Randy Greenwalt


Randy Greenwalt

Classification: Serial killer
Characteristics: Robberies
Number of victims: 9
Date of murders: 1974 - 1978
Date of arrest: August 11, 1978
Date of birth: February 24, 1949
Victims profile: 5 men, 3 women and 1 child (22-month-old boy)
Method of murder: Shooting
Location: Arizona/Colorado, USA
Status: Executed by lethal injection in Arizona on January 23, 1997

Randy Greenawalt was sentenced to life after the 1974 slaying of a trucker who was sleeping in his cab at an Interstate 40 rest stop near Winslow.

Greenawalt drew an "X" on the trucker's door near his head then fired a round through it. Greenawalt later confessed to killing another trucker in Arkansas and a man in Colorado.

On July 30, 1978, Greenawalt and Gary Tison escaped from Arizona State Prison with the help of Gary's sons, Ricky, Ray, and Donnie.

The next night, the group kidnapped and shotgunned to death John and Donnelda Lyons, their 2-year-old son Christopher, and their teenaged niece, Theresa Tyson, in Yuma County.

They then drove north, changing cars several times, and apparently murdered a newly wed couple, James and Margene Judge, in Colorado. They then turned south again, driving the Judges' van.

On August 11, 1978, they were able to run a roadblock that the authorities had established in Pinal County. At the next roadblock when the van would not stop, the authorities fired on it, killing Donnie Tison. The authorities captured Greenawalt and Ricky and Raymond Tison, but Gary Tison was able to escape into the desert.

Gary Tison was found dead in the desert several days later.

Ricky and Raymond Tison, who were under 20 years old at the time of the shootings, were also sentenced to death. On appeal, their sentences were reduced to life in prison.

The search for the Tison gang was the largest manhunt in Arizona history. The escape heaped scorn on an Arizona prison system where the warden's favorite ego-stroking inmates pretty much had the run of the place. It was turned into a Hollywood, made-for-TV movie starring Robert Mitchum as Gary Tison.

Greenawalt lived through 19 years of litigation before his execution.


Presiding Judge: Douglas W. Keddie
Prosecutor: Michael Irwin
Start of Trial: February 6, 1979
Verdict: February 16, 1979
Sentencing: March 26, 1979

Aggravating Circumstances

Prior convictions punishable by life imprisonment
Prior convictions involving violence
Grave risk of death to others
Pecuniary gain Especially heinous/cruel/depraved

Mitigating Circumstances



State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981).
Greenawalt v. Ricketts, 784 F.2d 1453 (9th Cir. 1986).
Greenawalt v. Ricketts, 943 F.2d 1020 (9th Cir. 1991).
Greenawalt v. Ricketts, 953 F.2d 1020 (9th Cir. 1991),
reh'g en banc denied, 961 F.2d 1457 (9th Cir.), cert. denied, 113 S. Ct. 117 (1992).

Last Meal

Cheeseburger, Fries, Coffee with milk

Arizona executed Randy Greenawalt

Thu, 23 Jan 1997

FLORENCE, Ariz. (AP) -- A man who spent 18 years on death row was executed by injection early Thursday for murdering four people after a prison break, including a 22-month-old boy.

Randy Greenawalt, 47, was serving a life sentence for a 1974 murder when he and fellow killer Gary Tison escaped from the state prison in Florence on July 30, 1978, with the help of Tison's three sons.

The next night, they kidnapped and killed a Yuma family and stole their car. The bodies of Marine Sgt. John Lyons, 24, his wife, Donnelda, 23, and their little boy, Christopher, were found near the fugitives' abandoned car. The body of the couple's niece, Theresa Tyson, 15, was found later a quarter-mile away.

After driving north and changing vehicles several times, the gang apparently killed Texas newlyweds James and Margene Judge near Pagosa Springs, Colo. That case was never prosecuted.

On Aug. 11, 1978, the Tisons and Greenawalt were back in Arizona, driving the Judges' stolen van. They ran one roadblock but were stopped at a second.

Police killed one of Tison's sons, and Tison fled into the desert, where he died of exposure. Greenawalt and the surviving sons, Raymond and Ricky Tison, were captured, tried and sentenced to death.

The Tisons' death sentences were overturned by the state Supreme Court in 1992, and they were resentenced to life in prison.

Greenawalt's lawyers had argued in appeals that the state's use of lethal injection was cruel and unusual punishment.

Gary Gene Tison & Randy Greenawalt (7+)

On July 30, 1978, Gary Gene Tison and Randy Greenawalt had enough of their life sentences at the Arizona state prison. The imposing Tison, feared and respected by fellow inmates, had killed a policeman for shoving his wife. Greenawalt, a pudgy man with a very high IQ, was doing time for serial-killing at least two, maybe four truck drivers, by shooting them in the head while they slept in their cabs.

Transferred to the low-security Trusty Unit for excellent behavior, Tison and Greenawalt pulled off a daring escape in broad daylight. They were aided by Gary's young and near-brainwashed sons Donny, Ricky and Ray. After suffering two flat tires on rough Arizona back roads, they kidnapped a family of four for their car, then shotgunned the whole family to death. A week later, a game warden discovered the sun-bloated corpses in the desert. One of the victims had crawled a thousand feet before dying.

Failing to obtain a plane in which to fly to Mexico as planned, the gang tried to drive across the border in a stolen van. The owners of the van, a couple vacationing in Colorado, were later found dead in the woods. On the night of August 10 they met by a hail of gunfire that killed Donny, the van was forced off the road. Randy, Ricky and Ray were captured and sent to prison, but Gary, who had sworn he wouldn't be taken alive, died of dehydration in the desert, while hiding only a few feet away from a building where he could have turned himself in.

Finally, in Arizona, the Murderer of Theresa Tyson May Die

Number 21, February 2, 1997.

Nearly two decades ago, for 12 steamy monsoon days in August of 1978, police combed the Southwest for two escaped Arizona murderers and the three sons who sprung them from an Arizona state prison.

In those more easygoing times, Arizona's medium security facilities apparently offered little trouble to Gary Tison's three sons -- Donald, 20, Ricky, 19, and Raymond, 18 -- when they decided to sneak in an ice chest containing revolvers and sawed-off shotguns on visitors' day.

They broke out their father, Gary Tison, serving a life sentence for killing a Phoenix jail guard in 1967. Randy Greenawalt, serving his own life term for shooting a Flagstaff truck driver through the head in order to rob him in 1974, tagged along.

The five raced for the California state line, but suffered a flat tire near Quartzite. When Marine Sgt. John Lyons, 24, of Yuma stopped with his family to help, the five fugitives shot and killed them all.

Lyons' 15-year-old niece, Theresa Tyson, survived longest. Mortally wounded when a bullet shattered her thigh, sending bone fragments into her abdomen, she crawled a quarter mile into the desert to escape. Her body was found five days later, huddled over the small dog with whom the family had traveled, as though to protect it. The dog was also dead.

In July, the Western Arizona sun can kill within hours.

Also murdered were Sgt. Lyons' 23-year-old wife, Donnelda, and the 22-month-old infant she clutched in her arms.

Eldest of three children, Theresa Tyson was the "star" of her family. After her death, her younger brother tried to fill her shoes, taking over the training of the family dogs. When one of the animals dashed out into the street a month after Theresa's death, her brother followed ... was himself struck by a truck and killed.

The Tison gang are believed to have killed two more innocents to accomplish their next car switch -- a honeymooning couple from Amarillo who probably had the misfortune to encounter the gang at a construction roadblock in Colorado.

The bodies of James and Margeen Judge were finally found in November, at a remote Colorado campsite.

When the gang was finally stopped by a curtain of bullets at a police roadblock near Casa Grande on Aug. 11, 1978, driver Donald Tison was the first to die. His father, Gary, fled into the desert, perishing of exposure within two days. Greenawalt and the surviving Tyson brothers were convicted of four counts of murder, each, and sentenced to death in March, 1979.

Now, 18 years later, multiple murderer Randy Greenawalt's appeals finally seem to have reached an end. Arizona might actually execute Greenawalt today, Jan. 23.

It's easy to bellow bloodthirsty noises from a distance, if one is not personally required to throw the switch. Capital punishment is the ultimate use of the state's massive power, and there's no denying it has been misused in the past.

On the other hand, those who argue that individuals deserve the liberty to bear arms and generally do as we please, up to the point where we assault the liberties of others, are fond of mouthing easy assurances that "All we have to do is hold people responsible if and when they do harm others."

Hold responsible, how? Convict Greenawalt was already locked up "for life" for his first murder. Fat lot of good that did.

In the words of Bob Corbin, who went on to head the NRA after serving as Arizona's attorney general from 1978 to 1990: "He deserves it. I hope the hell they carry it out this time. If they'd executed him for his crime the first time, those people might still be alive today."

That's the context in which this terrible closure should be viewed. At each step, he and his accomplices had the option of not killing the people whose cars they stole.

Will the late Sgt. Lyons ever have the "choice" whether to attend the high school graduation of his son Christopher ... his tiny head blown off by a shotgun blast as he lay clutched in his terrified mother's arms in their back seat on July 31, 1978?

And what about Theresa Tyson, 15, mortally wounded and dragging herself off to die in the desert, removing her dog's collar and tags and placing them around her own leg as her last act in this world, in hopes that someone finding her bones would at least be able to tell her parents where she'd reached her final rest?

The victims are too often forgotten, as the now-gray-haired prisoners "find religion," hone their book-learning, and while away their days authoring endless, ornate appeals based on every nuance of legal flummery.

After 18 years, today is a good day for Randy Greenawalt to die.

Death in the Desert

An Arizona man hunt succeeds, but too late

Monday, Sep. 4, 1978

There wasn't much good that anyone could say about Gary Tison except that he inspired a remarkable loyalty from his family. Imprisoned at the age of 25 for holding up a grocery store, he used a meeting with his wife Dorothy as an opportunity to escape from a visiting room in Arizona's Final County Jail.

Recaptured and later paroled, Tison was accused of a parole violation in 1967 when he passed a bad check. Instead of appearing at the court hearing, he overpowered the prison guard escorting him and shot him dead with his own pistol. That put Tison into the Arizona State Prison in Florence with a life sentence for murder.

But Tison's family rallied round. On July 30, he was visited by his son Ricky, 18, and the two chatted in a fenced picnic area at the prison. At the same time, two of Tison's other sons, Raymond, 19, and Donald, 20, decided to visit their father. They carried a box of food into the prison. Checking in at the lobby, one of them pulled a sawed-off shotgun out of the box and aimed it at a guard. Soon the three sons were escorting their father out of prison. With them went Convicted Murderer Randy Greenawalt, 29, who had helped out by cutting off telephones and alarm systems.

The five men strolled so casually toward their getaway car that the tower guard assumed they were departing visitors. But on the next day the fugitives' car had a flat tire. Marine Sergeant John F. Lyons, 24, heading from his home in Yuma, Ariz., to visit relatives in Nebraska, stopped to help. Lyons, his wife Donnelda, 24, and their 22-month-old son Christopher were all shot to death. A niece of the Lyons, Teresa Tyson, 16 (no kin to the Tisons), was wounded in the hip and was later found in the desert, having bled to death.

One of the biggest man hunts in Arizona's history pursued the murderous Tison family, and police set up a roadblock near Tison's home town of Casa Grande, Ariz. Soon, a silver van slowed at the signal from police, then sped on with a blast of gunfire from its windows. Five miles down the road, alerted deputies at another roadblock fired at the passing vehicle, killing Donald Tison. After a half-hour gun battle his two brothers and Greenawalt surrendered. The father, Gary, fled into the desert.

Police discovered that the van was registered to James Judge Jr., 24, of Amarillo, Texas. He and his new bride Margene had been honeymooning in Colorado and had called home to say they would be seated 20 rows above the 5-yd. line at a televised football game between the Denver Broncos and Dallas Cowboys in Denver. The seats were vacant during the game—and the Judges are presumed to have been killed by the Tisons.

As the search for Tison continued, more than 300 police officers and hundreds of civilian volunteers probed the desert, in heat up to 120° F., near the small town of Chuichu, Ariz. They found nothing. But last week Ray Thomas, 27, a chemical company worker, smelled a foul odor when he went out to dispose of some trash about 1½ miles from the point where the fugitives' van had been ambushed. Searching around, he soon found the decomposed and bloated body of Gary Tison lying face up under a mesquite tree. Unwounded, he had apparently died of exposure to the heat of the desert.

Greenawalt and the two surviving Tison brothers were promptly charged with multiple murder. But José de la Vara, deputy county attorney of Yuma County, said the father had been "released to a higher authority."

784 F.2d 1453

Randy Greenawalt, Petitioner-Appellant,
James R. Ricketts, Director of Corrections; Donald Wawrzasek, Superintendent of the Arizona State Prison; and Robert K. Corbin, Attorney General, State of Arizona, Respondents-Appellees.

No. 84-2752

Federal Circuits, 9th Cir.

March 20, 1986

Appeal from the United States District Court for the District of Arizona.

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.



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.



Greenawalt raised numerous issues on appeal from the denial of his petition for a writ of habeas corpus. Because we reverse and remand to enable the district court to apply Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), to the facts of this case, we believe that to conserve judicial resources we should decline to reach the other issues.

The district court noted in one line of its disposition that, if Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), were applied to Greenawalt's case, the statements to Detective Tom Brawley would not have been admissible.1 The court, however, interpreted a recent Supreme Court decision, Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), to preclude the application of Edwards and found that Greenawalt's statements to Brawley were voluntary.

In Solem v. Stumes, the Court held that Edwards would not be applied "retroactively," since Edwards had not been " 'clearly' or 'distinctly' foreshadowed" by previous law. Id. at 649, 104 S.Ct. at 1345. Also, in Stumes, direct appeals were exhausted prior to the date of the Edwards decision and the case was before the Supreme Court as a result of the prisoner's collateral attack on his conviction. Subsequently, the Supreme Court further clarified its Stumes decision by holding that Edwards was applicable to all cases pending on direct review at the time of Edwards. See Shea v. Louisiana, --- U.S. ----, 105 S.Ct. 1065, 1071, 84 L.Ed.2d 38 (1985). Edwards remains inapplicable to all cases in which direct review has been completed prior to the Edwards decision date.

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.

Moreover, this is consistent with the long acknowledged principle that denials of certiorari are not decisions on the merits and carry no precedential value. United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361 (1923); 1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice p 0.402, at 30-31 (2d ed. 1984).

It follows that we reject the government's contention that the Supreme Court previously held that Edwards was inapplicable to the facts of this case. Moreover, because Greenawalt's petition for certiorari following direct review of his conviction by the Supreme Court of Arizona was pending when Edwards was decided and was thereafter denied, we hold that this case is governed by Shea and not Stumes. That is, Greenawalt's case was pending on direct review at the time Edwards was decided and thus was entitled to the degree of retroactivity of Edwards that Shea permits. In short, Edwards must be applied to the facts of Greenawalt's questioning.

Because we are reluctant to accept as conclusive the district court's one-line statement that Brawley's questioning violated Edwards,2 and because on the basis of this record we are uncertain what the consequences of any such violation should be, we remand this case to the district court for a thorough and reasoned application of Edwards to the facts of this case. Therefore, we reverse and remand this case.



1 E.R. item 7 at 17

2 Edwards held that "an accused, ... having expressed his desire to deal with the 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, exchanges, or conversations with the police." 451 U.S. at 484-85, 101 S.Ct. at 1885. An argument may be made that Greenawalt's 10-15 minute consultation with his lawyer, conducted through a small hole in a door, with a jailer standing next to the prisoner, constituted making counsel "available" to him. We express no opinion regarding the merits of this argument

943 F.2d 1020

Randy Greenawalt, Petitioner-Appellee,
James R. Ricketts, Director, Arizona Doc; Donald Wawrzaszek, Superintendent, Asp; Robert K. Corbin, Attorney General, State of Arizona, Respondents-Appellants.

No. 88-1828

Federal Circuits, 9th Cir.

August 22, 1991

Appeal from the United States District Court for the District of Arizona.

Before WALLACE, Chief Judge, and ALARCON and WIGGINS, Circuit Judges.

WALLACE, Chief Judge:

During a brief period of freedom following his escape from an Arizona state prison, Greenawalt kidnapped three people, murdered four, committed two armed robberies, and stole a motor vehicle. After confessing to some of these crimes, he was convicted and sentenced to death, and his conviction and sentence were affirmed on direct appeal, more than a decade ago. See State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (en banc) (Greenawalt I), cert. denied, 454 U.S. 882 , 102 S.Ct. 364, 70 L.Ed.2d 191 (1981); see also State v. Greenawalt, 128 Ariz. 388, 626 P.2d 118 (en banc) (affirming conviction including assault and unlawful flight), cert. denied, 454 U.S. 848 , 102 S.Ct. 167, 70 L.Ed.2d 136 (1981).

Greenawalt then petitioned for a writ of habeas corpus. The district court denied this petition, but Greenawalt appealed and we ordered a limited remand in light of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (holding that once accused requests counsel, police-initiated interrogation must cease until counsel is made available). See Greenawalt v. Ricketts, 784 F.2d 1453, 1456 (9th Cir.) (Greenawalt III), cert. denied, 479 U.S. 890 , 107 S.Ct. 290, 93 L.Ed.2d 264 (1986). The district court granted the petition on remand, and the state then appealed.

In their second appearance before this court, the parties initially confined their briefing to the Edwards issue. We ordered full briefing, however, since the issues not remanded remain before us from the first appeal. See id. We now consider the entire petition. The district court had jurisdiction pursuant to 28 U.S.C. 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. 2253. We affirm in part and reverse in part.


* Our prior opinion describes the facts in great detail. See Greenawalt III, 784 F.2d at 1454-56; see also Greenawalt I, 128 Ariz. at 154-55, 624 P.2d at 832-33. Our description here will be brief.

Greenawalt was already serving a life sentence for murder when he escaped from prison with Tison, a fellow prisoner, aided by Tison's three sons. The entire group left the prison after the Tison sons, while ostensibly visiting their father, carried an ice chest full of firearms into the prison visitation area. They remained at large for almost two weeks. They kidnapped and then killed John and Donnelda Lyons, and the couple's niece, Theresa Tyson. They also killed the Lyonses' two-year-old son, Christopher. Gun shells and fingerprints later linked the escapees and their companions to the murders of all four victims.

Greenawalt and two of Tison's sons were captured after a high speed chase during which Tison's third son was shot dead. Tison himself, who eluded capture, was subsequently found in the desert dead of exposure.

Upon taking Greenawalt into custody, the police gave him a pat-down search, handcuffed him, and placed him in the back of a pickup truck. They later strip-searched him and retained his clothing as evidence. The police initially left Greenawalt naked in the back of the truck, but after a short while he was given a blanket and put in a police sedan.

The police then explained the Miranda rights to Greenawalt and requested that he make a statement. Greenawalt refused and asked for counsel. The interrogation immediately ceased, but Greenawalt was later approached by other law enforcement and corrections officers. Greenawalt confessed to some of these officers but not others. Officers explained his Miranda rights, and he repeatedly invoked his right to counsel.

At some point Greenawalt was taken to jail, and after his arrival he spoke briefly with his counsel. Greenawalt was then returned to his cell and some time later, after another Miranda warning, Greenawalt again confessed.

The state trial judge excluded the earlier confessions but admitted the final one.


Greenawalt contended that his confessions were obtained in violation of his fifth amendment right to counsel, and that the admission of his final confession at trial required his petition be granted. The district court agreed, holding that Edwards requires the exclusion of any confession given in response to police interrogation outside the presence of counsel once counsel has been requested. The district court held that by admitting Greenawalt's final confession, the state trial court failed to comply with Edwards, since this confession was obtained outside the presence of counsel and after Greenawalt's request.

The district court's interpretation of Edwards has since been ratified by the Supreme Court in Minnick v. Mississippi, --- U.S. ----, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (Minnick). The facts in Minnick are strikingly similar to those of the present case. Minnick murdered two people following his escape from jail. He was eventually apprehended and then interrogated by federal law enforcement officials. Though the interrogation ceased when Minnick requested counsel, after Minnick conferred with counsel the interrogation resumed outside the presence of counsel. Minnick confessed. His confession was admitted at trial, and he was convicted. The Supreme Court reversed, holding that any confession given in response to police interrogation outside the presence of counsel, once counsel had been requested, may not be introduced at trial unless the defendant himself had reinitiated the communication. Id. 111 S.Ct. at 491-92.

The district court's holding comports with Minnick. If this were on direct review, we would affirm. But it is not, and the Supreme Court has limited the power of federal courts to impose new constitutional commands in collateral proceedings.


In Teague v. Lane, a plurality of the Supreme Court stated that new rules generally would not be retroactively applied to cases on collateral review. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1074-75, 103 L.Ed.2d 334 (1989) (Teague) (O'Connor, J., plurality opinion) (rejecting the retroactivity analysis of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)). This position has since been affirmed by a majority of the Court, and expressly extended to capital, as well as noncapital cases. Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 1259-60, 108 L.Ed.2d 415 (1990) (Saffle); Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 1214, 108 L.Ed.2d 347 (1990) (Butler); Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989) (Penry). Teague also observed that new rules generally would not be announced in cases on collateral review. Teague, 489 U.S. at 316, 109 S.Ct. at 1078. This analysis, too, has been subsequently affirmed by a majority of the Court. Penry, 492 U.S. at 313, 109 S.Ct. at 2943-44.

Recognizing that Minnick raises a retroactivity question, we ordered supplemental briefing. In its supplemental brief, the State contends that Minnick announced a new rule precluded from retroactive application to this collateral review. In response, Greenawalt contends that he does not seek the benefit of Minnick, but rather, as the district court held, merely the benefit of Edwards.

Greenawalt raises an interesting contention, but we do not accept it. The district court's Edwards analysis directly parallels the Supreme Court's ruling in Minnick. Therefore, if Minnick announced a new rule, the district court did so as well. See Harriman v. Lynn, 901 F.2d 64, 67-68 (5th Cir.1990) (rejecting similar argument when considering retroactivity of Arizona v. Roberson by stating that, "there would be little point in declaring that Roberson announced a new rule, if, on the same facts as those in Roberson, a court held that Edwards earlier compelled [relief].").

A new rule may not be announced on collateral review any more than it can be applied on it. Penry, 492 U.S. at 313, 109 S.Ct. at 2943-44; Teague, 489 U.S. at 316, 109 S.Ct. at 1078. This principle applies equally to all levels of the federal judiciary; a new rule announced by a district court can have no greater retroactive effect than one announced directly by the Supreme Court. Whether we focus on Minnick or the district court's holding, the question remains the same: is this a new rule precluded from retroactive application on collateral review?

"In Teague, [the Supreme Court] defined a new rule as a rule that 'breaks new ground,' 'imposes a new obligation on the States or the Federal Government,' or was not 'dictated by precedent existing at the time the defendant's conviction became final.' " Saffle, 110 S.Ct. at 1260, quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070 (emphasis in Teague). The breadth of this definition was demonstrated by Butler, where the Court found that the rule announced by Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (Roberson), was new for purposes of the retroactivity analysis.

In Roberson, the Court held that an Edwards request regarding any charge invokes the right to counsel with regard to all. Id. at 675-76, 108 S.Ct. at 2093-95. Emphasizing that Edwards had created a "bright-line rule," the Court in Roberson stated that prohibiting all police-initiated interrogation once the accused requests counsel "follows ... from Edwards and Miranda." Id. at 681, 684, 108 S.Ct. at 2097-98, 2099-2100. Based on this language, the petitioner in Butler argued that Roberson did not create a new rule, and was merely an application of Edwards to a new set of facts. Butler, 110 S.Ct. at 1217.

The Court rejected this argument. In doing so, it placed no reliance on Roberson's self-description as declining "to craft an exception to [Edwards]." Roberson, 486 U.S. at 677, 108 S.Ct. at 2096. Instead, the Court directed its attention to the prior existence of reasonably contrary interpretations of Edwards.

Courts frequently view their decisions as being "controlled" or "governed" by prior opinions even when aware of reasonable contrary conclusions reached by other courts.... [But i]t would not have been an illogical or even a grudging application of Edwards to decide that it did not extend to the facts of Roberson. We hold, therefore, that Roberson announced a "new rule."

Butler, 110 S.Ct. at 1217-18. The Supreme Court's conclusion did not depend on a survey of all antecedent case law. Rather, the existence of just two prior decisions reasonably contrary to Roberson justified its characterization as a new rule. Id., 110 S.Ct. at 1217 (relying on decisions by the Fourth and Seventh Circuits). This approach is consistent with the primary purpose of habeas corpus review, which is to encourage compliance with existing constitutional commands. Id.; Teague, 489 U.S. at 306, 109 S.Ct. at 1072-73.

Minnick is much like Roberson in all relevant respects. It is predicated on Edwards. It characterizes its holding as "an appropriate and necessary application of the Edwards rule," one which merely declines to create an exception. Minnick, 111 S.Ct. at 491. It does not ratify uniformly consistent prior case law; lower courts previously arrived at a different conclusion. For example, the decision of the Mississippi Supreme Court from which certiorari was granted in Minnick held that Edwards afforded no further protection once counsel had been made available. Minnick v. State, 551 So.2d 77, 83 (Miss.1988), rev'd, --- U.S. ----, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). Likewise, Griffin v. Lynaugh, 823 F.2d 856, 863-64 (5th Cir.1987), cert. denied, 484 U.S. 1079 , 108 S.Ct. 1059, 98 L.Ed.2d 1021 (1988), held that interrogation may proceed after the satisfaction of an Edwards request. Similarly, United States v. Halliday, 658 F.2d 1103, 1105 (6th Cir.), cert. denied, 454 U.S. 1127 , 102 S.Ct. 978, 71 L.Ed.2d 115 (1981), held the police may reinitiate interrogation after the accused has been afforded an opportunity to consult with counsel. Although subsequently undone by Minnick, these interpretations of Edwards are neither illogical nor grudging, as Halliday explains:

Edwards emphasizes the necessity of counsel being made "available" or of the defendant having "access" to counsel, rather than holding that once the accused requests counsel he may thereafter be questioned only in the presence of counsel. Here Gallagher had access to two attorneys. Court-appointed counsel was made available to him, and in addition he retained and spoke with private counsel. Thus the FBI did not impermissibly initiate a second interrogation after defendant requested counsel.

Id. (citations omitted). Halliday, Griffin, and the state court decision in Minnick, while contrary to the Supreme Court's subsequent decision in Minnick, are reasonable applications of Edwards. Their existence demonstrates that Minnick was not dictated by Edwards, but rather, is an extension of it, about which reasonable courts might differ. Therefore, we hold that Minnick announced a new rule. Because the district court's holding is coextensive with it, we hold that it, too, imposed a new rule.


A new rule is generally precluded from retroactive application on collateral review. Butler, 110 S.Ct. at 1214; Teague, 489 U.S. at 310, 109 S.Ct. at 1074-75. Likewise, a new rule generally cannot be announced in a case on collateral review. Penry, 492 U.S. at 313, 109 S.Ct. at 2943-44; Teague, 489 U.S. at 316, 109 S.Ct. at 1078. This would complete our analysis of this issue, but there are two exceptions to these general principles.

The first exception allows a new rule to apply retroactively in collateral proceedings when it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Butler, 110 S.Ct. at 1218 (internal quotations omitted); Teague, 489 U.S. at 307, 109 S.Ct. at 1073 (internal quotations omitted). This exception is inapplicable here, because Minnick's procedural requirements do not alter the state's authority to prosecute Greenawalt for murder, kidnapping, armed robbery, and theft. See Butler, 110 S.Ct. at 1218 ("The proscribed conduct in the instant case is capital murder, the prosecution of which is, to put it mildly, not prohibited by the rule in Roberson.").

The second exception is for new rules that are "watershed rules of criminal procedure" "without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 311, 313, 109 S.Ct. at 1075, 1077. On this issue, Butler's treatment of Roberson is again illuminating.

Because a violation of Roberson's added restrictions on police investigatory procedures would not seriously diminish the likelihood of obtaining an accurate determination--indeed, it may increase the likelihood--we conclude that Roberson did not establish any principle that would come within the second exception.

Butler, 110 S.Ct. at 1218. The second exception is likewise inapplicable here because the Supreme Court's holding in Minnick, and the district court's similar holding extend a prophylactic rule which results in the exclusion of probative trial evidence. As neither exception applies, we hold that the new rule announced by Minnick and the district court cannot be applied in this case on collateral review.


Once in custody, Greenawalt both requested counsel and repeatedly confessed his crimes. The State did not deny him counsel, and after conferring with counsel, Greenawalt again confessed. Faced with this situation, the state trial court excluded the confessions Greenawalt gave after he requested counsel and before it was made available to him, but admitted the confession given after Greenawalt spoke with counsel. The state trial court's rulings were reasonable in light of the precedent controlling on direct review, so they must be upheld on collateral review. The district court erred by imposing this new rule on collateral review. We therefore reverse the district court's holding on the Edwards issue.

This holding does not require, as Greenawalt contends, a remand for additional findings of fact. Greenawalt was provided the opportunity to overcome the presumptive correctness of the state court's findings of historical fact in the original district court proceedings, and he failed to do so. See 28 U.S.C. 2254(d). Nothing he has said before this court convinces us that the district court erred in this regard.

Our holding also requires that we reject Greenawalt's closely related sixth amendment contention. The sixth amendment entitles the accused to counsel once "adversary judicial criminal proceedings" have been initiated, "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). The parties disagree about whether Greenawalt was charged before he was interrogated, but we need not decide this question; Greenawalt's sixth amendment claim adds nothing to his fifth amendment claim.

We recognize that the two rights are not precisely coextensive, and that in some contexts, the sixth amendment affords protection not provided by the fifth. E.g., United States v. Wade, 388 U.S. 218, 223, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967) (recognizing sixth but not fifth amendment right to counsel at post-indictment line-up). But in the context of a custodial interrogation after the initiation of adversary judicial proceedings, we may treat the fifth and sixth amendment rights as both defined by the rule of Edwards. See Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404, 1411, 89 L.Ed.2d 631 (1986) (applying Edwards to analyze sixth amendment right to counsel in post-arraignment interrogation). We have already decided that an extension of Edwards to this case would impermissibly impose a new rule on collateral review. This is true whether we focus on the fifth or sixth amendment as the ultimate source of the Edwards claim.


In originally denying Greenawalt's petition, the district court rejected all of Greenawalt's other contentions of error. Greenawalt is entitled to a de novo determination of these contentions by us. Miller v. Vasquez, 868 F.2d 1116, 1118 (9th Cir.1989).

Greenawalt contends the confession admitted at trial was tainted by his prior inadmissible statements. His contention rests on Brown v. Illinois, 422 U.S. 590, 604-05, 95 S.Ct. 2254, 2262-63, 45 L.Ed.2d 416 (1975), in which the Supreme Court excluded a confession so tainted by a previous coerced confession so as to be coerced itself. Brown has been limited, however, to cases of actual coercion. Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (Elstad ).

Because Miranda's prophylactic rule "sweeps more broadly than the Fifth Amendment itself," a voluntary confession merely inadmissible on the ground of Miranda does not taint a subsequent voluntary confession. Id. at 306, 309, 105 S.Ct. at 1291-92, 1293. "If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself." Id. at 309, 105 S.Ct. at 1293.

While Elstad involved a failure to give the Miranda warnings, we conclude that its holding applies to other Miranda violations. Therefore, we hold that a voluntary confession inadmissible on the ground of Edwards does not taint a subsequent voluntary confession. By so doing, we follow those circuits that have already considered the question. See United States v. Cherry, 794 F.2d 201, 207-08 & n. 6 (5th Cir.1986) (holding admissibility of derivative evidence discovered through use of statements taken in violation of Miranda), cert. denied, 479 U.S. 1056 , 107 S.Ct. 932, 93 L.Ed.2d 983 (1987); Lamp v. Farrier, 763 F.2d 994, 998 n. 8 (8th Cir.), cert. denied, 474 U.S. 1009 , 106 S.Ct. 534, 88 L.Ed.2d 465 (1985).

Thus, we must determine whether the earlier as well as the admitted confessions were voluntary. United States v. Wauneka, 842 F.2d 1083, 1087 (9th Cir.1988). While we determine voluntariness de novo, we do, of course, "give great weight to the considered conclusions of a coequal state judiciary." Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985). The Arizona trial court, the Arizona Supreme Court, as well as the district court, all concluded that Greenawalt's confessions were voluntary.

As to his first set of confessions, Greenawalt contends the circumstances surrounding his arrest demonstrate deliberate police coercion. He observes that his arrest followed a 12-day search and a high speed chase in which one of his companions was fatally shot. The police "swarmed" and fired "aerial flares." Greenawalt's clothes were taken from him, and his glasses were lost. He was handcuffed. This conduct is described in Greenawalt's brief as just "short of physical torture."

As the state observes, however, Greenawalt was never threatened or subjected to any kind of rough handling or harassment. The 12-day search and high speed chase are surely irrelevant; the police were not coercing Greenawalt, they were attempting to capture him. Cf. California v. Hodari D., --- U.S. ----, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (suspect not seized within the meaning of the fourth amendment when chased).

Greenawalt's glasses were lost in the crash of his getaway vehicle, and not through any police action. His clothes were taken for a legitimate reason, their potential evidentiary value, and he was given a blanket to cover himself, before he made statements of any kind. His handcuffs were loosened upon request. Despite his attempts to characterize this environment as coercive, Greenawalt was hardly a stranger to it: he had already been twice convicted for murder, and he knew personally most of the officers who arrested him.

While newspaper accounts about the murder of Theresa Tyson may have influenced Greenawalt's admissions, the Supreme Court has made it clear that this type of influence is not coercion within the meaning of the fifth amendment. E.g., Colorado v. Connelly, 479 U.S. 157, 170-71, 107 S.Ct. 515, 523-24, 93 L.Ed.2d 473 (1986) (rejecting a proffered "free will" analysis of coercion); Elstad, 470 U.S. at 304-05, 105 S.Ct. at 1290-91 (observing that the fifth amendment is not concerned with "moral and psychological pressures to confess emanating from sources other than official coercion"); United States v. Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 1818-19, 52 L.Ed.2d 238 (1977) ("Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable.... Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions."). We hold that Greenawalt's initial confessions, though obtained in violation of Edwards, were nevertheless voluntary.

We reach the same conclusion about the admitted confession. No indicia of coercion were present at the time Greenawalt made his final confession, as Greenawalt appears to concede by his failure to argue the issue. Therefore, we hold that Greenawalt's final confession was both voluntary and untainted by his prior confessions, and could be admitted at trial consistent with Elstad.


Greenawalt next contends that his death sentence is unconstitutional. Most of Greenawalt's contentions are foreclosed by Walton v. Arizona, --- U.S. ----, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (upholding Arizona's death penalty statute), and Greenawalt conceded all but one of these contentions at oral argument. Greenawalt now contends only that the trial court failed to make the special findings of mens rea required by Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378-79, 73 L.Ed.2d 1140 (1982) (Enmund ), as well as those cases following it, Cabana v. Bullock, 474 U.S. 376, 390, 106 S.Ct. 689, 699, 88 L.Ed.2d 704 (1986) (Cabana), and Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987) (Tison). The issue is whether Teague prevents our consideration of the merits of this contention. As already observed, Teague held that new rules generally would not be retroactively applied to cases on collateral review. Teague, 489 U.S. at 310, 109 S.Ct. at 1074-75. Enmund was announced in 1982, the year after Greenawalt's conviction and sentence became final, so Greenawalt seeks the retroactive application of Enmund.

In Enmund, the Supreme Court held that in cases of accomplice felony murder, the eighth amendment requires a special showing of mens rea before the death penalty can be imposed. 458 U.S. at 801, 102 S.Ct. at 3378-79. Until that time, consistent with the common law, the death penalty could be imposed for felony murder without any showing of mens rea beyond that required for the underlying felony offense. Id. at 816-17, 102 S.Ct. at 3386-87 (O'Connor, J., dissenting). Enmund thus departed rather significantly from prior law, and in so doing, announced a new rule. As a new rule, Enmund is precluded from retroactive application on collateral review, unless it fits within one of Teague's two narrow exceptions.

The second exception clearly does not apply. The rule of Enmund, whatever its significance, is not a "watershed rule of criminal procedure" comparable to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the case most often cited in connection with this second exception. Saffle, 110 S.Ct. at 1264.

The first exception "cover not only rules forbidding criminal punishment of certain primary conduct but also rules prohibiting a certain category of punishment for a class of persons because of their status or offense." Penry, 492 U.S. at 330, 109 S.Ct. at 2953. We have already observed that the murders of which Greenawalt was convicted could have been proscribed by the state, see Butler, 110 S.Ct. at 1218. However, when considering the retroactivity of Enmund, we must determine whether Greenawalt falls within a class of persons, such as in Penry, that might arguably be beyond the power of the state to punish by death. Saffle, 110 S.Ct. at 1263.

Enmund holds that "the principles of proportionality embodied in the Eighth Amendment bar imposition of the death penalty upon a class of persons who may nonetheless be guilty of the crime of capital murder as defined by state law." Cabana, 474 U.S. at 385, 106 S.Ct. at 696; see also Enmund, 458 U.S. at 801, 102 S.Ct. at 3378-79 (Enmund holds that "the Eighth Amendment prohibits a State from executing a convicted felony murderer.") (O'Connor, J., dissenting). As implemented by Tison and Cabana, Enmund prohibits the sentence of death, absent a state court finding that the defendant was a "major participant in the felony committed" and exhibited a "reckless indifference to human life." Tison, 481 U.S. at 158, 107 S.Ct. at 1688.

Therefore, it can be argued that Enmund announced a substantive rule, although it was implemented through new procedural requirements. See Jones v. Thigpen, 741 F.2d 805, 811 (5th Cir.1984) (finding Enmund retroactive under Linkletter, and stating that the argument that Enmund is merely procedural is patently frivolous), vacated on other grounds, 475 U.S. 1003 , 106 S.Ct. 1172, 89 L.Ed.2d 292 (1986).

On the other hand, it is clear that this case presents a situation which Teague intended to cover. The Arizona courts could not have reasonably anticipated Enmund before it was announced, and accordingly, they required the state to prove only the mens rea for the underlying felony offenses. Indeed, Greenawalt was tried for felony murder, instead of murder in the first degree, after the Tison sons, who had identified Greenawalt as one of the actual triggermen, refused to testify. This approach fully complied with both the common law and the eighth amendment as theretofore interpreted. To require more now would not serve the primary purpose of habeas corpus review which, as already observed, is to encourage compliance with existing constitutional commands. Butler, 110 S.Ct. at 1217; Teague, 489 U.S. at 306, 109 S.Ct. at 1072-73.

However, we need not decide the retroactivity of Enmund, because Enmund would not change the outcome of this case. Enmund only requires a finding that the defendant was a major participant in the felony committed, and also exhibited a reckless indifference to human life. Tison, 481 U.S. at 158, 107 S.Ct. at 1688. To determine whether these findings have been made, we examine "the entire course of the state-court proceedings." Cabana, 474 U.S. at 387, 106 S.Ct. at 697.

When sentencing Greenawalt, the state trial judge said: "In the commission of the murders of John Lyons and Donnelda Lyons, [Greenawalt] knowingly created a grave risk of death to other persons in addition to those victims.... The defendant committed the offenses in an especially heinous, cruel and depraved manner." These statements satisfy Enmund's threshold requirement that Greenawalt exhibit "reckless indifference" to human life. In addition, the Arizona Supreme Court held that Greenawalt was an active participant in the felonies committed. Greenawalt I, 624 P.2d at 853. Thus, even if Enmund applies, both necessary findings were made by the state courts, and we need not remand on this issue.


Greenawalt's remaining contentions are clearly without merit. Greenawalt contends that the trial court erred by failing to instruct the jury on second degree murder or any lesser included offense. He correctly observes that due process requires such an instruction when the evidence warrants it. Beck v. Alabama, 447 U.S. 625, 636-37, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392 (1980). He fails to point out the Supreme Court's subsequent clarification that "[w]here no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process. Beck does not require that result." Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 3159, 82 L.Ed.2d 340 (1984).

Greenawalt was tried solely for felony murder, a crime for which Arizona law recognizes no lesser included offense. Greenawalt I, 128 Ariz. at 168, 624 P.2d at 846. Thus, this case is factually dissimilar from Vickers v. Ricketts, 798 F.2d 369, 370-71 (9th Cir.1986), cert. denied, 479 U.S. 1054 , 107 S.Ct. 928, 93 L.Ed.2d 980 (1987), in which we reversed a first degree murder conviction for the failure to give a second degree instruction provided by law. Here, the trial court committed no error.

Finally, Greenawalt contends that the district court erred by failing to order, on its own motion, all exhibits relevant to pretrial publicity before ruling on Greenawalt's petition. We have already rejected this contention. In Austad v. Risley, 761 F.2d 1348, 1354 (9th Cir.) (en banc), cert. denied, 474 U.S. 856 , 106 S.Ct. 163, 88 L.Ed.2d 135 (1985), we held that a petitioner must produce these exhibits himself, unless he proves his inability to do so. Greenawalt has demonstrated no such inability, so his contention is foreclosed by the rule of Austad.

Nor does the record demonstrate prejudice. A state court determination that the jury was impartial is a finding of historical fact treated as presumptively correct on collateral review. Patton v. Yount, 467 U.S. 1025, 1036-40, 104 S.Ct. 2885, 2891-94, 81 L.Ed.2d 847 (1984); 28 U.S.C. 2254(d). The state trial court proceeded to trial after determining that Greenawalt was not prejudiced by the pretrial publicity, and this determination was upheld on direct review. Greenawalt I, 128 Ariz. at 165, 624 P.2d at 843.

Greenawalt appears to concede as much; his primary contention in this regard is that he should be entitled to introduce the publicity exhibits in support of a new habeas corpus petition. The issue of whether a future petition would be abusive is not raised by this petition. It is true that Austad considered the issue nevertheless, but the Supreme Court has recently announced a new test for abuse of the writ, McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), so we cannot rely simply on Austad.

We therefore reverse the district court's grant of petition. As we have held, nonretroactivity controls the Edwards issue. The Elstad contention fails because Greenawalt's confessions were voluntary. Most of the sentencing contentions are foreclosed by Walton, as Greenawalt conceded at oral argument, and he cannot secure reversal by his remaining sentencing contention. A lesser included offense instruction is not required for felony murder in Arizona. The district court did not need to consider publicity exhibits that Greenawalt failed to produce, and the record does not demonstrate that Greenawalt was prejudiced by pretrial publicity in any event. Thus, the State fully complied with the federal constitutional standards in force when Greenawalt exhausted direct review, so his conviction and death sentence must be upheld on collateral review.


105 F.3d 1268

Randy Greenawalt, Petitioner-Appellant,
Terry L. Stewart, Et Al., Respondents-Appellees.

No. 88-1828

Federal Circuits, 9th Cir.

January 17, 1997

Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding. D.C. Nos. CV-83-2478-CLH, CV-96-988-SMM.

Before: WALLACE, ALARCON, and WIGGINS, Circuit Judges.



Death row inmate Randy Greenawalt petitions this court, pursuant to 28 U.S.C. 2253, for a certificate of probable cause (CPC) to appeal a final order of the district court denying his motions under Federal Rule of Civil Procedure 60(b)(6) and Federal Rule of Appellate Procedure 4(a)(6).

Those motions sought reconsideration of the district court's order which dismissed without prejudice Greenawalt's petition for writ of habeas corpus. He further attempts to appeal the denial by the district court of a CPC. Greenawalt also requests authorization to file successive habeas corpus petitions: one under the current 28 U.S.C. 2244(b)(3)(A) and one under prior law, a motion to recall the mandate in our prior opinion, and a motion for a stay of execution. The district court had jurisdiction pursuant to 28 U.S.C. 2254. We have jurisdiction pursuant to 28 U.S.C. 2253. We deny all requested relief.


* The State of Arizona sentenced Greenawalt to death following his conviction on four counts of murder in the first degree. Our first opinion concerning Greenawalt recounts the facts presented to the jury, and we will not repeat them here. See Greenawalt v. Ricketts, 784 F.2d 1453, 1454-56 (9th Cir.) (Greenawalt I ), cert. denied, 479 U.S. 890 , 107 S.Ct. 290, 93 L.Ed.2d 264 (1986).

The Arizona Supreme Court affirmed the conviction and sentence in 1981, and the United States Supreme Court denied certiorari. State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (en banc), cert. denied, 454 U.S. 882 , 102 S.Ct. 364, 70 L.Ed.2d 191 (1981); see also State v. Greenawalt, 128 Ariz. 388, 626 P.2d 118 (en banc), cert. denied, 454 U.S. 848 , 102 S.Ct. 167, 70 L.Ed.2d 136 (1981).

The district court dismissed Greenawalt's first federal habeas corpus petition, filed on December 21, 1981, for failure to exhaust his state court remedies. After proceeding in state court, Greenawalt filed an amended petition on May 31, 1984. The district court denied that petition on the merits, and Greenawalt appealed.

On March 20, 1986, we reversed the district court and remanded "for a thorough and reasoned application of Edwards [v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ] to the facts of this case." Greenawalt I, 784 F.2d at 1457. The district court granted the petition on remand. On appeal, we reversed. Greenawalt v. Ricketts, 943 F.2d 1020, 1030 (9th Cir.1991), cert. denied, 506 U.S. 888 , 113 S.Ct. 252, 121 L.Ed.2d 184 (1992) (Greenawalt II).

Greenawalt filed his second petition for post-conviction relief in the Arizona Superior Court on January 18, 1993. He asserted, among other things, that his counsel was ineffective at trial and at sentencing, and that "there is newly discovered evidence sufficient to change the sentence which he would have received." After holding an evidentiary hearing, the superior court denied Greenawalt's petition on March 31, 1995. The court held that Greenawalt's ineffective assistance claim was procedurally barred because he had raised it in his first state petition for post-conviction relief.

The court based that conclusion on the fact that the "ineffective assistance of counsel" box was checked on the original petition form, although Greenawalt did not raise the issue in the subsequent proceedings. The trial court also held that the evidence submitted regarding Greenawalt's mental condition was not "newly discovered evidence" because it was not a mitigating circumstance, and would not have affected his sentence. On February 19, 1996, Greenawalt filed a petition for review of the superior court's decision in the Arizona Supreme Court.

On April 23, 1996, Greenawalt filed a "Preliminary Petition for Writ of Habeas Corpus and Application for Appointment of Counsel" (preliminary petition) in the United States District Court for the District of Arizona. Although Greenawalt filed the preliminary petition pro se, Denise Young, an attorney in the Federal Public Defender's Office for the District of Arizona, has informed us that she drafted it on Greenawalt's behalf. There is no indication in the document of her authorship. In that petition, Greenawalt alleged that:

In Arizona, I was tried and I am being held, in violation of my federal constitutional rights. Among other constitutional violations, my right to due process, a fair trial and to be represented by effective assistance of counsel under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated when my sentencing counsel was ineffective.

The preliminary petition does not set forth any facts substantiating that federal constitutional claim. At the time Greenawalt filed the preliminary petition, the ineffective assistance of counsel claim described above was also pending before the Arizona Supreme Court.

Greenawalt also requested that the court appoint Denise Young as his attorney because of his indigent status, and "grant counsel after appointment sufficient time to amend this petition after [the] entire record is reviewed and proper investigation is conducted to ensure that all [his] federal constitutional issues are raised." Young was already Greenawalt's attorney in the second state post-conviction proceedings, which began in 1993.

The day after Greenawalt filed the preliminary petition, President Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1217-26 (Act), which substantially altered the standards and procedures governing federal habeas corpus review. Greenawalt concedes that he filed the preliminary petition "to preserve the district court's jurisdiction to hear the serious federal constitutional violations surrounding [his] conviction and death sentence ... that arguably could not be brought under the Act."

On September 5, 1996, the district court dismissed the preliminary petition without prejudice on the ground that he had not exhausted his state remedies.

It appearing that Petitioner has filed a second [state post-conviction relief] petition and that the Arizona Supreme Court has not decided a petition for review, Petitioner's preliminary habeas petition is prematurely before this Court. It is apparent to the Court that Petitioner filed his premature habeas petition the day before the Act was signed in an attempt to foreclose its application to his case.

The district judge also concluded that Greenawalt would not suffer any prejudice from the dismissal of the preliminary petition because the Act, he thought, applied to all pending cases, regardless of when they were filed. The court granted Greenawalt leave to refile his petition once the state court proceedings were completed. It did not rule on Greenawalt's motion for appointment of counsel or his request to proceed in forma pauperis. Greenawalt did not appeal the district court's order.

The Arizona Supreme Court summarily denied Greenawalt's petition for review on October 21, 1996, and denied reconsideration on December 17, 1996. Greenawalt filed a petition for certiorari in the United States Supreme Court on December 16, 1996, but the Court has not acted upon it. On December 23, 1996, Arizona issued a warrant scheduling Greenawalt's execution for 12:05 a.m. on January 23, 1997.

On January 2, 1997, Denise Young filed a motion to vacate the district court's September 5 Order pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, or alternatively to reopen the time for appeal under Federal Rule of Appellate Procedure 4(a)(6). The district court denied both motions on January 6, 1997. The court reasoned that

[t]he "preliminary" successive petition did not set forth Petitioner's claims and Petitioner was still in the process of exhausting claims in state court. Therefore, the Court properly dismissed the petition. The last page of the September 5 Order directed the clerk to send Petitioner a copy and his name also appeared on the computerized mailing list for this case. Petitioner did not submit an affidavit regarding non-receipt of a copy of the Order.

Ms. Young submitted an affidavit which states that Petitioner told her that he "did not recall" receiving a copy. After weighing the evidence, the Court finds that the clerk mailed a copy of the September 5 Order to the petitioner and that he received it. Although Ms. Young avows that she never received a copy, the last page of the Order directed the clerk to send her a copy and the Court assumes that the clerk did so. Furthermore, Ms. Young was not entitled to receive notice of the Order because she was not (and is not currently) appointed as Petitioner's counsel in the district court. Her copy was only a courtesy copy.

On January 8, 1997, a Federal Public Defender filed in the district court an application on Greenawalt's behalf for a CPC to appeal the January 6 Order. In that application, Greenawalt argued that a CPC should issue because (1) the district court "ignored Ninth Circuit precedent regarding retroactive application of the [Act]"; (2) although "it is true that [Greenawalt] was exhausting claims in the highest state court, [Greenawalt] did allege a claim of ineffective assistance of counsel"; (3) the district court should have stayed the action pending exhaustion in the state courts rather than dismissing it; and (4) Denise Young was entitled to notice of the court's September 5 Order.

The district court denied that application on January 10, 1997. It held that the January 6 Order did not "ignore" Ninth Circuit precedent regarding the Act's retroactivity; the Order recognized that the Act did not apply retroactively under Jeffries v. Wood, 103 F.3d 827 (9th Cir.1996) (Jeffries ). The court then held that it properly dismissed Greenawalt's preliminary petition because he "was still in the process of exhausting claims in state court." The district court also reiterated that Denise Young was not entitled to notice of the September 5 Order because she was never appointed to represent Greenawalt in federal district court. Finally, the court explained that its September 5 dismissal would not prevent Greenawalt from filing a new petition in federal court, which would be deemed his second rather than his third federal habeas corpus petition.

Greenawalt filed a notice of appeal from the district court's decision, and then turned his attention to this court. On January 13, 1997, Greenawalt filed (1) an application for a CPC to appeal the district court's January 6 Order, (2) a motion to recall the mandate in Greenawalt II, (3) a request for authorization to file a second habeas petition in federal district court, and (4) a motion for a stay of execution. We held oral argument by telephone on January 16, 1997. We address each of Greenawalt's contentions in turn.


Before its recent amendment, 28 U.S.C. 2253 provided that "[a]n appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding ... unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause." The district court denied Greenawalt's request for a CPC on January 10, 1997. Greenawalt then filed a notice of appeal from that decision.

Counsel for Greenawalt conceded at oral argument that she knows of no authority that states that the denial of a CPC is an appealable order. It is not. Greenawalt brings the issue to us by filing a new application for a CPC in the Court of Appeals. This he has done. Accordingly, the direct appeal from the district court's January 6 Order is dismissed.


Greenawalt has filed an application for a CPC to appeal the district court's January 6 Order. We have held before that a habeas corpus petitioner must obtain a CPC before he can appeal the denial of a Rule 60(b) motion. Lynch v. Blodgett, 999 F.2d 401, 402-03 (9th Cir.1993) (Lynch ). Because the district court's denial of his Federal Rule of Appellate Procedure 4(a)(6) motion was also a "final order in a habeas corpus proceeding," 28 U.S.C. 2253, we hold that a CPC is required to appeal that ruling as well.

The Act amends section 2253 to require that a "circuit justice or judge" issue a certificate of appealability before the court can hear an appeal in a habeas corpus case. We have suggested in dicta that "[t]he standard for obtaining a certificate of appealability under the Act is more demanding than the standard for obtaining a [CPC] under the law as it existed prior to enactment of the Act." Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.1996).

In Jeffries, we held that "the amendments to Chapter 153 of Title 28 of the United States Code contained in Title I of the Act do not apply to cases filed in the federal courts of this Circuit prior to the Act's effective date of April 24, 1996." Jeffries, 103 F.3d at 827. We have not decided whether the amendments to section 2253 requiring a certificate of appealability apply to cases in which no CPC had been issued as of the effective date. See Lowell v. Prunty, 91 F.3d 1358, 1359 (9th Cir.1996) (declining to decide whether the amendments to 28 U.S.C. 2253(c) apply to pending cases). We need not resolve this issue here, because we conclude that Greenawalt cannot meet even the more generous standard for the issuance of a CPC.

We will issue a CPC to appeal "only when a habeas petitioner has made a 'substantial showing of the denial of a federal right.' " Lynch, 999 F.2d at 403, quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394-95, 77 L.Ed.2d 1090 (1983) (Barefoot ). To satisfy the "substantial showing" standard, a petitioner "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3395 n. 4 (citations omitted).

We review the district court's denial of motions brought under Rule 60(b) and Rule 4(a)(6) for abuse of discretion. Lynch, 999 F.2d at 402-03; Nunley v. City of Los Angeles, 52 F.3d 792, 794 (9th Cir.1995) (Nunley ). Consequently, we must decide whether Greenawalt has "made a substantial showing that the district court abused its discretion by denying the ... motion." Lynch, 999 F.2d at 403, quoting Lindsey v. Thigpen, 875 F.2d 1509, 1512 (11th Cir.1989).

Rule 60(b)(6) provides that "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgement, order, or proceeding for ... any ... reason justifying relief from the operation of the judgment." This Rule "has been used sparingly as an equitable remedy to prevent manifest injustice.

The rule is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.) (Alpine Land ), cert. denied, 510 U.S. 813 , 114 S.Ct. 60, 126 L.Ed.2d 29 (1993); see also Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864, 108 S.Ct. 2194, 2204-05, 100 L.Ed.2d 855 (1988) (Rule 60(b)(6) relief available only under "extraordinary circumstances").

There were no such "extraordinary circumstances" in this case. Greenawalt was proceeding pro se in the district court, and the court found that he received timely notice of the September 5 Order. Convincing evidence in the record supports that finding, and it is not clearly erroneous. Competent counsel represented Greenawalt in parallel state proceedings, and counsel concedes that she assisted him with the federal action as well.

Greenawalt's failure to appeal the September 5 Order may be attributable to inattention or inexperience, but neither deficiency constitutes a "extraordinary circumstance" that justifies Rule 60(b)(6) relief. See Alpine Land, 984 F.2d at 1049 (collecting cases in which Rule 60(b)(6) relief was held appropriate). We hold that Greenawalt has failed to make a "substantial showing" that the district court abused its discretion by denying his Rule 60(b)(6) motion.

In addition, Greenawalt's failure to demonstrate any prejudice from the September 5 Order further justifies the district court's denial of the 60(b)(6) motion. Greenawalt sees it otherwise.

First, he argues that the district court abused its discretion by dismissing his preliminary petition instead of staying it while he exhausted his claims in state court. Greenawalt concedes, however, that his preliminary petition contained an unexhausted claim of ineffective assistance of counsel at sentencing. The Supreme Court repeatedly has instructed the district courts to dismiss "mixed" petitions containing any unexhausted claims.

In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (Rose ), the Court wrote that "because a total exhaustion rule promotes comity and does not unreasonably impair the prisoner's right to relief, we hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Id. at 522, 102 S.Ct. at 1205 (emphasis added).

More recently, the Court held that "[r]espondent's habeas petition should have been dismissed if state remedies had not been exhausted as to any of the federal claims." Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989) (unanimous opinion); see also Coleman v. Thompson, 501 U.S. 722 , 731, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991) ("This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims."). At oral argument, Greenawalt's counsel conceded that his current claims were not exhausted when the district court issued its September 5, 1996 order dismissing his preliminary petition.

In his application for a CPC, Greenawalt relies on Fetterly v. Paskett, 997 F.2d 1295 (9th Cir.1993) (Fetterly ), cert. denied, 513 U.S. 914 , 115 S.Ct. 290, 130 L.Ed.2d 205 (1994), and Neuschafer v. Whitley, 860 F.2d 1470 (9th Cir.1988) (Neuschafer ), cert. denied, 493 U.S. 906 , 110 S.Ct. 264, 107 L.Ed.2d 214 (1989), for the proposition that the district court should have stayed his petition instead of dismissing it. In Fetterly, we held that a district court should have stayed, rather than dismissed, a valid habeas corpus petition containing only exhausted claims to give the petitioner time to exhaust several newly-discovered claims in state court. Fetterly, 997 F.2d at 1301-02.

A district court has discretion to stay a petition which it may validly consider on the merits. But Greenawalt argues that the district court should have stayed a petition which, under Rose, it was obliged to dismiss immediately. Fetterly does not support that proposition.

In fact, the petitioner in Fetterly sought a stay because his counsel "recognized that if he moved to amend his petition in federal court [immediately], it would have been subject to dismissal under Rose v. Lundy because it contained unexhausted claims." Fetterly, 997 F.2d at 1298 (citation omitted); see also Phillips v. Vasquez, 56 F.3d 1030, 1034-35 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 683, 133 L.Ed.2d 530 (1995) (recognizing that "n Rose, the Supreme Court held that a petition containing both exhausted and unexhausted claims must be dismissed.").

Fetterly also involved a first federal habeas corpus petition, and the equities favoring a stay are obviously greatly diminished when a petitioner presents the issue, as here, in the context of a successive petition. See Fetterly v. Paskett, 15 F.3d 1472, 1484 (9th Cir.), cert. denied, 513 U.S. 914 , 115 S.Ct. 290, 130 L.Ed.2d 205 (1994) (Trott, J., concurring in denial of rehearing en banc); see also Lonchar v. Thomas, --- U.S. ----, ----, 116 S.Ct. 1293, 1299, 134 L.Ed.2d 440 (1996) ("Dismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty."); McCleskey v. Zant, 499 U.S. 467, 492, 111 S.Ct. 1454, 1469, 113 L.Ed.2d 517 (1991) ("f reexamination of convictions in the first round of habeas offends federalism and comity, the offense increases when a State must defend its conviction in a second or subsequent habeas proceeding on grounds not even raised in the first petition.").

In Neuschafer, we suggested in a footnote that "[w]hen a petitioner has not exhausted his state remedies before filing a federal habeas petition, a district court may hold the federal petition in abeyance, issue a stay of execution, and allow the petitioner an opportunity to exhaust his state remedies." Neuschafer, 860 F.2d at 1472 n. 1. To support that proposition, we cited two Ninth Circuit cases decided before Rose and several cases from other jurisdictions.

Our opinion makes it clear, however, that the issue was not before the court. See id. at 1472 ("Notably, Neuschafer did not request that the district court issue a stay and hold the federal petition in abeyance so he could return to state court to exhaust state remedies."). Therefore, the footnote is dicta. In light of Rose, and our consistent adherence to its directive that the district courts must dismiss petitions containing unexhausted claims, we cannot rely on that dicta.

Thus, the district court did not err by dismissing Greenawalt's preliminary petition on the ground that it contained an unexhausted claim. Supreme Court precedent, along with our own, compels that conclusion.

The Act's intervening changes to the federal habeas corpus laws do not affect this conclusion. To "protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings," Rose, 455 U.S. at 518, 102 S.Ct. at 1203, we require state prisoners to exhaust their claims in state court before coming to federal court with a habeas corpus petition.

We adhere to that requirement even though Congress and the Supreme Court periodically modify the rules governing the availability of habeas corpus relief in federal court. We acknowledge that the Act may have worsened Greenawalt's legal position while he was exhausting his state remedies; undoubtedly, there are many state prisoners in the same situation. But Congress intended to restrict the availability of habeas corpus relief when it passed the Act, and the Supreme Court has held that the Act is constitutional. Felker v. Turpin, --- U.S. ----, ----, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996) (Felker ). The district court correctly refused to help Greenawalt evade its requirements by accepting a federal petition which was plainly and concededly premature.

Second, Greenawalt argues that the district court's decision to dismiss his preliminary petition rested upon that court's erroneous assumption that the Act would apply retroactively. Since the district court's order, we have decided that the relevant provisions of the Act do not apply to petitions pending in federal district court on the date of its enactment. Jeffries, 103 F.3d at 827.

The district court's September 5 Order explains at some length that dismissal would not prejudice Greenawalt, because the Act would have applied to his preliminary petition. Although that conclusion was erroneous in light of Jeffries, it was also irrelevant. As we have already explained, the district court properly dismissed the petition for failure to exhaust state remedies. "When a district court lists several reasons for taking a certain action, and one of the reasons is flawed, the district court's decision should still be upheld if other reasons support the ruling." United States v. Stauffer, 922 F.2d 508, 516 (9th Cir.1990); see also United States v. Stevens, 548 F.2d 1360, 1363 n. 9 (9th Cir.) ("Even were we willing to assume that the court 'did the right thing for the wrong reason,' we would still be bound to affirm based on any grounds which validate the lower court's result."), cert. denied, 430 U.S. 975 , 97 S.Ct. 1666, 52 L.Ed.2d 369 (1977).

Third, Greenawalt contends that the district court erred by dismissing his preliminary petition without appointing counsel, pursuant to 21 U.S.C. 848(q)(4)(B) and McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). This argument has considerable force. The Sixth Circuit has decided recently that McFarland has limited application to cases involving "an already well-represented prisoner." In re Parker, 49 F.3d 204, 211 (6th Cir.1995); see also Steffen v. Tate, 39 F.3d 622, 627 (6th Cir.1994) (stay appropriate under McFarland only when petitioner is "truly unrepresented").

We need not decide this difficult issue, because we conclude that Greenawalt has failed to demonstrate, as he must, any prejudice attributable to the district court's failure to appoint counsel. Greenawalt, through his counsel, conceded at oral argument that he is not now asserting any federal claim which was exhausted fully on April 23, 1996. Even if the district court had appointed counsel under section 848(q)(4)(B) immediately after receiving the preliminary petition, any amended petition that counsel filed would therefore have been dismissed under Rose.

Greenawalt suggested at oral argument that the failure to appoint counsel prejudiced him in two respects. First, he pointed out that the State might have waived the requirement of exhaustion of remedies if counsel had asked. Greenawalt cannot satisfy his burden of showing prejudice by engaging in mere speculation. The State of Arizona has assured us that it would not have waived the exhaustion requirement, and nothing in the record suggests otherwise. Second, Greenawalt contends that counsel might have persuaded the district court to stay the petition instead of dismissing it, pursuant to Fetterly and Neuschafer. As we explained earlier, any such action by the district court would have violated Rose.

We hold that the district court properly dismissed Greenawalt's preliminary petition on September 5, 1996. The district court's refusal to reconsider that decision under Rule 60(b)(6) could not, therefore, have been an abuse of discretion. We hold that Greenawalt has not made a "substantial showing" that the district court abused its discretion by denying the Rule 60(b)(6) motion. The CPC to appeal that decision is denied.

Greenawalt also seeks a CPC to appeal the district court's denial of his motion to reopen the time for appeal under Federal Rule of Appellate Procedure 4(a)(6). That rule provides that a district court "may" reopen the time for appeal if it finds "that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry," and "that no party would be prejudiced" thereby. Greenawalt contends that his current attorney, Denise Young, never received notice of the September 5 Order.

We ordinarily review the denial of a 4(a)(6) motion only for abuse of discretion. Nunley, 52 F.3d at 794. The district court denied Greenawalt's 4(a)(6) motion on the ground that Young was not a "party entitled to notice" because she was never appointed to represent him in federal district court. Under the circumstances, we hold that Greenawalt has not made a "substantial showing" that the district court abused its discretion by denying the motion. We therefore deny his request for a CPC to appeal that decision.


Greenawalt also filed a motion urging us to recall the mandate in Greenawalt II, which denied his first federal petition. We have the power to recall the mandate in a prior case, but have held that we should exercise this power "only in exceptional circumstances." Zipfel v. Halliburton, 861 F.2d 565, 567 (9th Cir.1988).

Greenawalt urges us to recall the mandate because the Eighth Circuit Court of Appeals recently has questioned our resolution of one of the claims in his first habeas petition. See Reeves v. Hopkins, 102 F.3d 977 (8th Cir.1996) (Reeves ). In his first petition, Greenawalt relied on Beck v. Alabama, 447 U.S. 625, 636-37, 100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392 (1980), to argue that the trial court's failure to instruct the jury on a lesser-included offense violated his due process rights. We rejected that claim on the ground that " '[w]here no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process.' " Greenawalt II, 943 F.2d at 1029, quoting Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 3159-60, 82 L.Ed.2d 340 (1984).

In Reeves, the Eighth Circuit stated that it could not "agree with this interpretation of the Beck doctrine." Reeves, 102 F.3d at 983.

The State's position would say in effect that Beck means only that a criminal defendant is entitled to instructions on lesser included offenses to which state law says he or she is entitled. But if this were true, then Beck itself would have been decided differently. In Beck, as in this case, state substantive law specifically prohibited the giving of a lesser included offense instruction. The problem was not merely a trial court's decision not to instruct the jury, nor was it Alabama's definition of lesser included offenses. The unacceptable constitutional dilemma was that state law prohibited instructions on noncapital murder charges in cases where conviction made the defendant death-eligible.

Id. Greenawalt argues that we should recall our mandate to revisit this question.

Although the issue may be reasonably disputed, Reeves does not persuade us that we erroneously resolved Greenawalt's Beck claim. Greenawalt has not demonstrated the required exceptional circumstance. Greenawalt, if he chooses to do so, may call this issue to the attention of the Supreme Court, where inter-circuit disputes can be settled.


Greenawalt also has presented us with two separate, but interrelated, requests for authorization to file a successive habeas corpus petition in federal district court. First, he asks us to authorize a successive petition that the Act will not govern. In the alternative, he requests authorization under the new 28 U.S.C. 2244(b)(3)(A).

Greenawalt premises his first request upon the assertion that, as applied to the "unprecedented situation" presented in this case, the Act suspends the writ of habeas corpus. Since the new 28 U.S.C. 2244(b)(2)(B) forecloses all successive-petition review of constitutional claims unrelated to guilt or innocence, he argues that his ability to assert such a claim under the prior "cause and prejudice" standards of McCleskey has been "suspended" in violation of Article I, § 9 of the Constitution.

The Supreme Court foreclosed this argument in Felker, where it held that the Act's new restrictions on successive petitions were "well within the compass" of the evolving abuse of the writ doctrine. Felker, --- U.S. at ----, 116 S.Ct. at 2340. Judgments about the proper scope of the writ are, within broad limits, "normally for Congress to make." Id., quoting Lonchar, --- U.S. at ----, 116 S.Ct. at 1298. This request must, therefore, be denied.

To grant Greenawalt's other request for authorization to file a successive petition under the Act, we must certify that he has made a prima facie showing that he can satisfy its requirements. 28 U.S.C 2244(b)(3)(C). Those requirements are extremely stringent.

(b)(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. 2244(b)(2).

Greenawalt has not made a prima facie showing under either 28 U.S.C. 2244(b)(2)(A) or (B). He fails under part (A) because there is no "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court" that could apply in this case. He fails under part (B) because the constitutional error alleged by Greenawalt is ineffective assistance of counsel at sentencing, and he cannot demonstrate that "no reasonable factfinder would have found [him] guilty of the underlying offense" (emphasis added). Therefore, Greenawalt's request to file a successive petition is denied.


Finally, Greenawalt has filed a motion for a stay of execution. Under Barefoot v. Estelle, "[t]he granting of a stay should reflect the presence of substantial grounds upon which relief might be granted." Barefoot, 463 U.S. at 895, 103 S.Ct. at 3396. For the reasons discussed above, we hold that a stay of execution is not warranted, and the motion is denied.


Ricky Wayne TISON and Raymond Curtis Tison, Petitioners

Supreme Court of the United States

481 U.S. 137, 107 S.Ct. 1676 (1987)

Justice O'CONNOR delivered the opinion of the Court.

The question presented is whether the petitioners' participation in the events leading up to and following the murder of four members of a family makes the sentences of death imposed by the Arizona courts constitutionally permissible although neither petitioner specifically intended to kill the victims and neither inflicted the fatal gunshot wounds. We hold that the Arizona Supreme Court applied an erroneous standard in making the findings required by Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and, therefore, vacate the judgments below and remand the case for further proceedings not inconsistent with this opinion.

Gary Tison was sentenced to life imprisonment as the result of a prison escape during the course of which he had killed a guard. After he had been in prison a number of years, Gary Tison's wife, their three sons Donald, Ricky, and Raymond, Gary's brother Joseph, and other relatives made plans to help Gary Tison escape again. See State v. Dorothy Tison, Cr. No. 108352 (Super.Ct. Maricopa County 1981).

The Tison family assembled a large arsenal of weapons for this purpose. Plans for escape were discussed with Gary Tison, who insisted that his cellmate, Randy Greenawalt, also a convicted murderer, be included in the prison break. The following facts are largely evidenced by petitioners' detailed confessions given as part of a plea bargain according to the terms of which the State agreed not to seek the death sentence. The Arizona courts interpreted the plea agreement to require that petitioners testify to the planning stages of the breakout. When they refused to do so, the bargain was rescinded and they were tried, convicted, and sentenced to death.

On July 30, 1978, the three Tison brothers entered the Arizona State Prison at Florence carrying a large ice chest filled with guns. The Tisons armed Greenawalt and their father, and the group, brandishing their weapons, locked the prison guards and visitors present in a storage closet. The five men fled the prison grounds in the Tisons' Ford Galaxy automobile. No shots were fired at the prison.

After leaving the prison, the men abandoned the Ford automobile and proceeded on to an isolated house in a white Lincoln automobile that the brothers had parked at a hospital near the prison. At the house, the Lincoln automobile had a flat tire; the only spare tire was pressed into service. After two nights at the house, the group drove toward Flagstaff. As the group traveled on back roads and secondary highways through the desert, another tire blew out.

The group decided [p. 140] to flag down a passing motorist and steal a car. Raymond stood out in front of the Lincoln; the other four armed themselves and lay in wait by the side of the road. One car passed by without stopping, but a second car, a Mazda occupied by John Lyons, his wife Donnelda, his 2-year-old son Christopher, and his 15-year-old niece, Theresa Tyson, pulled over to render aid.

As Raymond showed John Lyons the flat tire on the Lincoln, the other Tisons and Greenawalt emerged. The Lyons family was forced into the backseat of the Lincoln. Raymond and Donald drove the Lincoln down a dirt road off the highway and then down a gas line service road farther into the desert; Gary Tison, Ricky Tison, and Randy Greenawalt followed in the Lyons' Mazda.

The two cars were parked trunk to trunk and the Lyons family was ordered to stand in front of the Lincoln's headlights. The Tisons transferred their belongings from the Lincoln into the Mazda. They discovered guns and money in the Mazda which they kept, and they put the rest of the Lyons' possessions in the Lincoln.

Gary Tison then told Raymond to drive the Lincoln still farther into the desert. Raymond did so, and, while the others guarded the Lyons and Theresa Tyson, Gary fired his shotgun into the radiator, presumably to completely disable the vehicle.

The Lyons and Theresa Tyson were then escorted to the Lincoln and again ordered to stand in its headlights. Ricky Tison reported that John Lyons begged, in comments "more or less directed at everybody," "Jesus, don't kill me." Gary Tison said he was "thinking about it." App. 39, 108. John Lyons asked the Tisons and Greenawalt to "[g]ive us some water ... just leave us out here, and you all go home." Gary Tison then told his sons to go back to the Mazda and get some water. Raymond later explained that his father "was like in conflict with himself.... What it was, I think it was the baby being there and all this, and he wasn't sure about what to do." Id., at 20-21, 74.

[p. 141] The petitioners' statements diverge to some extent, but it appears that both of them went back towards the Mazda, along with Donald, while Randy Greenawalt and Gary Tison stayed at the Lincoln guarding the victims. Raymond recalled being at the Mazda filling the water jug "when we started hearing the shots." Id., at 21.

Ricky said that the brothers gave the water jug to Gary Tison who then, with Randy Greenawalt went behind the Lincoln, where they spoke briefly, then raised the shotguns and started firing. Id., at 41, 111.

In any event, petitioners agree they saw Greenawalt and their father brutally murder their four captives with repeated blasts from their shotguns. Neither made an effort to help the victims, though both later stated they were surprised by the shooting. The Tisons got into the Mazda and drove away, continuing their flight. Physical evidence suggested that Theresa Tyson managed to crawl away from the bloodbath, severely injured. She died in the desert after the Tisons left.

Several days later the Tisons and Greenawalt were apprehended after a shootout at a police roadblock. Donald Tison was killed. Gary Tison escaped into the desert where he subsequently died of exposure. Raymond and Ricky Tison and Randy Greenawalt were captured and tried jointly for the crimes associated with the prison break itself and the shootout at the roadblock; each was convicted and sentenced.

The State then individually tried each of the petitioners for capital murder of the four victims as well as for the associated crimes of armed robbery, kidnaping, and car theft. The capital murder charges were based on Arizona felony-murder law providing that a killing occurring during the perpetration of robbery or kidnaping is capital murder, Ariz.Rev.Stat.Ann. § 13-452 (1956) (repealed 1978), and that each participant in the kidnaping or robbery is legally responsible for the acts of his accomplices. Ariz.Rev.Stat.Ann. § 13-139 (1956) (repealed 1978). Each of the petitioners was convicted [p. 142] of the four murders under these accomplice liability and felony-murder statutes.

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Petitioners then collaterally attacked their death sentences in state postconviction proceedings alleging that Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), which had been decided in the interim, required reversal. A divided Arizona Supreme Court, interpreting Enmund to require a finding of "intent to kill," declared . . . "the dictate of Enmund is satisfied" . . . .

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The Arizona courts have clearly found that the former exists; we now vacate the judgments below and remand for determination of the latter in further proceedings not inconsistent with this opinion. Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986).

It is so ordered.