Grant-Chase v. Commissioner, NH

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-1520



                        CINDY GRANT-CHASE,



                           Petitioner,



                                v.



      COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS,



                           Respondent.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF NEW HAMPSHIRE



       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


Before



                     Torruella, Chief Judge,

                 Bownes, Senior Circuit Judge,

                   and Stahl, Circuit Judge.


Albert E. Scherr for petitioner.

     John P. Kacavas, Assistant Attorney General for the State of

New Hampshire, with whom Philip T. McLaughlin, Attorney General

for the State of New Hampshire, was on brief, for respondent.

     Leo T. Sorokin on brief for Federal Defender Office, amicus

curiae.

     David S. Kris on brief for United States Department of

Justice, amicus curiae.


June 5, 1998


STAHL, Circuit Judge.  Petitioner Cindy Grant-Chase

appeals the denial of her application for a writ of habeas corpus

under 28 U.S.C.  2254.  Her appeal presents two questions. 

First, is 1st Cir. R. 22.1(c) (Interim Local Rule) inconsistent

with 28 U.S.C.  2253(c)(1) and Fed. R. App. P. 22(b) (as these

provisions were amended by the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA")) insofar as it requires appellants

seeking collateral relief under 28 U.S.C.  2254 or 2255 who

already have obtained a certificate of appealability ("COA") from

a district judge as to one or more issues also to obtain a COA on

those issues from the court of appeals?  Second, if the merits of

this case are properly before us, did the district court err in

concluding that the challenged state ruling was neither contrary

to, nor involved an unreasonable application of, "clearly

established Federal law, as determined by the Supreme Court of

the United States"?  28 U.S.C.  2254(d)(1).  We conclude that

1st Cir. R. 22.1(c) is inconsistent with 28 U.S.C.  2253(c)(1)

and Fed. R. App. P. 22(b) in requiring a second COA in the

circumstances just described, but reject petitioner's appeal on

the merits.

                                I.

  We take the facts directly from State v. Grant-Chase,

140 N.H. 264 (1995), cert. denied, 517 U.S. 1140 (1996).

    On December 28, 1990, the [petitioner]

  and the victim, George Tegelaar, were in a

  physical struggle that resulted in the

  [petitioner] shooting and wounding the

  victim.  Both the victim and the [petitioner]

  were transported to the hospital for

  treatment of their injuries.  Because the

  [petitioner] was a suspect in the case,

  Officers Langley and Folini went to the

  hospital to question the [petitioner], hoping

  to elicit incriminating statements.  The

  [petitioner] was under constant police watch

  and was not free to leave.  Officer Langley

  was within three to five feet of her while

  she was in the emergency room.  During that

  time the [petitioner] asked Officer Langley

  for her purse and if she could call her

  lawyer.  Once the hospital staff had

  completed their testing, the [petitioner]

  telephoned her lawyer.  During the five- to

  ten-minute telephone call Officer Langley

  remained present but could not overhear the

  substance of the conversation.  After the

  [petitioner] ended her phone call, Officers

  Langley and Folini approached her to initiate

  questioning.  Until this point the police had

  not subjected the [petitioner] to questioning

  or its functional equivalent.  Officer Folini

  asked her if it was all right to ask some

  questions about the incident.  The

  [petitioner] told him that she had talked to

  her attorney, who advised her to cooperate

  with the investigation.  The officers

  explained to the [petitioner] her Mirandarights, see Miranda v. Arizona, 384 U.S. 436

  . . . (1966), which she explicitly waived by

  signing a waiver form, and elicited

  incriminating statements.



Id. at 265-66.

  Prior to trial, petitioner moved to suppress the

statements she had given to Officers Langley and Folini, arguing

that the statements had been obtained in violation of, interalia, her right to have counsel present during custodial

interrogation.  See Miranda, 384 U.S. at 469-73.  The state trial

court rejected her argument, ruling that petitioner did not

"adequately indicate[] to the officers that she sought the

assistance of counsel."  Grant-Chase, 140 N.H. at 267

(summarizing the trial court's ruling).  Thereafter, a jury

convicted petitioner of first degree assault.

  Petitioner appealed her conviction to the New Hampshire

Supreme Court, contending that statements elicited in violation

of, inter alia, the rules of Miranda were used to convict her. 

On December 14, 1994, the New Hampshire Supreme Court affirmed

petitioner's conviction.  Petitioner moved for and was granted

reconsideration of this decision.  But on October 3, 1995, the

court handed down a new opinion that again affirmed petitioner's

conviction.

  Disagreeing with the trial court, the New Hampshire

Supreme Court first ruled that petitioner's request to call her

lawyer was "an invocation of the right to counsel."  Grant-Chase,

140 N.H. at 267.  The court then opined that, "[h]ad the

[petitioner] made her request for counsel after Miranda warnings

had been given or after interrogation had begun, there would have

been an irrebuttable presumption that the [petitioner] asked for

the assistance of counsel for the purpose of having counsel

present during any further questioning . . . ."  Id. (citing

Minnick v. Mississippi, 498 U.S. 146, 153 (1990)).  But because

the request preceded Miranda warnings and the inception of

interrogation, the court declined to indulge such a presumption. 

Id. (citing Minnick, 498 U.S. at 153).  Rather, the court

scrutinized the nature of petitioner's actual invocation, and

concluded that it was "ambiguous as to purpose."  Id. at 268.  A

fair reading of the opinion reveals that the ambiguity detected

was whether petitioner "wanted advice from counsel regarding how

to handle the imminent questioning, or whether the [petitioner]

wanted counsel present for interrogation . . . ."  Id. at 267-68. 

The police officers therefore were within their rights to

"clarify the ambiguity by asking the [petitioner] if . . . she

wishe[d] to go forward with interrogation."  Id. at 268 (citing

Davis v. United States, 512 U.S. 452, 461 (1994)).  And given

petitioner's unambiguous affirmative response to this attempt at

clarification, the court found petitioner's subsequent waiver of

her Miranda rights to be effective.  Id. 

  Subsequently, petitioner applied for a writ of habeas

corpus pursuant to 28 U.S.C.  2254.  The application challenged

as clearly unconstitutional the New Hampshire Supreme Court's

unwillingness to extend to those in custody and facing imminent

interrogation the "irrebuttable presumption" the court appears to

have inferred from Minnick:  that any "request for counsel" made

during custodial interrogation (as opposed to just prior to

interrogation) is for the purpose of invoking the right to

counsel's presence during further questioning.  See Grant-Chase,

140 N.H. at 267.  The district court denied the petition,

reasoning that (1) under 28 U.S.C.  2254(d)(1), it was

prohibited from granting the writ unless the challenged state

ruling was contrary to, or involved an unreasonable application

of, clearly established United States Supreme Court precedent;

and (2) the United States Supreme Court has never explicitly or

implicitly endorsed application of such a presumption to

situations preceding the commencement of custodial interrogation. 

The court did, however, issue petitioner a COA as to this issue

pursuant to 28 U.S.C.  2253(c).  

  In accordance with 1st Cir. R. 22.1(c), an interim

rule adopted in 1996 in the wake of the AEDPA's amendments to 28

U.S.C.  2253(c) and Fed. R. App. P. 22(b), petitioner then asked

this court to grant her a second COA with respect to the Mirandaissue.  Noting that other circuits have determined that litigants

who have obtained a COA on one or more issues from a district

judge may proceed with their appeals of those issues forthwith,

we decided to reexamine 1st Cir. R. 22.1(c) and requested that

petitioner and respondent file supplemental briefs discussing

"whether a petitioner who obtains a [COA] from a district court

judge must also obtain one from the court of appeals before the

appeal may proceed."  We also invited the Federal Defender and

the United States Attorney to file amicus briefs on this issue. 

In their helpful supplemental and amicus briefs, petitioner,

respondent, the Federal Defender, and the United States Attorney

all took the view that 1st Cir. R. 22.1(c) is inconsistent with

the 1996 amendments to 28 U.S.C.  2253(c)(1) and Fed. R. App. P.

22(b) insofar as the Rule requires litigants in possession of a

COA from a district judge to apply for a second certificate from

this court.  As a result, petitioner, respondent, and amici join

in urging us to revise 1st Cir. R. 22.1(c) to dispense with this

requirement. 

                               II.

A.  1st Cir. R. 22.1(c)

     Upon due consideration of the arguments set forth in

the supplemental and amicus briefs, we agree that 1st Cir. R.

22.1(c) should be revised to eliminate the requirement that

litigants in possession of a COA from a district judge as to one

or more issues apply for a second COA with respect to those

issues from the court of appeals.  As an initial matter, we

observe that every court of appeals that has considered the

question has concluded that a district judge may issue a COA. 

See, e.g., Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997)

(listing seven other court of appeals cases, involving appeals of

denials of both 28 U.S.C.  2254 petitions and 28 U.S.C.  2255

motions, to similar effect); see also 7th Cir. R. 22.1(b).  The

basis for this unanimous view is well summarized in Judge Carnes'

comprehensive opinion in Hunter v. United States, 101 F.3d 1565,

1573-84 (11th Cir. 1996) (en banc), cert. denied, 117 S. Ct. 1695

(1997), and, in the absence of any suggestion that 1st Cir. R.

22.1(c) improperly countenances the issuance of a COA by a

district judge, we see no reason to reinvent the wheel.  Suffice

it to say that we endorse the views expressed in Hunter and

explicitly now hold that a district judge has the authority under

the AEDPA to issue a COA under 28 U.S.C.  2253(c) and Fed. R.

App. P. 22(b).

     Once such authority is recognized, the superfluity of

1st Cir. R. 22.1(c)'s "second certificate" requirement becomes

apparent.  Though couched in the negative, 28 U.S.C.  2253(c)

explicitly contemplates the issuance of only one certificate

before an appeal to this court may be taken.  See supra note 2

("Unless a circuit justice or judge issues a [COA], an appeal may

not be taken to the court of appeals from [a final order denying

a 28 U.S.C.  2254 petition or a 28 U.S.C.  2255

motion].")(emphases supplied).  And Fed. R. App. P. 22(b) even

more explicitly recognizes that an appeal may proceed once a

litigant has a COA from a district judge.  See id. ("In a habeas

corpus proceeding in which the detention complained of arises out

of process issued by a State court, an appeal by the applicant

for the writ may not proceed unless a district or a circuit judge

issues a [COA] pursuant to section 2253(c) of title 28, United

States Code.")(emphases supplied).  

     We therefore rule that a COA from a district judge as

to an issue is itself sufficient to permit an appeal of the issue

in 28 U.S.C.  2254 and 2255 proceedings.  In so ruling, we note

that the Eleventh Circuit has explicitly reached the same

conclusion, see Hunter, 101 F.3d at 1576 n.9 (requiring a second

COA from the court of appeals is "inconsistent with the plain

language" of 28 U.S.C.  2253(c) and Fed. R. App. P. 22(b)), and

that all other courts of appeals that have touched upon the

question have at least implicitly followed suit, see, e.g., 7th

Cir. R. 22.1(b) (permitting an appeal to proceed upon issuance of

a COA by a district judge); Teideman, 122 F.3d at 522 ("Normally,

a [COA] granted by a district judge, if regular on its face and

not procedurally defective, would mean that the appeal would

proceed in this Court in the ordinary course."); Houchin v.

Zavaras, 107 F.3d 1465, 1469 (10th Cir. 1997) (similar); Else v.

Johnson, 104 F.3d 82, 83 (5th Cir. 1997) (similar).  Accordingly,

pending revision of 1st Cir. R. 22.1(c), litigants in possession

of a COA as to an issue from a district judge need not apply to

this court for issuance of a second certificate on that issue;

they need only present this court with a copy of the district

court order granting a certificate of appealability.  See supranote 1.  Upon such presentation, the appeal shall proceed in this

court in the ordinary course.

B.  The Merits

     Turning to the merits of petitioner's appeal, we detect

no error in the district court's denial of her petition.  As

previously noted, the New Hampshire Supreme Court determined that

petitioner's pre-interrogation request to call counsel was

"ambiguous as to purpose"   i.e., it was ambiguous as to "whether

the [petitioner] wanted advice from counsel regarding how to

handle the imminent questioning, or whether the [petitioner]

wanted counsel present for interrogation . . . ."  Grant-Chase,

140 N.H. at 267-68.  The court also determined that when Officer

Folini subsequently "asked [petitioner] if it was all right to

ask some questions about the incident," id. at 266, he was

seeking "to clarify the purpose of her call," id. at 268.  Given

these determinations (which petitioner does not challenge), we

have some difficulty understanding why the New Hampshire Supreme

Court overruled the state trial court's ruling that petitioner

did not adequately indicate to the officers that she sought "the

assistance of counsel."  Id. at 267.  After all, the trial

court's ruling must, in context, be understood as a determination

that petitioner had not actually invoked her right to the

assistance of an attorney in dealing with the forthcominginterrogation.  And the New Hampshire Supreme Court's "ambiguous

as to purpose" ruling would seem to evince agreement, rather than

disagreement, with this determination.

     In any event, the United States Supreme Court has quite

clearly held that the rule of Miranda "applies only when the

suspect has expressed his wish for the particular type of

lawyerly assistance that is the subject of Miranda."  McNeil v.

Wisconsin, 501 U.S. 171, 178 (1991) (citation and internal

quotation marks omitted) (emphasis in original); see also id.(defining the type of lawyerly assistance that is the subject of

Miranda as "the right to the assistance of an attorney in dealingwith a custodial interrogation by the police") (emphasis in

original).  So too has the Court held that the wish for this type

of assistance must be "unambiguously" expressed, meaning "a

statement either is . . . an assertion of the right to counsel or

it is not."  Davis, 512 U.S. 459 (citation and internal quotation

marks omitted).  Thus, when a suspect has made a statement that

might or might not amount to an expression of a wish for the

assistance of counsel during interrogation, the police are within

their rights not only to clarify whether the suspect wants an

attorney present, see id. at 461 (observing that such a

clarification "will often be good police practice"), but also

simply to continue the interrogation without asking for

clarification, see id. 461-62.  

     Here, the New Hampshire Supreme Court determined, and

the record confirms, that petitioner's intentions were at first

unclear; that Officer Folini asked petitioner to clarify her

intentions; that petitioner unambiguously informed the officers

that she intended to cooperate with the investigation; that the

officers read petitioner her Miranda rights; and that petitioner

waived those rights.  In our view, this scenario falls squarely

within the rule of Davis.  We therefore see no basis for

concluding that the admission into evidence of petitioner's

subsequent statements was "contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States."  28 U.S.C.

 2254(d)(1); see O'Brien v. DuBois, No. 97-1979, slip op. at 10-

23 (1st Cir. May 26, 1998) (interpreting  2254(d)(1)).           

                               III.

     For the reasons stated, we hold that if a litigant has

obtained from a district judge a COA as to one or more issues

addressed in the denial of a 28 U.S.C.  2254 petition or a 28

U.S.C.  2255 motion, the litigant need not apply for a second

COA from this court as to these issues.  To the extent that 1st

Cir. R. 22.1(c) imposes such a "second certificate" requirement,

it should be disregarded.  As to the merits of this appeal, we

affirm the district court's denial of petitioner Cindy Grant-

Chase's application for a writ of habeas corpus under 28 U.S.C. 

2254.     BOWNES, Senior Circuit Judge (concurring).  Although I do

not quarrel with the majority's intricate analysis of Miranda, as

interpreted by the Supreme Court, I would decide the case on a

simpler basis.

     Plaintiff asked and received permission to call her

attorney after she arrived at the hospital.  She did so, and he

told her to cooperate with the police.  After she finished talking

to her lawyer, the police asked if they could talk to her.  She

replied that she would do so, stating that her lawyer had told her

to cooperate with the police.  Before interrogating her, the police

advised her of her rights under Miranda.  She signed the Mirandawaiver.  I see no Miranda problem.