Horace BUTLER, Petitioner-Appellant, v. James AIKEN, Warden, Central Correctional Institute, Travis Medlock, Attorney General, State of South Carolina, Respondents-Appellees, 864 F.2d 24

ORDER K.K. HALL, Circuit Judge. Before the Court for reconsideration is Horace Butler’s petition for rehearing with regard to his appeal of the district court’s order denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Butler, a South Carolina inmate, was convicted in state court in 1981 for the 1980 murder of Pamela Lane. After exhausting state remedies, Butler petitioned for federal habeas relief asserting a broad range of constitutional objections to the state criminal proceedings. Finding no merit in any of his claims, the district court denied relief and we affirmed. Butler v.

Aiken, 846 F.2d 255 (4th Cir.1988). A petition for rehearing and suggestion of rehearing en banc was subsequently denied on June 15, 1988. In our opinion, we rejected the bulk of Butler’s contentions for the reasons soundly expressed below by the district court. We addressed, in detail, only Butler’s claim that his confession resulting from interrogation on murder charges following his arrest and appearance with counsel on an unrelated offense violated the “bright line” rule against reinterrogation established in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Our conclusion that Edwards does not bar such interrogation if properly preceded by appropriate warning and waiver in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was cast into immediate and serious doubt by the Supreme Court’s decision in Arizona v. Roberson, — U.S. —, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). The Roberson Court expressly held that the Edwards rule does bar police initiated interrogation following a suspect’s request for counsel in the context of a separate investigation. — U.S. —, 108 S.Ct. at 2099.

In light of Roberson, we determined that Butler’s petition for rehearing should be reconsidered. Accordingly, we directed petitioner and respondents to file supplemental briefs on this issue. We have now received and examined that supplemental briefing. The petition for rehearing is, therefore, ripe for disposition. As an initial matter, we reject respondents’ effort to distinguish Roberson factually.

We assume for purposes of decision that the appearance of counsel with Butler at a bond hearing on the assault charge for which he was first arrested conclusively demonstrated invocation of Butler’s fifth amendment rights. The subsequent interrogation concerning the Lane murder, occurring during continuous custody, was contrary to the Edwards rule as modified in Roberson. If this case were before us on direct appeal, we would in all likelihood be compelled to reverse the conviction and remand for a new trial.

It does not follow, however, that Butler is entitled to habeas relief based upon a rule of law that was not in effect at the time of his arrest and trial. The retroactive effect of decisions such as Roberson in collateral proceedings is determined in accordance with three factors: (1) the purpose of the new rule of law; (2) the extent of reliance by law enforcement authorities on the old standard; and (3) the effect of retroactive application upon the administration of justice. Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986).

Although all are relevant, it is the first factor that is perhaps the most important for it is only when the new judicial formulation “enhances the accuracy of criminal trials” and “goes to the heart of the truth finding function,” Solem v. Stumes, 465 U.S. 638, 643-45, 104 S.Ct. 1338, 1341-43, 79 L.Ed.2d 579 (1984), that retroactivity is most appropriate. Applying this test to the instant case, we are fully satisfied that Butler may not claim any retroactive benefit from Roberson. The Edwards-Roberson limitations on police interrogation have only the most tangential relationship to truth finding.

They are, rather, a part of the prophylactic protection accorded the fifth amendment right to counsel as a means of establishing “guidelines to the law enforcement profession.” Roberson, — U.S. at —, 108 S.Ct. at 2097. The interrogation of appellant, while unquestionably contrary to the present “guidelines,” was conducted in strict accordance with established law in 1980. We, therefore, conclude that Butler may challenge his presumptively valid conviction only by demonstrating that there was an actual violation of his constitutional rights in 1980.

On that dispositive issue, the record discloses no support for Butler’s claim for habeas relief. It is undisputed that local authorities provided full Miranda warnings before questioning Butler on the Lane murder. It is further undisputed that Butler twice evidenced his knowing consent to interrogation without the presence of counsel by executing signed waivers. Every court that has considered this matter has concluded that the waiver of rights was un-coerced and utterly voluntary.

There is, therefore, no reason to find a technical violation based upon newly announced law when the record reveals that appellant freely waived any fifth amendment protections in 1980. For the foregoing reasons, we conclude that our initial affirmance of the district court’s decision in this matter was appropriate in substance.

In a requested poll of the Court on the suggestion for rehearing en banc, Chief Judge WINTER, and Circuit Judges PHILLIPS, MURNAGHAN, SPROUSE, and ERVIN voted to rehear the case en banc; and Circuit Judges RUSSELL, WIDENER, HALL, CHAPMAN, WILKINSON, and WILKINS voted against rehearing en banc. As the panel has considered the petition for rehearing and is of the opinion that it should be denied, and as a majority of the active circuit judges voted to deny rehearing en banc, it is ADJUDGED and ORDERED that the petition for rehearing and suggestion for rehearing en banc are denied.

ENTERED with the concurrences of Circuit Judges RUSSELL and CHAPMAN.