United States Court of Appeals,
Eleventh Circuit.
No. 95-2519.
Theodore Augustus BASSETT, Jr., Petitioner-Appellant,
v.
Harry K. SINGLETARY, Jr., Secretary, Florida Department of
Corrections, Respondent-Appellee.
Feb. 20, 1997.
Appeal from the United States District Court for the Middle
District of Florida. (No. 92-215-Civ-Orl-18), G. Kendall Sharp,
Jr., Judge.
Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and COHILL*,
Senior District Judge.
PER CURIAM:
This case is an appeal by Theodore Augustus Bassett Jr.
("Bassett") from the denial by the district court of his Petition
for Writ of Habeas Corpus. The case had been referred to a United
States Magistrate Judge who recommended that the Writ be granted,
but the district court rejected that recommendation and denied the
Writ.
Bassett was convicted of two counts of first degree murder on
January 17, 1980, and sentenced to death on both counts. The
convictions and sentences were affirmed by the Florida Supreme
Court. Bassett v. State, 449 So.2d 803 (Fla.1984). The Florida
Supreme Court subsequently vacated the death sentences and ordered
a new penalty phase. Bassett v. State, 541 So.2d 596 (Fla.1989).
He was sentenced to consecutive life sentences on November 17,
*
Honorable Maurice B. Cohill, Jr., Senior U.S. District
Judge for the Western District of Pennsylvania, sitting by
designation.
1989.
The basis for the present petition is the denial of Bassett's
Motion to Suppress his confession at his original trial.
During the investigation of the two murders, the court
appointed private counsel to represent Bassett because his
co-defendant was already represented by the public defender's
office. At the time, Bassett was incarcerated on an unrelated
felony charge. At the conclusion of the investigation, Bassett's
counsel moved to withdraw since he would be leaving the area. The
court granted the motion but did not immediately appoint new
counsel. Bassett was not informed of his counsel's withdrawal.
The investigating officers approached Bassett in jail after
his counsel had withdrawn. They advised Bassett of his Miranda
rights, and he then asked to speak with his attorney. The officers
told him his attorney had withdrawn, but they stated that they
would contact another attorney for him. When the officers stood up
to leave, Bassett said, "[w]ell, what do you want anyway?" The
officers then told Bassett that they had discovered the bodies of
the two victims and that Bassett's co-defendant had implicated him.
This statement led to a two day confession. The officers
continually gave Bassett Miranda warnings and obtained a signed
waiver of rights form each day.1
Bassett asserts that the use of his confession at trial
1
This factual account is based on the opinion of the Supreme
Court of Florida in affirming the denial of Bassett's Motion to
Suppress his confession. The Supreme Court accepted the factual
findings of the trial court. Bassett, 449 So.2d at 804-05. A
trial court's factual findings are entitled to a presumption of
correctness under 28 U.S.C. § 2254(d).
violated his rights under the Fifth, Sixth and Fourteenth
Amendments. We look to the United States Supreme Court for
guidance in deciding this issue.
In Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880,
1884-85, 68 L.Ed.2d 378 (1981), the United States Supreme Court
held that, once an accused has invoked his right to counsel, a
valid waiver of that right cannot be established by showing only
that he responded to a later police initiated interrogation after
again being advised of his rights. An accused may not be subjected
to further interrogation until counsel has been made available to
him, unless the accused himself has initiated further
communications with the police. Essentially, the Court held that
a waiver of the right to counsel must not only be voluntary but
must constitute a knowing and intelligent relinquishment of a known
right or privilege. The Court stated that "[h]ad Edwards initiated
the meeting [with police officers after having invoked his right to
counsel], nothing in the Fifth and Fourteenth Amendments would
prohibit the police from merely listening to his voluntary
statements and using them against him at the trial." 451 U.S. at
485, 101 S.Ct. at 1885.
The situation we have here falls somewhat short of the
scenario described by the Court in Edwards, where the police
initiated the interrogation and the defendant made the
incriminating statement. Here, the police initiated an
interrogation of Bassett, but then started to leave when he chose
to exercise his right to counsel. As the police began to leave,
Bassett initiated further conversation by inquiring "well, what do
you want, anyway?" Thus, the police appropriately terminated their
interrogation when Bassett invoked his right to counsel. Bassett
himself initiated further conversation by his inquiry.
In Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112
L.Ed.2d 489 (1990), the Court refined Edwards. There, the Court
held that in a custodial interrogation where the accused requests
counsel, interrogation must cease, and the police may not reinstate
interrogation without counsel being present. If Minnick applied to
this case, it would cast doubt on the reopening of the
interrogation without the presence of counsel. The district court,
however, in rejecting the recommendation of the magistrate judge,
held that Minnick announced a new rule of law and could not be
applied to this case on collateral review. Thus, we must decide as
a threshold issue whether the Minnick decision, which was rendered
after Bassett's conviction, applies here.
To address that issue, we consider the Court's holding in
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989). There, the Court set out the criteria for determining
whether a decision could apply retroactively, or whether it was a
"new rule" with only prospective applicability. Under Teague, a
new rule of constitutional law may not be applied on collateral
review. 489 U.S. at 310, 109 S.Ct. at 1075. In other words, only
a rule that is "not new" may be applied retroactively to a
conviction that was final when the rule became law. This "new
rule" principle "validates reasonable, good-faith interpretations
of existing precedent made by state courts even though they are
shown to be contrary to later decisions." Butler v. McKellar, 494
U.S. 407, 414, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990).
Teague provides two exceptions:
(1) if the effect of the new rule is to remove a category
of conduct from the reach of the criminal law or to remove a
class of defendants outside the scope of a particular
punishment; and (2) if the new rule requires procedures that
are implicit to the concept of ordered liberty and "enhance
the accuracy of the fact finding process at trial in such a
way that without them the likelihood of an accurate conviction
is seriously diminished.'
489 U.S. at 311, 109 S.Ct. at 1077; See also Butler, 494 U.S. at
415-416, 110 S.Ct. at 1217-1218. Only if a case falls into one of
these two exceptions may a new rule be applied retroactively.
A rule is new if it imposes a new obligation on the
government, or if it breaks new ground and was not compelled by
existing precedent. Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct.
2934, 2944, 106 L.Ed.2d 256 (1989). Put differently, "a case
announces a new rule if the result was not dictated by precedent
existing at the time the defendant's conviction became final." Id.
(quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070).
In determining whether or not a rule is new, the Supreme
Court focuses on the underlying rationale of the writ. "The
relevant frame of reference ... is not the purpose of the new rule
whose benefit the [defendant] seeks, but instead the purposes for
which the writ of habeas corpus is made available." Teague, 489
U.S. at 306, 109 S.Ct. at 1073 (quoting Mackey v. United States,
401 U.S. 667, 682, 91 S.Ct. 1171, 1175, 28 L.Ed.2d 388 (1971)). A
rule is not new (and thus may be applied retroactively) only if the
underlying rationale of the rule advances the purposes of the writ.
This purpose is to assure that a defendant in a criminal trial was
afforded all constitutional guarantees that were in effect when the
conviction became final, and not to guarantee the protection of
rights that were later announced. Butler v. McKellar, 494 U.S. at
413, 110 S.Ct. at 1216-17 (quoting Teague, 489 U.S. at 306, 109
S.Ct. at 1073). The rationale here is finality: "Application of
constitutional rules not in existence at the time a conviction
became final seriously undermines the principle of finality which
is essential to the operation of our criminal justice system."
Teague, 489 U.S. at 309, 109 S.Ct. at 1074.
The Appellee cites Greenawalt v. Ricketts, 943 F.2d 1020 (9th
Cir.1991), which holds Minnick to be a new rule of law. We agree.
Also instructive is Arizona v. Roberson, a case in which the Court
subsequently held that an interpretation of Edwards stated a new
rule. 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). In
Roberson, the Supreme Court held that, where a suspect has invoked
his right to counsel and conferred with counsel, Edwards bars
police-initiated interrogation about a separate crime. 486 U.S. at
682-83, 108 S.Ct. at 2098-99. The facts here show that, while
Bassett was incarcerated for a different crime, the police
initiated questioning regarding their murder investigation. After
he had already requested an attorney, and the police began to
leave, Bassett asked the question which led to further
interrogation during which he confessed.
In Butler, the Supreme Court held that Roberson stated a new
rule that was not a logical extension of Edwards. 494 U.S. at 416,
110 S.Ct. at 1218. The Court stated that its holding in Roberson
placed added restrictions on the ability of the police to conduct
investigations. Id. The Court's analysis in Butler applies
equally to the facts of Minnick.
We hold that Minnick enunciates a new rule and is not
retroactive. Bassett's conviction became final before theMinnick
opinion was handed down in 1990. Therefore, it does not affect our
analysis in this case. We find that, under the rule announced in
the Edwards case, Bassett's rights were not violated.
Consequently, we will affirm the district court.
AFFIRMED.