Jimmy Neuschafer v. Brian McKay Attorney General of the State of Nevada, Respondent

KENNEDY, Circuit Judge:

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

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

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

The record is unclear whether Neuschafer initiated the communication which led to the ... interview. Evidence suggests *841that Neuschafer requested to speak to authorities regarding the Johnson murder in a note he wrote and gave to prison employees____

705 P.2d at 612.

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

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

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

We decline to hold that in every case a state trial record will never support a factual determination if a state appellate decision is inconsistent with it; but in the circumstances of this case, we believe an evi-dentiary hearing in the district court is warranted to resolve the issue whether Neuschafer initiated the conversation that led to his confession. See Townsend v. Sain, 372 U.S. 293, 319, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963) (stating that state record must reveal “full and fair ... evi-dentiary hearing resulting in reliable findings ”) (emphasis added); Richmond v. Ricketts, 774 F.2d 957, 961 (9th Cir.1985) (noting that Townsend controls issue of when evidentiary hearing should be held). Neuschafer alleged serious error, of constitutional dimension. The state did not produce a note sent by Neuschafer in which, the state claims, Neuschafer requested the second interview with the officers, even though these events were after the decision in Edwards had put state officials on notice that the identity of the party initiating the interview was of paramount importance. A loss of the note would not be fatal to the state’s position, but the testimony about its contents is critical.1

The district court should hold an eviden-tiary hearing to determine whether Neus-chafer initiated the interview and whether *842the standards of Edwards were met. The hearing should be completed within sixty days, if consistent with the other calendar responsibilities of the district court. The transcript of proceedings and the trial court’s findings and ruling shall be forwarded to this court and become part of the record on appeal. A party seeking to challenge the district court’s findings may request this panel for an order permitting supplemental briefs. Subject to the limited remand here ordered, this panel retains jurisdiction of the case.

REMANDED.

. We are reluctant to conclude that any possible error was harmless because the state trial record has not been made part of the record on appeal, and we have not reviewed it in all of its detail.