Appeal from the United States District Court for the Southern District of Illinois, Peoria Division. No. P 76-C-104 - Robert D. Morgan, Judge.
Before WOOD, Circuit Judge, SWYGERT and PELL, Senior Circuit Judges. OPINION
Pursuant to an order of the Supreme Court,*fn1 this case is before us for the fourth time. The history of this protracted litigation dates to 1978, when this court reversed the district court's denial of petitioner-appellant White's application for habeas corpus relief and remanded the case for an evidentiary hearing on White's fifth amendment claim that his uncounseled confession, obtained during custodial interrogation after he allegedly requested that counsel be present, was inadmissible at trial under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).*fn2 On remand, the district court again denied habeas corpus relief, finding that White had not requested that counsel be present during the custodial interrogation and concluding that White's confession was admissible under Miranda. The district court's judgment was affirmed on appeal.*fn3 Although we rejected the district court's determination that White had not invoked his right to have counsel present, we held that White subsequently validly waived this right. The Supreme Court vacated this judgment and remanded the case, directing us to reconsider our decision in White II in light of its decision in Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981).*fn4 We subsequently issued our third opinion in this case, in which we reversed the district court's judgment denying habeas corpus relief and remanded with instructions to issue the writ and order White's release unless he was retried within 90 days of the issuance of this court's mandate.*fn5 We concluded that Edwards, in which the Supreme Court held that a suspect who has invoked his right to have counsel present during a custodial interrogation will be deemed to have waived that right only when he initiates subsequent communication with law enforcement officials, completely undermined our holding in White II. The Supreme Court again vacated our judgment and remanded the case for reconsideration in light of its decision in Solem v. Stumes, 465 U.S. 638, 104 S. Ct. 1338, 79 L. Ed. 2d 579 (1984), a task to which we now turn.
The sole issue before the Court in Solem was whether its decision in Edwards should be applied retroactively. Employing the analysis set forth in Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965), Tehan v. Shott, 382 U.S. 406, 15 L. Ed. 2d 453, 86 S. Ct. 459 (1966), and Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966),*fn6 the Court determined the Edwards decision should not be so applied. The Court concluded that the Edwards decision did not announce a new constitutional principle designed to enhance the accuracy of the truthfinding function, a factor that would militate in favor of its retroactive application, but a "prophylactic rule designed to implement pre-existing rights." Solem, 104 S. Ct. at 1343. That a suspect has requested a lawyer does not mean that his subsequent statements are likely to be inaccurate. "[W]here renewed interrogation raises significant doubt as to the voluntariness and reliability of the statement and, therefore, the accuracy of the outcome at trial, it is likely that suppression could be achieved without reliance on the prophylactic rule adopted in Edwards." Id. at 1342. The Court further found that, because Edwards was not "distinctly" foreshadowed by earlier case law, law enforcement authorities could not be expected to have anticipated the decision. Edwards, the Court determined, "was not a necessary consequence of Miranda," Solem, 104 S. Ct. at 1344. Prior to Edwards, it justifiably could have been held that a waiver of the right to counsel following its invocation could be deemed voluntary even though law enforcement authorities had initiated the communication. Id., citing, inter alia, White v. Finkbeiner, 611 F.2d 186, 191 (7th Cir. 1979), vacated, 451 U.S. 1013, 101 S. Ct. 3000, 69 L. Ed. 2d 385 (1981). Lastly, the Court found that retroactive application of Edwards would have a disruptive effect on the administration of justice. Edwards might affect the admissibility of statements made to the police in a large number of cases. The assessment of the substantiality of these Edwards claims and possible retrials "would be hampered by problems of lost evidence, faulty memory, and missing witnesses." Solem, 104 S. Ct. at 1345, citing Jenkins v. Delaware, 395 U.S. 213, 220, 23 L. Ed. 2d 253, 89 S. Ct. 1677 (1969).
As a threshold matter, we note that White suggests in a conclusory fashion that respondents-appellees have "waived any argument concerning a limitation on the applicability of Edwards " because they failed to argue that Edwards should not be applied retroactively either in their Rule 19 statement filed with this court following the Supreme Court's remand of White II for further consideration in light of Edwards or in their petition for a writ of certiorari filed with the Supreme Court following our decision in White III holding that White was entitled to habeas corpus relief under Edwards.
White neither cites cases nor develops even a rudimentary argument in support of this novel waiver theory. We therefore would be entitled to decline to consider the issue. Nevertheless, we address it and find it to be without merit.
This court has not hesitated to hold the government to a strict waiver standard in cases in which it attempts to raise on appeal factual issues that it failed to present to the district court. In a case recently before us on remand from the Supreme Court for reconsideration in light of one of its decisions, we rejected the government's attempt to argue at that late date that law enforcement officers had probable cause for the detention of the defendant's luggage; we held that the government, which had argued in the trial court for the admission of the cocaine found in the luggage solely on the ground that the officers had reasonable suspicion to detain the luggage, had waived its right to contend on remand that probable cause in fact existed. Moya v. United States, 745 F.2d 1044 (7th Cir. 1984).
The circumstances presented here do not even arguably fall within the parameters of this waiver doctrine. Respondents-appellees are not attempting to present for the first time on remand a factual issue, relevant to the merits of White's constitutional claim, which could have been raised in the district court. Indeed, they are not even attempting to argue for the first time on remand that Edwards should be given prospective application only. Rather, the Supreme Court has remanded this case for reconsideration in light of Solem, in which it decided that Edwards is not to be applied retroactively. The Court has exercised its jurisdiction and remanded this case for reconsideration in light of Solem despite the fact that respondents-appellees did not present the nonretroactivity question in their petition for a writ of certiorari. In effect, the Court sua sponte has ordered us to reconsider White III in light of Solem. To find a waiver in this case would be to nullify the Supreme Court's exercise of its jurisdiction and to circumvent its remand order. We appropriately decline to do so.
We now address White's argument concerning the scope of Solem's nonretroactivity holding. The Solem Court stated that "at a minimum, nonretroactivity means that a decision is not to be applied in collateral review of final convictions." Solem, 104 S. Ct. at 1345. White's petition for a writ of habeas corpus is, of course, a collateral attack on his final conviction. The literal language of Solem mandates the conclusion that Edwards is not to be applied in this case.
Nevertheless, White asks this court to carve out an exception. Specifically, White contends that he presented an Edwards -type claim to the United States Supreme Court in his petition seeking a writ of certiorari to the Supreme Court of Illinois, the final step in the process of direct appellate review of his criminal conviction.*fn7 Therefore, he is not seeking relief on this claim for the time on collateral review, the situation he contends the above-quoted language in Solem was intended to avoid. In essence, White would have this court apply Edwards on collateral review of final convictions in cases in ...