dissenting:
I respectfully dissent from the denial of rehearing in banc because I believe that Butler’s conviction was obtained in violation of applicable constitutional law. A life is at stake in this case. I have no doubt, therefore, that the validity of Butler’s conviction presents a question of “exceptional importance.” F.R.App.P. 35(a).
I.
As the majority correctly states, Butler requested counsel when questioned about the offense for which the authorities were holding him. Shortly thereafter, and in the absence of that counsel, Butler was interrogated about an unrelated offense. The government obtained from him self-incriminating statements about the unrelated offense. There is no evidence that Butler initiated the interrogation that resulted in his self-incriminating statements. He was convicted by the use of those statements.
The majority expresses the view that if Butler’s case were before it on direct appeal, it would “in all likelihood” be compelled to reverse the conviction and remand for a new trial. But, the majority maintains, because Butler’s case is before it on denial of a petition for habeas corpus, he is not entitled to relief, as the rule of law on which he relies to bar the use of his un-counselled confession was not in effect at the time of his arrest and trial. Specifically, the majority’s view is that an interrogation such as Butler’s did not violate Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), until Edwards was “modified” in Arizona v. Roberson, 486 U.S. —, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). Because Roberson was not decided until after Butler’s conviction became final, Butler is entitled to invoke Roberson, in the view of the majority, only if Roberson is held to be retroactive. The majority concludes that Roberson does not meet the test for retroactive application.
In making Butler’s entitlement to relief depend upon the retroactivity of Roberson, the majority, in my view, incorrectly construes both Edwards and Roberson.
II.
Imprimis, I think that Butler’s confession was constitutionally inadmissible under Edwards standing alone. Edwards stated unconditionally that a suspect who has “expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication.” 451 U.S. at 484-85, 101 S.Ct. at 1885. It is true that, in Edwards, the subject about which the accused was wrongly interrogated was the crime for which the authorities were holding him. But there is not the slightest suggestion in *27the Court’s opinion that its holding was limited by the subject of the interrogation. Indeed, the Court in Edwards expressly reconfirmed its previous characterization of the rule in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as a command that, upon an accused’s request for counsel, “all interrogation cease.” Edwards, 451 U.S. at 485, 101 S.Ct. at 1885 (quoting Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979) (emphasis added)).
Edwards was decided before Butler’s trial. And even when decided, Edwards did not purport to create new law. Edwards was simply a reconfirmation of the guideline articulated in Miranda that if a person held for interrogation “states that he wants an attorney, the interrogation must cease until an attorney is present.” Miranda, 384 U.S. at 474, 86 S.Ct. at 1627. Nothing in Miranda indicated that application of this rule was to vary with the subject of the interrogation.
In Edwards, the Court reviewed Miranda and subsequent cases recapitulating “Miranda’s ‘rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.’ ” Edwards, 451 U.S. at 485, 101 S.Ct. at 1885 (quoting Fare, 442 U.S. at 719, 99 S.Ct. at 2568 (emphasis added)). Upon so doing, the Court concluded:
We reconfirm these views and, to lend them substance, emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.
Id. Thus, the Edwards Court did not regard its holding as other than a “reconfirmation” of Miranda.
Roberson did not alter these rules of law. It simply rejected Arizona’s attempt to change the rules. In the very opening paragraph of the Court’s opinion, Justice Stevens, writing for the majority, described the case as one in which “Arizona asks us to craft an exception [to the Edwards rule] for cases in which the police want to interrogate a suspect about an offense that is unrelated to the subject of their initial interrogation.” 486 U.S. at -, 108 S.Ct. at 2096. This the Court declined to do. Instead, it expressed agreement with an earlier Arizona decision holding that Edwards was equally applicable whether the interrogation was about either the offense giving rise to the arrest or an unrelated offense. The opinion then documented how the Court had never departed from its holding in Miranda, as reconfirmed in Edwards, and set forth the reasons why it would not do so in the case before it.
In sum, Roberson says that the law is and has been, since Miranda, that a suspect who has expressed his desire to deal with the police only through counsel is not subject to further interrogation about either the crime he is suspected of having committed or any other crime until counsel has been made available, unless the suspect initiates further communication with the police.* There is thus no retroac-tivity issue presented in the instant case. Butler merely seeks to invoke the law in effect when he was tried and convicted. I think that he has the right to do so, and that he is entitled to habeas relief.
Circuit Judges PHILLIPS, MURNA-GHAN, SPROUSE and ERVIN authorize me to say that they join in this dissent.My reading is reinforced by what Justice Kennedy, who was joined by the Chief Justice, wrote in dissent in Roberson. He rejected the majority’s characterization of the case as one in which the Court was asked to "craft an exception” to Edwards. He asserted instead that Roberson was the first case in which the Court was "asked to apply Edwards to separate and independent investigations." 486 U.S. at -, 108 S.Ct. at 2102. While the majority in the instant case obviously prefers this characterization of Roberson, I remind the majority that, as an inferior appellate court, we are bound to follow the Supreme Court majority, whether we agree or disagree.