingness to talk or a desire to have a lawyer, to change his mind and even welcome an opportunity to talk. Nothing in the Constitution erects obstacles that preclude po- lice from ascertaining whether a suspect has recon- sidered his original decision. eee ~— 451 U.S. at 490 (citations omitted). Still, the Supreme Court could not agree on what constituted initiation in Oregon v. Bradshaw, 462 U.S. 1039 (1983), a case de- cided shortly after Bunch’s conviction became final. That the Virginia Supreme Court reasonably applied Edwards can readily be seen through an examination of contem- poraneous courts’ interpretations of that case and of the concepts of initiation and interrogation. In Moulds v. State, for example, the Alabama Court of Criminal Appeals considered an accused who had un- equivocally invoked her right to counsel but who had been unable to contact her attorney. 429 So. 2d 1176 (Ala. Crim. App. 1983). A police sergeant spoke with the accused for a few minutes and then told her that her attorney would tell her not to make a statement. The accused responded that she “wanted to go ahead and talk anyway.” The court concluded that “[{t]he defendant’s assertion that she was ready to make a statement, even if made in response to an officer’s inquiry of whether she had ‘changed her mind about speaking to them without an attorney,’ constitutes a communication initiated by the accused under Edwards.” Id. at 1179. See McCall v. State, 501 So. 2d 496, 500 (Ala. Crim. App. 1986). The court also specifically rejected the argument that the ser- 9a geant’s actions constituted interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980): The defendant was subjected to neither “express questioning” nor to “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating re- sponse from the suspect.” 429 So. 2d at 1178 (citing Innis). The Supreme Court of Connecticut reached a similar conclusion in State v. Acquin. 448 A.2d 163 (Conn. 1982). There the suspect had clearly requested counsel but rejected all suggestions for obtaining one. In re- sponse to further police questioning the suspect revealed that “it wasn’t really an attorney that he wanted, it was just somebody he could trust.” Jd. at 170. After poilce brought in the accused’s requested psychiatrist, he con- fessed. Citing Justice Powell's concurrence in Edwards that “police legitimately may inquire whether a suspect has changed his mind,” the court found no Violation of the suspect’s right to counsel. “Unquestionably, the de- fendant invoked his right to counsel. . .. however, sub- sequent legitimate questions to find out whom he wanted showed that the request was not as unequivocal as it appears to be on its face.” Jd. at 176. The Supreme Court of Connecticut also dismissed the idea that the questions directed at clarifying the defendant’s request for counsel constituted interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980). “They were not of the kind likely to elicit an incriminating response.” 448 A.2d at 175. In State v. Scott, 626 S.W.2d 25 (Tenn. Crim. App. 1981), the defendant invoked his right to counsel where- upon the police stopped interrogation. While being escorted back to the holding cell, however, the suspect spoke with his girlfriend who loudly urged him to “tell 10a the truth.” The officer escorting the suspect then asked the defendant whether he wanted to talk about the case or continue to the holding cell. The suspect confessed. The court refused to suppress the statement, concluding that “|t|hese facts cannot be equated with a resumption of the interrogation as condemned by Edwards.” Id. at 29. See also Johnson v. State, 303 S.E.2d 7, 8 (Ga. 1983) (“Police may legitimately inquire whether a suspect has changed his mind about speaking to them with or without an attorney.’”’). The Virginia Supreme Court decision is similar to those of other states interpreting the meaning of initia- tion and interrogation in the immediate aftermath of Edwards. The Virginia court concluded that Cahill’s ask- ing Bunch “if he felt he was ready to sit down and go over the case’ was a legitimate attempt to determine whether Bunch’s decision not to speak with the police without an attorney present had changed. 304 S.E.2d at 277. Cahill testified at the suppression hearing that he asked the question because he knew that Bunch had just spoken with a lawyer. As in the Moulds case, Cahill in- formed Bunch that he “certainly was not required to talk to [Cahill] if he didn’t want to.” This communication from Cahill was a far cry from the communication in Edwards, where the accused was informed that “he had to talk” to the police. The Virginia Supreme Court thus determined that Cahill’s inquiry “amounted to nothing more than an effort to ascertain if Bunch had changed his mind about wanting an attorney and, hence, did not amount to police-initiated interrogation within the mean- ing of Edwards.” 304 8.F.2d at 277. The court’s opinion that Cahill’s question was not police-initiated interroga- tion under Edwards was perfectly consistent with other case law at the time and must be considered a reasonable application of that case. Bunch nevertheless argues that he did not make a knowing and intelligent waiver. This claim has been waived because Bunch did not raise it on state habeas or lla even to the federal district court. See Harrison v. Warden, Maryland Penitentiary, 890 F.2d 676 (4th Cir. 1989); Whitley v. Bair, 802 F.2d 1487 (4th Cir. 1986). The claim is also meritless. Bunch had been informed of his rights numerous times, he had received legal advice to remain silent, he had been informed that he was not required to speak with Cahill, and he had understood that his confession could result in the death penalty. As the Virginia Supreme Court stated, this was a case of an individual who, despite repeated warnings of his rights and con- trary to sound advice “not to say anything,” decided “he was ready to tell the whole story” and “wanted to get it off his chest.” Moments before confessing, he stated in writing that he did not want a lawyer and that he was willing to answer questions. We can conceive of no clearer case of a “ ‘knowing and intelligent relinquishment or abandonment’” of | Miranda] rights. 304 S.E.2d at 277 (citing Wyrick v. Fi lds, 459 U.S. 42 (1982) ). We therefore dismiss Bunch’s claim on collateral attack on the basis of Teague v. Lane and its progeny. Those cases require that the Virginia Supreme Court ruling be judged against the backdrop of other case law at the time of its decision on direct appeal, not against the law that may have evolved during the time that Bunch’s case made its various rounds on collateral review. To grant the writ would hold the Virginia Supreme Court’s application of Edwards in 1988 to be beyond the pale of “reasonable, good-faith interpretation! ] of existing precedents.” Saf- fle v. Parks, 110 S. Ct. 1257, 1260 (1990) (quoting Butler). This we decline to do. The Virginia court was ruling on a close question of law at the margins of the Miranda doctrine, namely, under what circumstances any subsequent conversations between a suspect and officials could be considered a reinitiation of interrogation by the | 12a state. The Virginia Supreme Court’s ruling on that point warrants respect from a federal habeas court as one that reasonable jurists could make. See Butler, 110 S. Ct. at 1217-18.' B. Bunch also argues that his confession should have been suppressed because he asserted his right to remain silent in Japan and Virginia investigators did not “scrupulously honor” that right as required by Michigan v. Mosley, 423 U.S. 96, 104 (1975). When Bunch raised this claim in his state habeas petition, the Commonwealth, in its “Mo- tion to Dismiss,” responded that the claim had been pro- cedurally defaulted because it had not been raised either at trial or on direct appeal. See Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974). The Commonwealth made no other arguments opposing the claim. The circuit court dismissed the claim “for the reasons stated in the Motion to Dismiss.” Thus, the circuit court clearly dismissed the claim on the grounds of the state procedural default. See 1 The dissenting opinion quite fails to appreciate the fact that the rule announced in Edwards did not define all the terms by which the rule would be implemented. The Edwards holding rested upon the concepts of initiation and interrogation, the precise boundaries of which the state courts could legitimately determine were unde- fined. Unlike the dissent, we decline to hold in hindsight that the substantial number of state courts struggling with these concepts were in any way intent upon disregarding higher authority. We have no indication, for example, that Virginia was attempting to do anything other than conscientiously apply the Miranda doctrine. Indeed, state and military authorities gave Bunch his Miranda warn- ings on no less than three separate occasions and the state courts in fact threw out his confession in Japan as violative of his right to counsel. In that same regard, we wish to make plain that federal inter- mediate courts refusing to apply new rules to reverse state convic- tions on collateral attack are not criticizing any lack of clarity in earlier Supreme Court decisions, but are only acknowledging what Teague and its progeny now require us to acknowledge—that even the clearest decisions will leave some questions for the state courts in good faith to resolve. l3a Coleman v. Thompson, 111 S. Ct. 2546, 2559-61 (1991) (grant of a motion to dismiss on state procedural grounds neither rests on nor is interwoven with federal law). The Supreme Court of Virginia refused the peti- tion for appeal “{u]pon review of the record in this case and consideration of the argument submitted in support of and in opposition to the granting of an appeal.” This order of the Virginia Supreme Court provides no evidence that that court considered the claim on the merits. Where “the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later deci- sion rejecting the claim did not silently disregard that bar and consider the merits.” Ylst v. Nunnemaker, 111 S. Ct. 2590, 2594 (1991). In such circumstances, the procedural default must be considered an adequate and independent state ground that forecloses review of the claim in federal] court. Coleman, 111 S. Ct. at 2557-61. ITT. Bunch next argues that he was denied the right to ef- fective assistance of counsel in violation of the Sixth Amendment. His primary point is that trial counsel was ineffective in preparing and presenting mitigating evi- dence at the sentencing phase of the trial. He addition- ally raises other allegations of deficient performance that the government urges are procedurally barred. We shall address these arguments in turn. A. The standard of review for ineffective assistance of counsel claims is a familiar one. Under Strickland v. * Relying on Justice O’'Connor’s concurring opinion in Duckworth v. Eagan, 492 U.S. 195 (1989), the Commonwealth argues that fed- eral courts should not apply on collateral review the exclusionary rule for Miranda violations. See Stone v. Powell, 428 U.S. 465 (1976) (federal habeas courts reviewing state criminal convictions will not apply the exclusionary rule for Fourth Amendment viola- tions). Because we rest this decision on narrower grounds, we need not address this question. l4a Washington, 466 U.S. 668, 687 (1984), in order to estab- lish a violation of his Sixth Amendment rights, Bunch must show that his counsel’s performance was deficient and that the deficiency so prejudiced his defense as to deprive him of a fair trial. This is no insubstantial bur- den, as “(t]he benchmark for judging any claim of in- effectiveness must be whether counsel’s conduct so under- mined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Jd. at 686. Bunch asserts that his court-appointed attorneys per- formed inadequately by failing to investigate and present potentially mitigating factors at the sentencing phase. Bunch presented to the state habeas court numerous affi- davits containing mitigating evidence that he asserts was easily available during the trial. Those affidavits came from various family members and friends, a few neigh- bors, a law student who interviewed military officers who had some contact with Bunch, and Bunch’s state habeas attorney who had interviewed Bunch’s ex-wife. Bunch argues that his counsel should have offered the jury more mitigating evidence than simply his mother’s testimony. See Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968). We are unpersuaded. It is becoming all too common- place to charge even diligent counsel in the midst of diffi- cult circumstances with the adverse outcome in a capital case. When examining ineffective assistance claims, how- ever, we must appreciate the practical limitations and tactical decisions that trial counsel faced. “It is all too tempting for a defendant to second-guess counsel’s assist- ance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689. Particularly when evaluating decisions not to investigate further, we must regard counsel’s choices with an eye for “reasonableness in all the cir- a l5a cumstances, applying a heavy measure of deference to counsel’s judgments.” Jd. at 691. Our review of the record reveals that Bunch’s attor- neys made reasonable determinations in deciding how best to present mitigating factors. For example, counsel did not have the psychiatrist who evaluated Bunch for potential mitigating evidence testify before the sentenc- ing jury. Bunch contends that the psychiatrist could have informed the jury of Bunch’s stressful childhood, which included domestic violence, and of his loss of self-esteem following the dissolution of his marriage. In addition, the doctor could have testified that Bunch’s lack of a prior criminal record indicated some ability to control his be- havior, that he was under extreme pressure at the time of the murder, and that he had the capacity for rehabili- tation. Counsel was aware of this beneficial testimony but was also cognizant of the risks involved if the psychiatrist had taken the standard. State psychiatrists had evalu- ated Bunch and made damaging findings of which the prosecution was aware. Had Bunch’s attorneys called their psychiatrist, harmful evidence would have emerged on cross-examination. Counsel feared that the overall im- pact of the psychiatric testimony would be to reinforce all the negative aspects of Bunch’s self-destructive be- havior. Bunch’s lawyers were additionally worried by “some unusual sexual orientation aspects of the case that we in no way wanted the jury to hear about.” Having in- terviewed the state psychiatrists in addition to their own Witness, counsel made a reasoned strategic choice not to offer psychiatric testimony. To use that decision as a basis for finding ineffective assistance would be to insti- tute a rule that psychiatric testimony should always be offered in the sentencing phase, no matter how counter- productive or damaging. This we refuse to do. Trial counsel is too frequently placed in a no-win situation with respect to possible mitigating evidence at the sentencing phase of a capital case. The failure to put on such evi- l6a dence, or the presentation of evidence which then back- fires, may equally expose counsel to collateral charges of ineffectiveness. The best course for a federal habeas court is to credit plausible strategic judgments in the trial of a state case. This view governs our disposition of the remaining mitigation claims. With respect to possible military mitigating witnesses, counsel spoke with the commanding officer of the correctional facility where Bunch had last been stationed as well as with the first sergeant of that facility. The commanding officer reported that Bunch had unsatisfactory working relationships with his peers, had been dismissed from his position for drug related prob- lems and would not have been recommended for re- enlistment. The first sergeant had taken his post after Bunch had been arrested but was familiar with his repu- tation and was unable to offer any positive information. Additionally, counsel contacted the military liaison officer for Bunch’s case and obtained copies of Bunch’s military record to provide the evaluating psychiatrist. With finite hours and other demands in the case, counsel chose not to spend valuable time pursuing what appeared to be an unfruitful line of investigation. This too was a reason- able decision. Counsel contacted and interviewed Bunch’s parents. Although initially hopeful about presenting Bunch’s fa- ther as a favorable witness, counsel was concerned about both his reliability and the possibility of contradictory testimony. For example, Bunch’s father did not show up for an important meeting with counsel because he had gotten drunk the night before. Also, much of the mitiga- tion strategy was to highlight Bunch’s traumatic child- hood, including the facts that Bunch’s father had been mostly absent from the home, had a drinking problem and had been abusive to Bunch’s mother. Counsel worried that Bunch’s father would downplay this history and that they would in effect end up impeaching their own witness. 17a They made a defensible strategic decision not to put him on the stand. Bunch’s mother was prepared for trial and ready to testify to Bunch’s family and social histories, his lack of disciplinary problems in schools, his lack of a criminal record, and his efforts to reconcile with his wife. When she actually testified, however, counsel had to ask a num- ber of leading questions in order to elicit the favorable information. Her emotional effect was blunted, as well, also diminishing her effectiveness as a witness. Bunch now makes much of the outcome that only one witness, who was disappointing, testified in his behalf. Yet when counsel was preparing for the sentencing phase and asked both Bunch and his parents for names of potential witnesses with information that they could not provide, they did not suggest any. While counsel was aware of other family members, they believed that such testimony would only be cumulative with that of Bunch’s mother. One of those whom Bunch now argues that coun- sel should have contacted is his ex-wife. Before the trial, however, Bunch instructed his counsel not to contact his ex-wife or to involve her in the case. It is difficult for us to fault counsel for failing to obtain additional testimony when the client himself was not forthcoming with names. See Strickland, 466 U.S. at 691: Tucker v. Kemp, 776 I’.2d 1487, 1490 (11th Cir. 1985). Under these circumstances we conclude that Bunch’s counsel made reasonable professional judgments and did not render constitutionally defective assistance of eoun- sel. Counsel “did interview all potential witnesses who had been called to [their] attention and [] there was a reasonable basis for [their] strategic decision[s].” Burger v. Kemp, 483 U.S. 776, 794-95 (1987). Bunch has simply not shown that “in light of all the circum. stances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. 18a B. Bunch raises additional claims that his right to effec- tive assistance of counsel was violated. He contends that at the guilt phase of trial his rights were violated by his attorneys’ failures: (i) to conduct adequate voir dire; (ii) to object to the Commonwealth’s opening statement; (iii) to deliver an effective opening statement; (iv) to object to irrelevant inadmissible testimony; (v) to object to improper cross-examination of Bunch; (vi) to pre- serve for review the adequacy of the Indiana search war- rant; (vii) to object to admission of the gun. He also alleges other instances of ineffective assistance at the sentencing phase. We affirm the district court’s judgment that these ad- ditional claims are procedurally barred. The only claim of ineffective assistance of counsel that Bunch presented to the Virginia Supreme Court for collateral review con- cerned counsels’ duty to investigate and present mitigat- ing evidence at the sentencing phase. These other claims are therefore barred under Whitley v. Bair, 802 F.2d 1487, 1500 (4th Cir. 1986), and Wainwright v. Sykes, 433 U.S. 72 (1977). IV. Bunch asserts other points of error which occurred during the guilt phase of the trial. We shall address each in turn. A. Bunch protests the introduction into evidence of two photographs of Thomas: one showing her hanging from the doorknob as she was found, and one black and white photograph of Thomas on the autopsy table. He argues that these photographs were inflammatory and that his conviction and sentence cannot have been the result of a reasoned and rational determination. See Gregg v. Geor- gia, 428 U.S. 153, 190 (1976). Bunch did not challenge at either trial or on appeal the photograph of the crime scene. That claim is therefore 19a precluded. Wainwright v. Sykes, 483 U.S. 72 (1977). With respect to the second print, admission of evidence rests in the sound discretion of the trial court. Absent extraordinary circumstances, such questions of admissi- bility are matters of state law. The court admitted the photo for identification purposes and Bunch has shown no extraordinary circumstances that would justify dis- turbing that ruling. See United States v. MacDonald, 688 F.2d 224, 227-28 (4th Cir. 1982). Admission of the photograph was not a violation of fundamental fairness. See Moore ». Illinois, 408 U.S. 786, 798-800 (1972). B. Bunch also maintains that the evidence at trial was in- sufficient to establish a murder during the commission of a robbery, which was the basis for his capital murder conviction. See Va. Code Ann. § 18.2-31(d) (1988). He argues that where the killing and the unlawful taking are two separate acts and there was no intent to steal at the time of the killing, there is no robbery. See Branch v. Commonwealth, 300 S.E.2d 758, 760 (Va. 1983). Bunch asserts that he had no intent to rob Thomas prior to the murder and took her jewelry only in an attempt to disguise the crime. The Virginia Supreme Court considered this argument on direct appeal and summarized the “overwhelming” evidence that Bunch killed Thomas during commission of a robbery. That evidence included Bunch’s statements to friends before the murder that he needed money badly, that he should “go up there to Dale City and knock that bitch off ... and get her rings and things,” and Bunch’s confession, wherein he said his plan had been “to go down and take her jewelry and kill her and leave the area.” This is more than sufficient evidence that Bunch had the intent to rob Thomas when he killed her. 20a C. Bunch also asserts that his Sixth Amendment right to cross-examine witnesses and his Fourteenth Amendment rights to due process and equal protection were violated when the trial court failed to provide funds for Bunch to hire a pathologist. Bunch waived this claim at trial and did not present it on direct appeal or at any phase of state habeas. It is therefore barred. Wainwright v. Sykes, 433 U.S. 72 (1977); see also Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974) (failure to raise issue at trial and on direct appeal bars state habeas review). D. One of Bunch’s friends testified that Bunch spoke with him two weeks before the murder about wanting to rob a Pizza Hut. Bunch argued at trial and on direct appeal that this evidence was too remote from the crime to be relevant as to his intent to rob Thomas. On state habeas, Bunch enhanced his argument against this testimony’s admissibility by asserting that it was unduly prejudicial character evidence. He asserts that his preserved claim of irrelevancy was broad enough to incorporate the newer grounds of inadmissibility. Bunch’s objection at trial was framed solely in terms of irrelevancy, however, and not in terms of constitu- tional deprivations. The state habeas court considered Bunch’s argument and granted the government’s motion to dismiss the claim on the grounds of procedural default. This is an adequate and independent state ground for decision that forecloses consideration of the claim on fed- eral habeas review. Coleman v. Thompson, 111 S. Ct. 2546 (1991); Ylst v. Nunnemaker, 111 S. Ct. 2590 (1991). We see no reason in any event to disturb the discretion of the state trial court on this evidentiary ruling. 2la V. Bunch also asserts numerous claims of errors made at the sentencing phase of his trial. We shall address these claims too in order. A. Under Virginia’s capital sentencing scheme, a death sentence cannot be imposed unless a jury determines beyond a reasonable doubt that the defendant represents a future danger to society or that the defendant’s conduct was particularly vile. Va. Code Ann. §§ 19.2-264.2, -264.4(C) (1990). The trial court submitted to the jury only the question of vileness. A jury can impose a sentence of death for vileness only if the defendant’s conduct satisfied one of three statutory predicates: “tor- ture, depravity of mind or aggravated battery to the victim.” Wa. Code Ann. § 19.2-264.4(C) (1990). Bunch argues that the trial court’s instructions regarding the death penalty were constitutionally infirm for two rea- sons. First, he asserts that the court should have in- structed the jurors that they must be in unanimous agree- ment as to which of the three vileness predicates existed. See Andres v. United States, 333 U.S. 740, 748 (1948). Second, Bunch asserts that the vileness predicate is un- constitutionally vague and that the trial court erred in failing to provide a limiting instruction. We find no error in the instructions given by the trial court. With respect to the unanimity claim, we observe that the Virginia legislature has identified three differ- ent types of conduct, any of which would satisfy a finding of vileness. Virginia does not require that the jury iden- tify the particular predicate on which it relies. Clark v. Commonwealth, 257 S.E.2d 784, 791-92 (Va. 1979). The jurors, when polled, indicated that the finding of vileness was unanimous. That affirmance effectively “moots any claim of error in the instructions on unanimity.” - Briley v. Bass, 742 F.2d 155, 166 (4th Cir. 1984) - see also Schad a 22a v. Arizona, 111 S. Ct. 2491, 2496-2500 (1991) (unless statutory alternatives were actually separate crimes, ju- rors’ verdict was unanimous). This court has already considered the argument that the Virginia vileness stat- ute is unconstitutionally vague and has rejected it. See Clozza v. Murray, 913 F.2d 1092, 1105 (4th Cir. 1990). B. Bunch alleges that the trial court erred in failing to strike for cause two jurors who were biased in favor of the death penalty, thus yielding “a jury uncommonly willing to condemn a man to die.” Witherspoon v. Illinois, 391 U.S. 510, 521 (1968). Although Bunch did not raise this claim either at trial.or on direct appeal and it is procedurally barred, Murray v. Carrier, 477 U.S. 478 (1986), Bunch asserts that the alleged error was such a fundamental miscarriage of justice that review is still available. See Sykes, 483 U.S. at 91. The record, however, reveals that neither veniremember was biased. Although both potential jurors had initially agreed with the statement that the death penalty should be imposed in every case of murder regardless of the facts and circumstances, both changed their positions upon immediate requestioning. Failure to strike the po- tential jurors for cause did not lead to a fundamental miscarriage of justice where, as here, they stated their ability to consider fairly and impartially sentences be- sides death. C. The Commonwealth introduced evidence at the sen- tencing phase that Bunch associated with prostitutes and had thoughts about killing people and becoming a mer- cenary hit man. Bunch asserts that this evidence relates only to future dangerousness and not to vileness and should have been excluded from the sentencing phase. This objection was not raised at trial and the state habeas court found the claim procedurally barred under 23a Virginia’s contemporaneous objection rule. Our review of the claim is therefore also barred. Coleman v. Thomp- son, 111 S. Ct. 2546 (1991); Yist v. Nunnemaker, 111 S. Ct. 2590 (1991). D. Bunch finally requests that we declare the Virginia death penalty statute and sentencing procedures to be facially unconstitutional. As the district court observed, the Supreme Court has upheld statutes similar to Vir- ginia’s both as to future dangerousness, see Jurek v. Texas, 428 U.S. 262, 269, 274-76 (1976), and as to vileness. See Gregg v. Georgia, 428 U.S. 153, 201 & n.51 (1976). Bunch’s claim is also conclusory in nature and disregards the multitude of challenges to the application of Virginia’s capital punishment scheme which have been rejected. VI. For the foregoing reasons, we hold Bunch’s claim to be without merit. The judgment of the district court is hereby AFFIRMED. SPROUSE, Circuit Judge, dissenting: I concur in all of the majority opinion except Part IJ. A. which I respectfully dissent. The majority believes that the language used by the Supreme Court in Edwards was confusing and that the Edwards rule was neither bright nor linear. It is the majority’s view that not until Solem was Edwards clari- fied as establishing ‘‘a bright-line rule that before a sus- pect can waive his invoked right to counsel he must be the party to initiate subsequent communication.” In my view, the bright-line rule was clearly announced in Edwards. Solem did not alter or modify the Edwards rule. Since the parameters of the waiver of counsel re- quirements were established in Edwards, consideration 24a of Teaque’s retroactivity principles is simply misplaced. Accordingly, the Virginia courts should have observed Edwards and suppressed Bunch’s statement to Cahill. Although the Edwards majority was challenged within the Supreme Court by two separate opinions, the major- ity rejected those challenges and, as shown in Bradshaw, and Solem, persisted in its view that once a defendant invokes his right to counsel, the accused must initiate conversation to establish a valid waiver. The Supreme Court in EHdwards, realizing that addi- tional safeguards were necessary to protect an accused’s request for counsel, held that: when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further inter- rogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or con- versations with the police. Id. at 484-85 (emphasis added). The six-justice majority could not have been any clearer in its holding that once a suspect invokes his right to counsel, only communica- tion initiated by the accused can provide the basis for further interrogation. Chief Justice Burger concurred only in the judgment because he disagreed with the majority about the need for a “special” rule concerning the waiver of a right to be free from interrogation—opining that the validity of such waivers should be determined under the particular facts and circumstances standard of Johnson v. Zerbst, 304 U.S. 458 (1938). Justice Powell also refused to join 25a the majority. Like Justice Burger, he was of the view that the issue of Edwards’ waiver of counsel should have been considered under the Zerbst standard. Justice Pow- ell also criticized “what appears to be an undue, and undefined, emphasis on a single element: ‘initiation.’ ” Id. at 491-92. The majority here claims Oregon v. Bradshaw, 462 U.S. 1039 (1983), decided six days after Bunch’s state appeal, demonstrates that Edwards was an uncertain rule. In Bradshaw, however, eight members of the Su- preme Court restated that the waiver ruling in Edwards was absolute. The plurality opinion stated: We think the Oregon Court of Appeals misappre- hended the test laid down in Edwards. We did not there hold that the “initiation” of a conversation by a defendant such as respondent would amount to a waiver of a previously invoked right to counsel; we held that after the right to counsel had been asserted by an accused, further interrogation of the accused should not take place “unless the accused himself ini- tiates further communication, exchanges, or conver- sations with the police.” Id. at 1044 (citations omitted). Four dissenting justices agreed. The dissent stated, “To establish a waiver, it would thus be a necessary fact that the accused, not the police, reopened the dialogue with the authorities.” Id. at 1053 (internal quotations, emphasis, and citations omitted). Although the justices disagreed as to whether the defendant had in fact initiated conversation, both the plurality and the dissent agreed the defendant must be the one to initiate conversation for a valid fifth amendment waiver. The issue in Solem v. Stumes, 465 U.S. 638 (1984), was whether Edwards established a “new rule” so as to apply retroactively to a state court decision rendered before Edwards. Justice White, for a five-member ma- jority, wrote: 26a - Edwards established a bright-line rule to safeguard pre-existing rights, not a new substantive require- ment. . . Edwards established a new test for when that waiver would be acceptable once the suspect had invoked his right to counsel: the suspect had to initi- ate subsequent communication... . Before Edwards, the question whether the author- ities could resume questioning after a defendant has asked for an attorney was acknowledged to be ur» settled. Solem, at 646, 648. The Solem court held that since Edwards established a “new rule,” it was not to be retroactively applied. Retroactivity, not the parameters of Edwards, was the issue in Solem. In fact, whether the treatment of defendant Stumes violated Edwards was not even an issue for decision. “We .. . assume for present purposes that the conduct at issue here violated Edwards.” Id. at 642. Therefore, Solem could not have established a new rule because it neither extended nor modified Edwards. The majority here holds that the Virginia Supreme Court could have reasonably interpreted Edwards to sanc- tion the type of reinterrogation conducted by Officer Ca- hill, because not until Solem was it clear that the inter- rogation violated the rule established in Edwards. Be- cause Solem announced a new rule, the majority reasons, it is not to be applied retroactively to Bunch. I disagree. In Teague, Justice O’Connor defined a “new rule:” [A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. ... To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defend- ant’s conviction became final. Teague at 301. It is true that the Supreme Court in considering the ‘new rule” principle of Teague stated: 27a “The ‘new rule’ principle therefore validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be con- trary to later decisions.” Butler, 58 U.S.L.W. 4294, 4296 (March 5, 1990). Not even in the most generous recog- nition of comity, however, could we suggest that a state court’s interpretation of a United States Supreme Court decision on federal constitutional law is reasonable when the United States Supreme Court has clearly reached a contrary conclusion. The majority here relies on the opinion of various state courts to illustrate that other state courts’ interpretation of Edwards was similar to that of the Virginia Supreme Court in this case. The problem I have with that approach is that a majority of the United States Supreme Court justices have expressed views inconsistent with those ex- pressed by these state appellate bodies. Although the majority here may take some comfort from the concur- rence of Justice Powell in Edwards that he found the majority opinion confusing, it goes without saying that if the majority of the Supreme Court holds the Edwards opinion to be clear—it is clear. In collateral review cases, the Supreme Court, of course, is always sensitive to the effect of its opinions on the administration of criminal justice in state courts. Teague at 308. Whether or not this comity concern is really an- other aspect of the sometime tension between concerns of finality on the one hand and fundamental fairness and protection of truth-finding procedures on the other, state court decisions cannot undermine the finality of decisions of the United States Supreme Court, under any of the various formulations for determining issues of retro- activity. See Teague; Griffith v. Kentucky, 479 U.S. 314 (1987); Mackey v. United States, 401 U.S. 667 (1971); Desist v. United States, 394 U.S. 244 (1969); Stovall v. Denno, 388 U.S. 293, (1967): Linkletter ». Walker, 381 U.S. 618 (1965); Palko v. State of Connec- 28a ticut, 302 U.S. 319 (1937). The majority opinion here, however, would interpret Teague as allowing lower courts to render a clear decision of the Supreme Court unclear; the result produces the very lack of finality the majority panel here decries. So no matter how respectable state judicial authorities might be, we are concerned here with a federal constitu- tional issue. Although some state courts have reacted to Edwards as if its intentions were unclear and the announced test confusing, a majority of the Supreme Court has consistently treated it as announcing a bright- line test. The test in Solem is no different than in Ed- wards. Its results were dictated by the existing prece- dent of Edwards. Edwards clearly held that once a sus- pect invokes the right to counsel, police interrogation must not be renewed unless the suspect initiates the conversation. Here Detective Cahill asked Bunch “if he felt he was ready to sit down and go over the case’’—clearly Cahill, not Bunch, initiated the conversation leading to the subse- quent interrogation at the Prince William County police station. That was a violation of Bunch’s fifth and four- teenth amendment rights defined by Edwards. In Affirm- ing the state trial court’s denial of suppression, the Vir- ginia Supreme Court committed constitutional error. Ac- cordingly, I dissent on this issue. 29a UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 90-4001 CA-88-645-R TIMOTHY DALE BUNCH Petitioner-A ppellant, CHARLES THOMPSON, Warden Respondent-A ppellee. No. 90-4005 TIMOTHY DALE BUNCH Pe titioner-A ppellant, V. CHARLES THOMPSON, Warden Respond nt-A ppe llee. On Petition for Rehearing with Suggestion for Rehearing In Bane [Filed January 31, 1992] Appellant’s petition for rehearing and suggestion for rehearing in bane were submitted to this Court. 30a On the question of rehearing before the panel, Judge Wilkinson and Judge Widener voted to deny rehearing. Judge Sprouse voted to grant rehearing, and should be shown as dissenting from the majority’s denial of re- hearing. In a requested poll of the Court on the suggestion for rehearing in banc, Judges Russell, Widener, Hall, Wil- kinson, Wilkins, Niemeyer, Hamilton and Luttig voted to deny rehearing in banc; and Chief Judge Ervin and Judges Phillips, Murnaghan, and Sprouse voted to grant rehearing in banc. As the panel considered the petition for rehearing and is of the opinion that it should be denied, and as the majority of the active circuit judges voted to deny re- hearing in banc, It is ADJUDGED and ORDERED that the petition for rehearing and suggestion for rehearing in bane are denied. Entered at the direction of Judge Wilkinson, with the concurrence of Judge Widener. Judge Sprouse dissents. For the Court, /s/ John M. Greacen CLERK 3la IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION Civil Action No. 88-0645-R TIMOTHY DALE BUNCH, Petitioner, V. CHARLES EF. THOMPSON, WARDEN, Respondent. MEMORANDUM OPINION [Filed Mar. 16, 1990] This matter is before the Court on respondert’s motion tc dismiss the federal habeas corpus petition filed by Timothy Dale Bunch and Bunch’s cross-motion for partial summary judgment. For the reasons stated in this memo- randum opinion, the Court will GRANT respondent’s motion to dismiss the petition. I On January 31, 1982, petitioner Timothy Dale Bunch killed Ms. Su Cha Thomas by shooting her in the head and then using one of her scarves to hang her from a doorknob. An autopsy revealed both a gunshot wound and congestion of blood vessels in the lungs, indicating that her death resulted from a combination of the gunshot wound and the hanging. After the murder, Bunch re- moved several items from Ms. Thomas’ home, including a Rolex watch, a diamond ring, and a pearl necklace. Bunch then ransacked the house in order to make it ap- pear that an intruder had broken in and committed the 32a murder. Later, Bunch stated that he killed Ms. Thomas because “she was a slut and she reminded him too much of his wife and he wanted her money.” Bunch v. Com- monwealth, 225 Va. 428, 430, 304 S.E.2d 271, 280, cert. denied, 464 U.S. 977 (1983). Prior to the murder, Bunch and Ms. Thomas had de- veloped an intimate relationship. Bunch, a sergeant in the United States Marine Corps, was stationed temporar- ily at Quantico, Virginia. He had met Ms. Thomas, a divorcee living in Dale City, Virginia, after he arrived at Quantico in December, 1981. Soon after the murder, Bunch returned to his permanent duty station at Iwakumi, Japan. Before returning to Japan, Bunch sold a watch similar to Ms. Thomas’ at a pawn shop in Arlington County, Virginia. The shop owner reported the sale to the police, who began to investigate Bunch. On February 16, 1982, Investigator Donald L. Cahill and Assistant Common- wealth’s Attorney William Hamblen travelled to Japan with warrants charging Bunch with murder and robbery. ~ Cahill met Bunch, informed him of his Miranda rights, and had Bunch sign a “Warning and Consent” form. Bunch indicated he was willing to talk with Cahill. At some point in the interrogation, Bunch indicated he wanted to talk to a lawyer. Hamblen left the room at that point, and Cahill talked to Bunch about another matter for several minutes. As Cahill was leaving the room, Bunch said he would cooperate. He then told Cahill that “the gun” was at his mother’s home in In- diana and “the ring” was in Japan. At that time, Cahill and Hamblen decided that the questioning should end unless Bunch signed another “Warning and Consent” form. Bunch refused to sign another form, and the interrogation ceased. Three days later, Bunch was moved from Japan to the custody of civil officials in Virginia. He was advised of his Miranda rights again during the trip. Bunch arrived in Quantico i crerrrernieanaacaiaaaiaaanmaiiaiaiiiitel 33a after midnight on February 21 and was processed for delivery to Prince William County authorities. As part of the processing, Bunch spoke with Major Donald R. Jillisky, a lawyer with the Marine Judge Ad- vocate General’s Office. Jillisky described the charges to Bunch and advised him that “he did not have to say any- thing until he consulted with his lawyer and that it was probably not in his best interest to say anything until he consulted with his lawyer.” After processing, Bunch was again turned over to Cahill. On the way to the Garfield police station (“Gar- field”), Cahill asked Bunch “if he felt he was ready to sit down and go over the case” and told Bunch that “at that time it didn’t matter to me if he did or didn’t. It was entirely up to him, and he certainly was not re- quired to talk to me if he didn’t want to.” Bunch said that he had spoken to a lawyer at Quantico and had been advised “not to say anything” and to talk to a lawyer before talking to the police. He also said that he was ready to tell the whole story. At Garfield, Bunch was again given his Miranda warnings and he signed a “Warn- ing and Consent” form. He then confessed the details of the crime to Cahill. Bunch was tried in Prince William County Circuit Court for murder during the commission of armed rob- bery. The trial judge suppressed the statements Bunch made to Cahill while in Japan, finding that Bunch had requested and had been denied the assistance of counsel. The judge found, however, that Bunch had ‘intelligently, wittingly, freely and voluntarily waived his Miranda rights before making the confession in Virginia, and so the Virginia confession was admitted into evidence. After returning a guilty verdict, the jury considered evidence during the sentencing phase of the trial. The jury recommended the death sentence based upon the “vileness” statutory aggravating factor. Va. Code Ann. 34a § 19.2-264.2 (1983). Following preparation of a pre- sentence report, the judge imposed the death sentence on November 12, 1982. Bunch’s appeal was consolidated with the statutory review of his death sentence. The conviction and sentence were affirmed on June 17, 1983. Bunch, 225 Va. 428, 304 §.E.2d 271. Bunch filed a state petition for habeas corpus on February 27, 1984. On November 16, 1984, the trial court dismissed all of Bunch’s claims of error except ineffective assistance of counsel. The judge held a plenary hearing on that claim on January 28, 1985, and dismissed the remainder of the petition on May 28, 1985. Bunch appealed the state habeas corpus decision to the Virginia Court of Appeals, which dismissed it for lack of jurisdiction on July 6, 1987. He then petitioned for ap- peal to the Supreme Court of Virginia, which refused the petition of February 26, 1988. The parties agree that Bunch has no remaining state court remedy. In his federal habeas corpus petition, Bunch alleges a host of violations of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States. They are listed below: I. Guilt Phase A. Bunch’s constitutional rights were violated when the trial court admitted into evidence statements improperly obtained after Bunch asserted his rights to remain silent and to consult with an attorney. B. Bunch’s constitutional rights were violated when the trial court admitted into evidence statements made involuntarily. C. Bunch’s constitutional rights were violated by a conviction based on insufficient evidence of a mur- der during the commission of a robbery. H. 35a Bunch’s constitutional rights were violated by tk trial court’s failure to exclude two jurors for cause. Bunch’s constitutional rights were violated by the admission of irrelevant, unduly prejudicial character testimony. Bunch’s constitutional rights were violated by the admission of inflammatory and highly prejudicial photographs. Bunch’s constitutional rights were violated by his inability to conduct effective cross-examination of the pathologist. Bunch was denied the constitutionally guaranteed effective assistance of counsel because: i. trial counsel failed to conduct an adequate voir dire of prospective jurors; ii. trial counsel failed to object to portions of the Commonwealth’s opening statements which were irrelevant and improper; iii. trial counsel’s opening statement was _ in- effective; iv. trial counsel failed to object to irrelevant, inadmissible testimony ; v. trial counsel failed to object to portions of the Commonwealth’s cross-examination of pe- titioner which were clearly improper and irrelevant; vi. trial counsel failed to preserve for appellate and collateral review the adequacy of the In- diana search warrant; vii. tria! counsel failed to object to the admission of the gun on the grounds that it had not been positively identified as belonging to petitioner ; I. 36a Bunch’s constitutional rights were violated by the denial of a fundamentally fair trial. II. Sentencing Phase A. Bunch was denied his constitutionally guaranteed right to the effective assistance of counsel because: i. trial counsel failed adequately to prepare and present evidence at the sentencing phase of trial; ii. trial counsel failed to object to the jury in- struction given in the sentencing phase of trial and failed to offer other appropriate instructions; iii. trial counsel failed to request a ruling on the future dangerousness issue prior to the sentencing hearing; iv. trial counsel failed to object to the emphasis on future dangerousness testimony during the Commonwealth’s presentation in closing argument. Bunch’s constitutional rights were violated by the admission of irrelevant character evidence. Bunch’s constitutional rights were violated when the jury heard evidence of future dangerousness, a fact later excluded from jury consideration. Bunch’s constitutional rights were violated by the inadequate and confusing instructions given to the jury. . Bunch’s constitutional rights were violated when he was sentenced to death based on insufficient evidence of a statutory prerequisite to the death penalty. Bunch’s constitutional rights were violated when he was denied a fundamentally fair sentencing trial. 37a G. The Virginia death penalty statute and sentencing procedures are facially unconstitutional. H. The Virginia death penalty statute was uncon- stitutionally applied to the facts of this case. I. The Virginia death penalty statute is applied in an arbitrary and discriminatory manner. J. The death penalty constitutes cruel and unusual punishment. K. The penalty of death by electrocution is unneces- sarily cruel and unusual. III. Appellate Phase Bunch’s constitutional rights were violated by the Virginia Supreme Court’s failure to conduct a mean- ingful proportionality review. IV. State Habeas Corpus Phase Bunch’s constitutional rights were violated by the exclusion of relevant admissible evidence in the state habeas corpus proceeding. The Court will address each of these contentions in turn. IT. I. A. Bunch first contends that the confession made upon his return to Virginia from Japan was obtained in violation of his Fifth Amendment right to counsel. He argues that he asserted his right to counsel in Japan and that when the police resumed interrogating him before he had spoken with counsel and without Bunch initiating the conversation, they violated his Fifth Amend- ment rights under Edwards v. Arizona, 451 U.S. 477 (1981). The trial court, finding that Bunch asserted his right to counsel in Japan, suppressed the statements he made in Iwakuni. The court declined, however, to sup- press the Virginia confession, finding under the totality 38a of the circumstances a valid waiver of Bunch’s right to counsel. Bunch argues that Edwards established a per se rule forbidding a finding that a suspect waives his right to counsel unless, after his request for an attorney, he initiates any subsequent interrogation. Bunch argues that under this per se rule the Virginia confession is inad- missible. Respondent argues that Bunch made, at most, only an ambiguous, equivocal reference to a lawyer, and so did not assert his right to counsel during questioning in Japan. Respondent further alleges that the vagueness of Bunch’s comment allowed further questioning in order to ascertain whether he in fact desired to confer with counsel. Finally, respondent claims that Bunch reinitiated the conversation with the officers, thereby allowing those officers to engage in further interrogation. This Court finds it unnecessary to address these issues. Assuming, arguendo, that Bunch did make a valid request for counsel in Japan and that officer Cahill reinterrogated Bunch in Virginia before Bunch was provided counsel, the Court may still find that no Fifth Amendment violation occurred to render the statements in Virginia inadmissible. At the time of Bunch’s arrest and trial, the character of the Edwards rule was at best ambiguous. That ambiguity was not resolved until later, when in Solem v. Stumes, 465 U.S. 638, 647 (1984), the Supreme Court first de- scribed the rule of Edwards as a “per se” rule. Because the Virginia Supreme Court applied a plausible interpre- tation of the Edwards rule in the Bunch appeal, and because the later modification of the Edwards rule should not be applied retreactively to Bunch’s case, this Court finds that the state courts properly applied the “totality of the circumstances” test to find a valid waiver of Bunch’s right to counsel. The waiver being valid, Bunch’s Fifth Amendment rights were not violated, and his statements made in Virginia were properly admitted. Before the Edwards decision, a waiver of the right to counsel was examined based upon the “totality of the 39a circumstances.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Waiver after an accused had specifically in- voked his right to counsel required ‘a knowing and in- telligent relinquishment or abandonment of a known right or privilege, a matter which depend[ed] in each case ‘upon the particular facts and circumstances surrounding that case, including the background, experience, and con- duct of the accused.’ Edwards, 451 U.S. at 482 (quoting Johnson, 304 U.S. at 464). In Edwards, the Court im- plied for the first time that additional safeguards were necessary when an accused requested counsel. The Court held that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrovation by the authorities until counsel] has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards, 451 U.S. at 484-85. Justice Powell concurred in the result in Edwards but refused to join the court’s opinion because he was “not sure what it mean[t].” Jd. at 488 (Powell, J., concur- ring). The Edwards opinion stated the familiar Johnson v. Zerbst standard for waiver. What concerned Powell, however, was the emphasis Edwards placed on “initia- tion.”” Powell was unsure whether Edwards created “a new per se rule, requiring a threshold inquiry as to pre- cisely who opened any conversation between an accused and state officials.” Jd. at 489-90. This possibility troubled Powell because such a rule would “superimpose a new element of proof on the established doctrine of waiver of counsel.” Jd. at 490. a aera reece naan 40a The Supreme Court did little to clarify matters when, the year after Edwards, it issued an opinion in Wyrick v. Fields, 459 U.S. 42 (1982). In Wyrick, the Supreme Court reversed and remanded an Eighth Circuit opinion where the majority had “misconstrued this Court’s recent decision in Edwards v. Arizona and imposed a new and unjustified limit on police questioning of a suspect who voluntarily, knowingly, and intelligently waive[d] his right to have counsel present.” Jd. at 438 (citation omitted). The Court did not address Justice Powell’s concern about the meaning of “initiation,” as it was conceded that the suspect in Wyrick had initiated the interrogation. Jd. at 46. The opinion also did nothing to clarify whether or not Edwards had stated a per se rule forbidding waiver where further interrogation was not suspect-initiated. Instead, the Court’s language sim- ply added to the confusion. The Court stated that “[t]he Eighth Circuit recognized that what it called the ‘per se rule’ of Edwards ‘does not resolve the issue present here,’ ” id. (emphasis added), adding that “[t]he only plausible explanation for the court’s holding is that, encouraged by what it regarded as a per se rule established in Ed- wards, it fashioned another rule of its own.” Jd. at 48 (emphasis added). The Wyrick opinion made no at- tempt to characterize the Edwards rule as a per se rule and reiterated the fact that Edwards “emphasize[d] that the totality of the circumstances, including the fact that the suspect initiated the questioning, is controlling.” Jd. (emphasis added). Finally, the Court held that “[b]e- cause the Court of Appeals misapplied Edwards and created an unjustified per se rule,” id. at 49 (emphasis added), the case would be remanded. After the issuance of the Wyrick opinion, the meaning of the Edwards rule was still ambiguous. The confusion that Edwards and Wyrick created was not confined to Justice Powell’s chambers. In 1983 the Supreme Court decided Oregon v. Bradshaw, 462 U.S. ~ 1039 (1983). Justice Powell wrote a concurring opinion 4la in which he documented the confusion in the lower courts over whether Edwards had announced a new per se rule. Id. at 1047 n.1 (Powell, J., concurring). Powell’s con- currence noted that Justice Marshall and the three Jus- tices who joined Marshall’s Bradshaw dissent read Ed- wards differently than Justice Rehnquist and the three Justices who joined the Rehnquist opinion. While all viewed “the ‘initiation’ question as the first step of a two-step analysis, the second step being the application of the Zerbst standard that require[d] examination of the ‘totality of the circumstances,’” id. at 1048, the two sides disagreed over the meaning of “initiation.” Jd. Full clarification of the Edwards rule was still lacking. The Supreme Court of Virginia decided Bunch on June 17, 1983, six days before the United States Supreme Court decided Bradshaw. The state supreme court re- fused to hold that the Virginia confession should have been suppressed, deciding that “Edwards did not estab- lish, as Bunch seems to suggest, a per se rule forbidding any finding of waiver of counsel unless subsequent in- terrogation is suspect-initiated.” Bunch, 255 Va. at 433, 304 S.E.2d at 276. The court based its decision on its view that in Edwards the Supreme Court “ha[d] not ruled that the only way a suspect may waive the right to counsel at a subsequent interrogation is by initiating the interrogation himself,” id., and went on, using the totality of the circumstances test, to determine that Bunch had made a knowing and intelligent waiver of his right to counsel in Virgina. The court sustained the admission of the confession on alternate grounds by find- ing that Cahill’s inquiry whether Bunch “felt he was ready to sit down and go over the case” was only an at- tempt to seeif Bunch had changed his mind about wanting an attorney, and “did not amount to police-initiated in- terrogation within the meaning of Edwards.” Id. at 434- 35, 304 S.E.2d at 277. Here, the Virginia Supreme Court relied on Powell’s statement that “police legiti- mately may inquire whether a suspect has changed his 42a mind about speaking to them without an attorney.” Ed- wards, 451 U.S. at 490 (Powell, J., concurring). Both of Powell’s concerns, the existence of a per se rule in Ed- wards and the ambiguous use of the term “initiation,” surfaced in the Bunch decision, and the Virginia Supreme Court addressed these issues in a manner compatible with then prevailing law. The Supreme Court did not adequately clarify its Edwards rule until it decided Solem v. Stumes, 465 U.S. 638, a case decided after Bunch had exhausted his direct appeal. The Solem opinion was the first occasion where the Court stated that the Edwards rule was a “per se approach.” Jd. at 647. In fact, in a later case, Smith v. Illinois, 469 U.S. 91, 98 (1984) (emphasis in original), the Supreme Court cited Solem, not Edwards, for the proposition that “Edwards set forth a ‘bright-line rule’ that all questioning must cease after an accused requests counsel.” (emphasis in original). At the time of Bunch’s trial and direct appeal, the rule in Edwards remained ambiguous. Bunch’s statements in Virginia were obtained in strict accordance with established law in Virginia in 1982. The Virginia Supreme Court found a knowing and intelligent waiver of counsel under the totality of the circumstances. The Court noted that it could “conceive of no clearer case of a ‘knowing and intelligent relinquishment or abandon- ment’ of [Miranda] rights.” Bunch, 225 Va. at 434, 304 S.E.2d at 277 (quoting Wyrick, 459 U.S. at 47). The Court’s holding is adequately supported by the law and the record and will not be disturbed in this federal col- lateral proceeding unless the Edwards rule, as eventually clarified in Solem, must be applied retroactively. Solem, the very case which clarified the rule in Edwards vw. Arizona, refused to apply Edwards retroactively. Solem, 465 U.S. at 650. In Solem, the Supreme Court set forth the criteria controllir retroactive application of judicial decisions: caaeeaeieeaceiiiaiiii iii 43a Under these cases, “[t]he criteria guiding resolution of the [retroactivity] question implicate (a) the pur- pose to be served by the new standards, (b) the ex- tent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the ad- ministration of justice of a retroactive application of the new standards.” Id. at 643 (quoting Stovall v. Denno, 388 U.S. 293, 297 (1967) ). The Court stated that retroactive effect is most fitting “where a new constitutiona! principle is designed tc enhance the accuracy of criminal trials,” Solem, 465 U.S. at 643, and that the Edwards rule was “a far cry” from such a case. Jd. at 645. The Court further noted that the reliance interest in Edwards was compelling and that retroactive application of the rule would disrupt the administration of justice. Jd. at 649-50. The Court con- cluded that Edwards should not be applied retroactively, and stated that, “[a]t a minimum, nonretroactivity means that a decision is not to be applied in collateral review of final convictions.” Jd. at 650. The Supreme Court’s reasoning applies with equal force in the present case. If the Edwards rule itself has no retroactive effect during collateral review, then neither should a subsequent clarification of that rule be applied retroactively. The Supreme Court has refused to apply other modifi- cations of the Edwards rule retroactively. The Court re- cently held that Arizona v. Roberson, 486 U.S. 675 (1988), a case applying Edwards limitations on interro- gation in the context of a separate criminal investigation, would not be applied retroactively on collateral review. Butler v. McKellar, 58 U.S.L.W. 4294 (U.S. Mar. 5, 1990) (No. 88-6677). This opinion affirmed the Fourth Cireuit’s decision in Butler v. Aiken, 864 F.2d 24, 25 (4th Cir. 1988), which held that the Edwards-Roberson limitations on police interrogation would not be applied retroactively because they had only “the most tangential relationship to truth finding.” The Supreme Court stated that the Roberson rule was not a new procedure central 44a to an accurate determination of guilt or innocence, and reasoned as follows: Because a violation of Roberson’s added restrictions on police investigatory procedures would not seri- ously diminish the likelihood of obtaining an ac- curate determination—indeed, it may increase that likelihood—we conclude that Roberson did not estab- lish any principle that would [require its retroactive application]. McKellar, 58 U.S.L.W. at 4297. The Supreme Court’s refusal to apply Edwards retro- actively and its similar treatment of the Roberson limita- tions on police interrogation indicate that Bunch is not entitled to retroactive relief. The Supreme Court waited until the Solem decision to announce that Edwards cre- ated a per se rule. This aspect of the Edwards rule does not enhance the accuracy of criminal procedure or aid the truthfinding process. As the Cour [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0590%3A1. Public record. Not legal advice.