*1 motion No such not here. made. Birdseye corporations had contempt coming forward burden they
proceeding with comply. E.g., United efforts
reasonable (8th Rue, 1494-95 819 F.2d v.
States Hayes, 722
Cir.1987); v. States United Cir.1984). (11th They intro record Thus on this such efforts.
duced no contempt they were mandatory.
underlying order was denying the Government’s judgment corporations in Birdseye’s to hold
motion reversed, contempt therefore
civil will dis- the case will be remanded entry appropriate of an
trict court for sanctioning order.1 contempt
civil BUTLER, Petitioner-Appellant,
Horace
v. AIKEN, Warden, Correc Central
James Medlock, Institute, Attor Travis
tional Carolina, General, ney of South State
Respondents-Appellees.
No. 87-4004. Appeals,
United States Court
Fourth Circuit. 2, 1988.
Dec. ORDER HALL, Judge.
K.K. reconsideration Before the Court for rehearing with Horace Butler’s district court’s regard appeal of the to his petition for a writ denying his order 28 U.S.C. corpus pursuant inmate, Butler, a South Carolina § court state was convicted After ex- Lane. 1980 murder Pamela remedies, petitioned hausting state asserting a broad relief for federal habeas subsequent proceedings, civil Birdseye pass upon of the conten- do not merits 1. We criminal, illegal, wiretap or illegality be raised question can whether
25
objections to
If
range of constitutional
Roberson.
this case were before us
proceedings. Finding
appeal,
state criminal
no on direct
we would in all likelihood
claims,
any
compelled
merit in
of his
the district court
to reverse the conviction and
follow,
denied relief and we affirmed. Butler v.
remand for a new trial.
It does not
Aiken,
(4th Cir.1988).
however,
peti-
that Butler is entitled to habeas
rehearing
suggestion
re-
tion for
of
relief based
a rule of law that was not
hearing
subsequently
denied in effect at the time
of his arrest and trial.
15,
on June
1988.
The retroactive effect of decisions
we
our
bulk
such as Roberson in
proceedings
collateral
Butler’s contentions for the reasons sound
is determined
accordance with three
ly expressed
by
below
the district court.
(1)
purpose
factors:
of the new rule of
addressed,
detail, only
We
Butler’s claim law; (2)
the extent of reliance
law en
resulting
that his confession
from interro
standard;
forcement authorities on the old
charges
following
on murder
his
(3)
application
effect of retroactive
appearance
arrest and
with counsel on an
justice.
the administration of
Allen
“bright
unrelated offense violated the
line”
255,
v. Hardy, 478 U.S.
against reinterrogation
established in
(1986). Although
Edwards v.
101 are
it is the first factor that is
(1981).
was cast into immediate and most serious doubt priate. decision in Court’s Arizo — —, na v. Applying this test to the instant The Rober case, fully may we are satisfied that Butler expressly son Court held that the Edwards not claim retroactive benefit from Ro interrogation rule does bar initiated berson. The Edwards-Roberson limita following suspect’s request for counsel police interrogation tions on have separate investigation. the context of a tangential relationship most to truth find — U.S. —, are, rather, ing. They part pro light phylactic protection we determined that accorded the fifth amendment to counsel as a means of pe- establishing “guidelines Accordingly, reconsidered. we directed to the law enforce — respondents supplemen- profession.” titioner and to file ment U.S. at —, tal briefs on this issue. at 2097. The We have now appellant, unquestionably contrary supplemental received and examined that while is, briefing. present “guidelines,” conducted therefore, ripe disposition. law in strict accordance with established We, therefore, conclude that Butler matter, respon- reject As an initial may challenge presumptively his con valid distinguish dents’ effort to Roberson factu- only by demonstrating that there purposes ally. We assume for of decision of his constitutional was an actual violation appearance of counsel with Butler issue, rights dispositive that 1980. On hearing charge at a on the assault bond support the record discloses no for Butler’s conclusively which he was first arrested claim for habeas relief. demonstrated invocation of Butler’s fifth rights. undisputed local authorities amendment inter- It murder, warnings before rogation concerning provided the Lane oc- full Miranda curring during custody, questioning Butler on the Lane murder. continuous undisputed Butler twice evi- contrary to the as modified is further Edwards rule gated an unrelated offense. The knowing consent to denced his him government obtained from self-incrimi- presence of counsel without the nating about the unrelated of- statements Every court executing signed waivers. no that Butler fense. There is matter has con- considered this that has interrogation that resulted in initiated the rights was un- that the waiver cluded is, self-incriminating statements. He was voluntary. his utterly There coerced and *3 convicted the use of those statements. therefore, find a technical no reason to newly announced law violation based majority expresses the view that appellant reveals that the record when ap- Butler’s case were before it on direct protec- any fifth amendment freely waived “in com- peal, it would all likelihood” be in tions pelled to the conviction and remand reverse But, reasons, majority main- for a new trial. the we conclude foregoing For the tains, Butler’s case is before it on the because that our initial affirmance corpus, he is denial of a appro- in matter was court’s decision this relief, entitled to as the rule of law on priate substance. of his un- which he relies to bar the use on the requested poll In of the Court a confession not in effect at counselled was banc, rehearing en Chief suggestion for Specifical- the time of his arrest and trial. WINTER, Judges PHIL- Judge and Circuit ly, majority’s is that an the view SPROUSE, MURNAGHAN, LIPS, and ER- Butler’s did not tion such as violate banc; to rehear the case VIN voted Arizona, 451 wards v. U.S. RUSSELL, WIDENER, Judges (1981),until Edwards WILKINSON, HALL, CHAPMAN, “modified” Arizona v. was rehearing en banc. WILKINS voted —, 108 the panel As the has considered not de- Because Roberson was opinion that it and is of the after Butler’s conviction cided until became denied, majority of and as a the final, Butler is entitled to invoke deny rehear- judges voted to active circuit majority, only if in the view of the Rober- banc, and OR- ing en it is ADJUDGED son is held to be retroactive. DERED that the that Roberson does not meet the concludes rehearing en are de- suggestion for banc application. test for retroactive nied. making Butler’s entitlement to relief concurrences Cir- ENTERED with the retroactivity of depend upon the CHAPMAN. cuit RUSSELL and view, incorrectly majority, my con- and Roberson. strues both Edwards WINTER, L. Chief HARRISON Judge, dissenting: II. from the denial of respectfully I dissent Imprimis, I think that Butler’s confession
rehearing in
because
believe
constitutionally
under Ed-
was
inadmissible
in viola-
conviction was obtained
standing alone.
stated un-
wards
life
applicable
tion of
constitutional
“ex-
conditionally
suspect
that a
doubt,
in this case.
I have no
is at stake
police
pressed his desire to deal with
therefore,
validity of Butler’s con-
counsel,
subject
further
through
is not
“exceptional
question of
presents
a
authorities until coun-
35(a).
F.R.App.P.
importance.”
him,
made available to
unless
sel has been
further com-
the accused himself initiates
I.
484-85, 101
munication.”
that,
states,
1885. It is true
correctly
As the
subject
which the accused
requested
questioned about
counsel when
crime for
interrogated was the
wrongly
the authorities were
the offense for which
holding him.
thereafter,
were
the authorities
Shortly
the which
holding slightest suggestion
is not the
counsel,
But there
Butler was interro-
absence of that
change
very opening
its
the rules.
the Court’s
subject
paragraph
limited
the Court’s
Justice
Indeed,
expressly Stevens, writing
the Court in Edwards
the majority,
described
previous characterization of
reconfirmed its
the case as one in which “Arizona asks us
Arizona, 384 U.S.
the rule in Miranda v.
exception
to craft an
[to
rule]
1602, 16
as
L.Ed.2d
for cases in
which
want to inter
command
an accused’s
rogate
about an offense that is
counsel,
interrogation cease.” Ed
“all
unrelated to the
of their
in
initial
at 1885
451 U.S. at
terrogation.”
C.,
Fare v. Michael
2096. This the Court declined to do.
In
L.Ed.2d
stead,
expressed agreement
it
with an earli
(1979) (emphasis
er
Arizona decision
that Edwards
equally applicable
whether the interro
Butler’s tri-
Edwards was decided before
giving
was about either the offense
decided,
when
Edwards did
al. And even
*4
rise
to
arrest or an unrelated offense.
purport
to create new law. Edwards
then documented how the
guide-
simply
a reconfirmation of the
departed
Court had never
from its
person
that if a
line articulated Miranda
Miranda,
Edwards,
as reconfirmed in
interrogation “states
that he
held for
why
and set forth the reasons
it would not
interrogation must
attorney,
an
wants
do so in the case before it.
attorney
present.”
Mi-
cease until an
randa,
at
sum,
says
Roberson
that the law is
applica-
Nothing in Miranda indicated
been,
Miranda,
and has
since
that a sus
vary
to
with the
tion of this
pect
expressed
his desire to deal
subject of the
police only through
with the
counsel is not
Mi-
the Court reviewed
to further
about ei
recapitulating
cases
suspected
having
randa
ther the crime he is
‘rigid rule that an accused’s
“Miranda’s
committed or
other crime until coun
attorney
per
for an
se an invoca-
available,
sel has
unless the
been
rights, requir-
Fifth Amendment
tion of his
initiates further communication
”
ing
interrogation cease.’
that all
police.* There is thus no retroac-
with the
at
We reconfirm that he is entitled to habeas substance, it is in- emphasize that them PHILLIPS, MURNA- progeny consistent with Miranda and its GHAN, authorize SPROUSE ERVIN instance, authorities, at their they join in say me to this dissent. custody if he reinterrogate an accused clearly has asserted his to counsel. Thus, Court did not re-
Id.
gard its as other than a “reconfir-
mation” of Miranda. alter these rules of
Roberson did not attempt simply rejected Arizona’s * investigations." reading My what Justice Kenne- is reinforced Justice, dy, joined by the Chief wrote case who was While the in the instant majori- Roberson. He in dissent in obviously prefers of Rober this characterization ty’s characterization of the case as one in which son, as an inferior I remind the exception” to asked to "craft an the Court was appellate are bound to follow the instead that Roberson Edwards. He asserted agree majority, whether we Court first case in which the Court was "asked was the disagree. separate independent apply Edwards to