Before BROWNING, SNEED, and HUG,
Circuit Judges.
SNEED, Circuit Judge:
This is an appeal from the denial
by the district court of a petition for a writ of
habeas corpus. We reverse and remand for further
proceedings with respect to the petition.
I.
FACTS AND PROCEEDINGS BELOW
On July 30, 1978, Randy
Greenawalt and Gary Tison, inmates at Arizona State
Prison in Florence, Arizona, received guns from two
of Tison's sons, Ricky and Raymond. The two
prisoners escaped to a nearby green Ford sedan
driven by Gary Tison's son, Donald. Soon after the
escape, the five men (termed the "Tison gang" by the
press) transferred to a white Lincoln Continental
and drove away.
On August 6, 1978, state
employees discovered the bodies of John and Donnelda
Lyons and their son Christopher near the abandoned
Lincoln Continental, in the area around Quartzsite,
in Yuma County, Arizona. On August 11, 1978,
searchers at the site found the body of Theresa
Tyson, the Lyonses' niece. All four victims had been
shot to death.
Evidence implicating the escapees
included (1) Greenawalt's palm print on the outside
of the car, (2) Raymond Tison's fingerprint inside
the car, and (3) gun shells that matched the guns
recovered from the escapees when they were captured.
Forensic experts determined that the victims died at
some time between July 31 and August 2, 1978.
Greenawalt and the Tisons
attempted to drive a stolen van through a pair of
police roadblocks on August 11, 1978. When the van
went off the road during a high-speed chase, the
police captured Greenawalt, Ricky Tison, and Raymond
Tison. Donald Tison died during the chase. Gary
Tison, who escaped capture at the roadblock site,
died of exposure in the surrounding desert.
Around 3:00 A.M. on August 11,
officers gave Greenawalt and the two surviving
Tisons a pat-down search, handcuffed them, and
placed them in a pickup truck. About half an hour
later, the police moved the pickup to a different
location, strip-searched the men (retaining their
clothes as evidence), and left them, naked, in the
truck. At some point later that morning, the men
received wool blankets to wear. At approximately
5:00 A.M., the escapees were taken to separate
vehicles.
Warden Caldwell read Greenawalt
the Miranda warning and then asked him if he had any
statements to make. Greenawalt refused to make any
statements and requested an attorney. Cardwell did
not ask Greenawalt any further questions at that
time. Later in the day, two Pinal County Detectives,
Tom Solis and Ed Harwell, arrived to question
Greenawalt. Cardwell may or may not have told one of
the two detectives about Greenawalt's request for a
lawyer.
In any event, Harwell also read
the prisoner the Miranda warning and asked him if he
needed medical attention. When Harwell began to ask
Greenawalt about Theresa Tyson, Greenawalt again
requested a lawyer. Detective Solis, a short while
later, asked Greenawalt if he already had a lawyer
and if he would like to talk. Greenawalt responded
that, although he did not want to talk at that time,
he would talk to Solis later. The conversation with
Solis ended around 7:00 A.M.
Sometime between 7:30 and 8:00
A.M., Corrections Director Ellis McDougall, who
evidently had not heard about Greenawalt's request
for an attorney but knew that he had been notified
of his Miranda rights, met with the prisoner.
McDougall said that he didn't want to talk about any
crimes but was wondering about the location of
Theresa Tyson. Greenawalt answered some questions
but then requested a lawyer.
At approximately 8:30 A.M.,
McDougall asked Assistant Warden Dwight Burd to talk
to the prisoner; McDougall probably did not pass
along Greenawalt's request for an attorney. Burd,
who had known Greenawalt for three years, testified
that he did not know that Greenawalt had already
refused to talk to the police. He, too, questioned
Greenawalt for a while. The questioning stopped--at
about the point when Burd asked Greenawalt who had
owned the stolen van--when Greenawalt repeated his
request for a lawyer.
Sometime between 8:30 and 9:24
A.M., McDougall approached Greenawalt again, and
Greenawalt refused to talk to him. At 9:24 A.M.,
Department of Public Safety Agent David Sanchez gave
the prisoner the Miranda warning again. Greenawalt
refused to answer questions until he was given an
attorney. He was then taken to the Pinal County jail
around 11:30 A.M. and was examined by a doctor
between 12:30 and 1:00 P.M. Earlier, at around 11:00
A.M., attorney Robert Brown had learned that he
would be Greenawalt's counsel. The jail personnel
did not permit Brown to see Greenawalt until 1:00
P.M.; at that time, the two men spoke for 10 or 15
minutes through a slit in a metal door, with a
prison guard standing next to Greenawalt.
At 2:00 P.M., Tom Brawley, a
detective who had known Greenawalt since 1974,
questioned him. Brawley testified that he did not
know about any previous attempts at interrogation.
When Brawley entered the cell, Greenawalt was
sleeping. Brawley woke him, brought him coffee and a
cigarette, and chatted with him for a while. Then
Brawley told him that he had come to ask questions
and he read Greenawalt his rights from a waiver.
Greenawalt refused to sign the waiver. It was at
this point in the interrogation process that he made
his most incriminating statements. His refusal to
sign the waiver was coupled with the statement that
he "wanted to clear up the news media stories of
Teresa [sic] Tyson." When Brawley asked him to
clarify that remark, he replied, "We didn't kidnap
the girl, nor was she sexually molested." Brawley
responded by asking where Theresa Tyson was located,
since she had not been found with the other bodies.
Greenawalt responded, "Well, we left her there.... [J]ust
look around because she has to be there." Brawley
asked whether she had been shot. Greenawalt answered,
"You goddamn right she was shot." 6 R.T. at 898-99.
Greenawalt was tried in Arizona
for the four Yuma County killings. Ricky and Raymond
Tison agreed to testify against him in exchange for
the state's agreement not to seek the death penalty
for them. The Yuma County Attorney mentioned their
proposed testimony in his opening argument. When the
Tison brothers reneged on their agreement, the trial
judge declared a mistrial.
At the second trial, the
prosecution argued that Greenawalt had committed
first degree murder by violating Ariz.Rev.Stat.Ann.
Sec. 13-452, which dealt with killings "committed in
avoiding or preventing lawful arrest or effecting an
escape from legal custody, or in perpetration of ...
robbery ... [or] kidnapping." The jury convicted
Greenawalt on four counts of first degree murder,
kidnapping, robbery, and theft. At a separate
capital sentencing hearing, the trial judge
sentenced him to death based on the murder
conviction.
The Arizona Supreme Court
affirmed the conviction and sentence in State v.
Greenawalt, 128 Ariz. 150, 624 P.2d 828 (en banc),
later proceeding, 128 Ariz. 388, 626 P.2d 118 (1981)
(en banc), and the United States Supreme Court
denied certiorari on October 5, 1981, 454 U.S. 882,
102 S.Ct. 364, 70 L.Ed.2d 191. Greenawalt then filed
a petition for post-conviction relief in state court.
That petition was denied, 128 Ariz. 388, 626 P.2d
118 (1981) (en banc), as was his December 21, 1981
petition for a writ of habeas corpus filed in the
district court in Arizona. The district court denied
the petition on the ground that he had not exhausted
his state court remedies. Greenawalt later filed an
amended petition for a writ of habeas corpus on May
31, 1984.
The district court issued a
memorandum opinion and order on August 6, 1984,
denying the petition and, on December 13, 1984,
issued an amended opinion denying the petition.
Greenawalt filed his notice of appeal on time.
II.
DISCUSSION
Greenawalt contends his case is
governed by Shea, v. Louisiana, --- U.S. ----, 105
S.Ct. 1065, 84 L.Ed.2d 1065 (1985), not Stumes. He
relies on language in Shea at ---, 105 S.Ct. at 1068
n. 3, 84 L.Ed.2d 1065 (1985). That note reads in
part: "Had petitioner's [Shea's] case been pending
here on certiorari when Edwards was announced, it
surely would have been remanded, as were other such
cases, for reconsideration in the light of Edwards."
Edwards was decided on May 18, 1981, and Greenawalt
filed his petition for certiorari on May 11, 1981.
Certiorari, as already mentioned, was denied on
October 5, 1981. The Court, as Shea's footnote 3
indicated, did remand other cases in light of
Edwards. See Blakney v. Montana,
451 U.S. 1013 , 101 S.Ct. 2999, 69 L.Ed.2d 384
(1981); White v. Finkbeiner,
451 U.S. 1013 , 101 S.Ct. 3000, 69 L.Ed.2d 385
(1981); Leuschner v. Maryland,
451 U.S. 1014 , 101 S.Ct. 3001, 69 L.Ed.2d 385
(1981); Monroe v. Idaho,
451 U.S. 1014 , 101 S.Ct. 3001, 69 L.Ed.2d 385
(1981); Wantland v. Maryland,
451 U.S. 1014 , 101 S.Ct. 3001, 69 L.Ed.2d 386
(1981); James v. Illinois,
451 U.S. 1014 , 101 S.Ct. 3001, 69 L.Ed.2d 386
(1981).
The footnote 3 of Shea and the
denial of Greenawalt's petition for certiorari
present us with a dilemma. Either the Supreme
Court's footnote 3 should be completely ignored and
this case analyzed uninfluenced by that footnote, or
the Supreme Court did not believe that the
questioning of Greenawalt violated the rule of
Edwards, or the denial of certiorari, despite the
language of footnote 3, indicates nothing with
respect to whether Greenawalt's questioning violated
Edwards. This being a capital case, we must accept
and be governed by the third alternative.
REVERSED AND REMANDED.