FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD EDWARD BEATY, 

Petitioner-Appellant, No. 05-99013

v. D.C. No.

DORA B. SCHRIRO, Director,  CV-92-02076-SRB

Arizona Department of OPINION Corrections,

Respondent-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted

May 14, 2007—San Francisco, California

Filed November 28, 2007

Before: Diarmuid F. O’Scannlain, Susan P. Graber, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge O’Scannlain

15229
COUNSEL

John E. Charland, Phoenix, Arizona, argued the cause and

filed briefs on behalf of the petitioner-appellant. Jon M.

Sands, Federal Public Defender, Phoenix, Arizona, and Dale

A. Baich, Assistant Federal Public Defender, Phoenix, Arizona, were also on the briefs. 

John Pressley Todd, Assistant Attorney General of Arizona,

Capital Litigation Section, Phoenix, Arizona, argued the cause

and filed a brief on behalf of the State of Arizona. Terry Goddard, Attorney General of Arizona, Phoenix, Arizona, and

Kent Cattani, Chief Counsel, Capital Litigation Section, Phoenix, Arizona, were also on the brief. 

OPINION

O’SCANNLAIN, Circuit Judge: 

We previously remanded this capital habeas appeal to the

district court with instructions to conduct an evidentiary hearing on whether Petitioner’s inculpatory statements to a prison

psychologist were voluntary within the meaning of the Fifth

Amendment. We must now decide whether the district court

erred in subsequently concluding that such statements were

constitutionally voluntary and therefore properly admitted at

Petitioner’s trial.

I

A

Donald Edward Beaty was convicted in Arizona state court

for the murder and sexual assault of thirteen-year-old Christy

Ann Fornoff. The facts surrounding this crime were detailed

in our previous opinion: 

15232 BEATY v. SCHRIRO
On May 9, 1984, thirteen-year-old Christy Ann

Fornoff disappeared at a Tempe, Arizona apartment

complex while making collections for her newspaper

route. Donald Beaty, a maintenance person for the

complex, actively assisted the police in searching for

Fornoff. Although the police located her collection

book near the complex, she was nowhere to be

found. 

In the early morning of May 11, Joseph Kapp, a

tenant, encountered Beaty while throwing out his

trash. Beaty told Kapp that he had found a body

behind the dumpster and that he had called the

police. Kapp observed the body, spoke with Beaty

for a few minutes, and then returned to his apartment. The police later arrived and determined that

the body was Fornoff’s. A medical examiner concluded that Fornoff had been asphyxiated by smothering and that she had been sexually assaulted, either

contemporaneously with or shortly after her death.

The examiner also opined that she had died within

two hours of her disappearance. 

The police focused their investigation upon Beaty.

Vomit smeared on the body matched a substance

found in Beaty’s closet. The blood, semen, and hair

found on the body was consistent with Beaty’s. Hair

found on Beaty’s closet carpet, couch, bedroom, and

bathroom was consistent with Fornoff’s. Fibers

found on the body matched Beaty’s carpet and a

blanket in his bedroom. Ferret hair was found on the

body; the tenant who lived in Beaty’s apartment a

few months prior to the murder owned a ferret. 

Police records showed that Beaty had called the

police at 5:52 a.m. According to Kapp, he had

returned to his apartment at 5:50 a.m. The timing

suggested that Beaty had lied to Kapp about having

BEATY v. SCHRIRO 15233
called the police. The police also speculated that

Beaty had moved the body after speaking with Kapp.

Robert Jark drove his truck in front of the dumpster

at approximately 4:50 that morning. As with Kapp,

Jark was sure that a body was not visible from in

front of the dumpster. However, when the police

arrived, the body stuck out noticeably beyond the

dumpster’s edge. 

Beaty told police that he was with George Lorenz,

a tenant, at the time Fornoff disappeared, and that

Teresa Harder, another tenant, saw them together.

However, Lorenz denied being with Beaty that night,

and Harder similarly denied seeing them together.

Beaty also claimed that the police had searched his

apartment the night Fornoff disappeared. However,

the two officers who searched the complex claimed

that they did not enter Beaty’s apartment. Finally,

the police found it suspicious that Beaty had

attempted, unsuccessfully, to borrow a friend’s car at

11:30 p.m. the night after Fornoff disappeared. The

police speculated that Beaty wanted to borrow a car

to move the body. 

On May 21, 1984, Beaty was arrested and charged

with Fornoff’s murder and sexual assault. 

Beaty v. Stewart, 303 F.3d 975, 980-81 (9th Cir. 2002) (hereinafter Beaty I) (footnote omitted).

B

After his arrest, Beaty was incarcerated at the Maricopa

County Jail (“the main jail”). He initially was classified as a

“high-risk” inmate because he appeared depressed and distraught over his arrest and his family’s reaction to his arrest.

As a high-risk inmate, Beaty was visited by a staff psychiatrist who was to perform an intake evaluation. That staff psy15234 BEATY v. SCHRIRO
chiatrist was Dr. George O’Connor, who spoke with Beaty for

about an hour and decided that he was not suffering from a

serious psychological condition. Id. In addition, Dr. O’Connor

learned that Beaty had a painful foot condition. In late August

1984, Beaty was transferred to the Durango Psychiatric Unit

(“Durango”) on the recommendation of Dr. O’Connor. As we

previously noted, this transfer served three purposes: (1)

Beaty needed space to rehabilitate his injured foot; (2)

Durango offered a safer place for Beaty because it was isolated from the jail’s general population; and (3) Beaty was

becoming increasingly agitated and depressed and undertook

a hunger strike. Id. at 981. 

At Durango, inmates were encouraged to participate in

some type of therapy, and both group therapy or one-on-one

therapy were provided. When an inmate transferred into

Durango, the staff worked with the inmate to develop a treatment plan tailored for that particular inmate; the resulting

document was treated as an agreement by the inmate to fulfill

the obligations contained in the treatment plan. 

The staff at Durango developed a coed therapy group as an

experiment to improve the relationship between male and

female inmates. Beaty was asked to participate in this group,

and he agreed.1 The coed therapy group was led by Dr.

O’Connor and by Lily Epler, an intern and graduate student

at the University of Arizona. At the first meeting of the group,

on Thursday, November 15, 1984, Beaty and the other

inmates signed a document entitled “Interpersonal Relationships Group Contract” (“IPG contract”), which provided in

relevant part: “I understand that all group communication is

confidential and therefore group business cannot be discussed

outside of group. Only in this way can I feel free to express

my feelings.” 

1Although there is a dispute over how and why Beaty was chosen to

participate in such an experimental group, the district court found that his

participation in the Tuesday/Thursday group was voluntary, and that finding is not clearly erroneous. 

BEATY v. SCHRIRO 15235
During the group’s second meeting, Beaty became agitated

after a discussion of his alleged crime was raised by another

participant (a female juvenile in the group named Sherry).

Beaty felt that he was being verbally attacked and that discussion of his crime was outside the scope of the group’s goals.

He approached Dr. O’Connor when the group session ended

and, after waiting in line while others spoke to Dr. O’Connor,

finally was able to get Dr. O’Connor alone. Beaty testified

that he conveyed to Dr. O’Connor that he “was upset that my

case got brought up when it was my understanding that the

group was supposed to be about relationships.” He stated that

he never told Dr. O’Connor anything about his alleged crime

or about the victim.2

Dr. O’Connor’s memory of their conversation paints a

starkly different picture. Dr. O’Connor stated that Beaty was

extremely agitated during this conversation and stated that “he

was not a terrible person and did not mean to kill Christy

Fornoff.” Dr. O’Connor testified that Beaty used, along with

these words, hand motions (“gestalt”) to indicate that he only

intended to muffle the girl’s mouth. Dr. O’Connor testified

that the clear message he took away from this altercation was

that Beaty “had done it.” Immediately after Beaty made the

statement, Dr. O’Connor, who was in a rush to leave, extricated himself from the therapy room. Dr. O’Connor testified

that the statement made him uncomfortable. 

Beaty attended the next meeting of the coed group but,

according to his testimony, he decided to quit after he felt he

was unfairly attacked again. There is a dispute over what

prompted his transfer from the Durango facility, but it is

undisputed that Beaty was returned to the main jail on Thursday, November 29, 1984. The district court suggested that

2Although Beaty contends that he never confessed to Dr. O’Connor, he

may still argue that the confession, which was introduced at his trial, was

coerced within the meaning of the Fifth Amendment. See Lee v. Mississippi, 332 U.S. 742, 745 (1948). 

15236 BEATY v. SCHRIRO
such transfer was likely in preparation for his first trial, which

was slated to begin in mid-December and explicitly concluded

that Beaty was not transferred “as a punishment for quitting

the coed group.” 

C

Dr. O’Connor did not immediately disclose Beaty’s inculpatory statements and gestures to anyone, and Beaty’s case

proceeded to trial. The state’s case rested primarily on the

physical evidence tying Beaty to the crime. On March 18,

1985, the trial court declared a mistrial after the jury deadlocked ten to two in favor of guilt. As we recounted in Beaty

I:

On May 8, 1985, Beaty’s second trial commenced.

Two days later, O’Connor went to state court to testify in an unrelated case. While waiting to testify,

O’Connor spoke casually with a detention officer.

During the course of the conversation, O’Connor

disclosed Beaty’s confession. The prosecution

quickly learned about the conversation and contacted

O’Connor. [He] refused to testify but, after an evidentiary hearing, the trial court ordered him to do so.

During the second trial, the state presented much

of the same evidence as it had offered at the first

trial, but with the addition of O’Connor’s testimony.

The jury unanimously found Beaty guilty of first

degree murder and sexual assault. The judge thereafter conducted a sentencing hearing without a jury.

The judge imposed the death penalty after finding

one aggravating circumstance and no mitigating circumstances. 

303 F.3d at 982-83. 

After the conclusion of his state review, Beaty filed a

habeas petition under 28 U.S.C. § 2254. The district court iniBEATY v. SCHRIRO 15237
tially rejected all of Beaty’s claims and denied his petition,

but granted a certificate of probable cause allowing Beaty to

appeal. 

On appeal, we declined to issue a Certificate of Appealability (“COA”) on nearly all of Beaty’s claims. Beaty I, 303

F.3d at 994. As to Beaty’s claims surrounding the admission

of his confession to Dr. O’Connor, we rejected outright

Beaty’s claim that he was entitled to Miranda warnings prior

to his participation in the group because we concluded that

Beaty’s admission was spontaneous and not the result of

interrogation. Id. at 991. We also declined to issue a COA on

Beaty’s claim that the admission of O’Connor’s testimony

violated his Sixth Amendment right to counsel. Id. at 991-92.

We concluded, however, that a COA should be granted

with respect to Beaty’s claim that his statement to Dr.

O’Connor was involuntary under the Fifth Amendment. We

reasoned that the record was not fully developed as to “the

reasonableness of Beaty’s asserted belief that his statements

were protected by the terms of the agreement, taking into

account the circumstances surrounding Beaty’s statements to

O’Connor and the group discussion preceding this encounter.”

Id. at 993. “In light of the grave consequences at stake, [we

believed] that an evidentiary hearing on this issue before the

district court [was] necessary.” Id. We therefore remanded the

appeal to the district court with instructions to conduct an evidentiary hearing and to determine whether Beaty’s belief that

his statements were confidential was reasonable. Id. at 994. 

D

The district court held an evidentiary hearing on Beaty’s

voluntariness claim from October 19-21, 2004. During this

hearing, the court heard testimony regarding the coed group

therapy of which Beaty was a part. Witnesses at the hearing

included (1) Dr. O’Connor; (2) Beaty; (3) a mental health

expert called by Beaty (Dr. Overbeck); (4) three members of

15238 BEATY v. SCHRIRO
the coed therapy group (Lisa Valandingham, Donald Guyer,

and Geraldine Nosie); (5) two other jail psychiatrists at the

Durango facility (Dr. Potts and Dr. Garcia-Bunuel); and (6) a

jail counselor (Thomas Haines). 

In June 2005, the district court issued a Memorandum of

Decision and Order denying Beaty’s claim that his confession

was involuntary under the dictates of the Fifth Amendment.

The court concluded that “the attendant circumstances of Petitioner’s confession discredit the reasonableness of his assertion that the contract was an unqualified promise of complete

confidentiality.” It also concluded that even assuming a limited promise of confidentiality, such a promise did not cause

Beaty to confess and did not overbear his will against selfincrimination. In addition, the district court declined to consider Beaty’s Miranda claim, ruling that the previous decision

in Beaty I foreclosed the issue. 

Beaty filed a timely notice of appeal. 

II

A

We think it important to note at the start that the circumstances of this case are hardly typical of situations in which

questions about the voluntariness of a confession arise. As the

Seventh Circuit has stated in a similar context, “[t]his case,

unlike so many others that we see in the course of our work,

does not involve formal police interrogation in a government

facility dedicated to law enforcement work. Nor does it

involve the usual face-to-face confrontation between law

enforcement officers and the defendant.” United States v.

D.F., 115 F.3d 413, 419 (7th Cir. 1997) (D.F. II). Instead, this

case involves the interaction between an inmate and a prison

psychiatrist, the degree to which there were promises of confidentiality between the two, and the degree to which any such

promises overbore the inmate’s will to avoid selfBEATY v. SCHRIRO 15239
incrimination. The difficulty of this case thus lies in the need

to apply our well-settled law on voluntariness to a unique factual situation. 

[1] The Fifth Amendment, made applicable to the states

through the Fourteenth Amendment, commands that no person “shall be compelled in any criminal case to be a witness

against himself.” U.S. Const. amend. V. We have interpreted

this proposition to mean that an inculpatory statement is voluntary “only when it is the product of a rational intellect and

a free will.” United States v. Leon Guerrero, 847 F.2d 1363,

1365 (9th Cir. 1988). “The test is whether, considering the

totality of the circumstances, the government obtained the

statement by physical or psychological coercion or by

improper inducement so that the suspect’s will was overborne.” Id. at 1366 (citing Haynes v. Washington, 373 U.S.

503, 513-14 (1963)).3

[2] In other words, a statement may be considered involuntary if it is “extracted by any sorts of threats or violence, [or]

obtained by any direct or implied promises, however slight,

[or] by the exertion of any improper influence.” Hutto, 429

U.S. at 30 (internal quotation marks omitted). But the breadth

of this rule is circumscribed by the requirement that “[t]he

promise must be sufficiently compelling to overbear the suspect’s will in light of all attendant circumstances.” Leon

Guerrero, 847 F.2d at 1366 (citing Hutto, 429 U.S. at 30). 

3

Importantly, the voluntariness test does not ask whether the suspect

would have given the statement “but for” the government conduct. As we

noted in Leon Guerrero: 

Causation, including but-for causation, has never been the test

for voluntariness. Hutto v. Ross, 429 U.S. [28,] 30 [(1976) (per

curiam)]. If the test was whether a statement would have been

made but for the law enforcement conduct, virtually no statement

would be deemed voluntary because few people give incriminating statements in the absence of some kind of official action. See

Schneckloth v. Bustamonte, 412 U.S. 218, 224-25 (1973). 

847 F.2d at 1366 n.1. 

15240 BEATY v. SCHRIRO
B

Beaty contends that, in discussing his case with Dr.

O’Connor, he reasonably relied upon the State’s promise of

confidentiality contained in the IPG contract. He argues that

he followed the “letter and spirit” of the contract by not

revealing group communication and by being candid with the

group psychiatrist. Beaty points to our decision in Pens v.

Bail, 902 F.2d 1464, 1465 (9th Cir. 1990) (per curiam), as

support for his argument that when a psychiatrist promises

confidentiality to facilitate a discussion of a prisoner’s problem, anything said by the prisoner to the doctor is inadmissible. In his view, the district court erred in distinguishing Pens

on the basis that the defendant in that case was undergoing

compulsory counseling, whereas Beaty was voluntarily participating in the group; he argues that even assuming that participation was voluntary, he was induced to participate in the

group by the promise of confidentiality. Beaty also argues that

the promise contained in the IPG contract was not contingent

and that the only reasonable interpretation is that group business could not be discussed outside the group by anyone. He

therefore asks us to conclude both that the conversation with

Dr. O’Connor was in fact confidential and that his confession

was induced by this promise of confidentiality. 

The State of Arizona contends that, in order for his confession to be suppressed, Beaty needed to establish (1) coercion

(2) by the State, which (3) caused his will to be overborne. In

their view, Beaty did not establish any of these elements at the

evidentiary hearing, let alone all of them. In particular, the

State points out that the district court found, as a matter of

fact, that Beaty’s relationship with Dr. O’Connor was not

intended to elicit a confession or to induce him to confess.

The State also notes that the district court found that “[t]he

facts show that the promised confidentiality did not reasonably extend to Petitioner’s conversation with Dr. O’Connor

after the group therapy session had ended.” Thus, in the

State’s view, the district court correctly held that there existed

BEATY v. SCHRIRO 15241
no coercive promise from the State. Moreover, Arizona

argues that even if either Beaty’s relationship with the doctor

or the group contract was classified as a coercive promise,

such promise did not overbear Beaty’s will.

C

In Beaty I, 303 F.3d at 993, we remanded to the district

court for an evidentiary hearing on the “critical question . . .

whether Beaty reasonably believed that his statements were

protected by the state’s confidentiality agreement.” On

remand, the district court found, as facts, that Beaty made his

statements to Dr. O’Connor outside the group communications that were the subject of the confidentiality agreement,

and thus outside the limited promise of confidentiality, and

that he confessed spontaneously after seeking out Dr.

O’Connor, rather than in response to questioning. The district

court simply did not believe Beaty when he testified that he

thought that the contract was across-the-board and when he

claimed that he had a close “nurturing” relationship with Dr.

O’Connor. 

The district court started by examining the IPG contract

and stating that it was reasonable to interpret it as applying to

a conversation with Dr. O’Connor outside the group, immediately following a session. But then the court went into detail

about what actually happened and found—applying specific

facts to that theoretical construct—that “the attendant circumstances of Petitioner’s confession discredit the reasonableness

of his assertion that the contract was an unqualified promise[ ]

of complete confidentiality.” In other words, although the district court acknowledged that in theory Beaty’s belief could

have been reasonable, in fact his belief, even if genuine, was

not reasonable because of the surrounding circumstances.4 We

agree. 

4We review for clear error the district court’s factual findings. United

States. v. Wolf, 813 F.2d 970, 974 (9th Cir. 1987). Nevertheless, “ ‘the

ultimate issue of “voluntariness” is a legal question . . . .’ ” Arizona v.

Fulminante, 499 U.S. 279, 287 (1991) (quoting Miller v. Fenton, 474 U.S.

104, 110 (1985)). 

15242 BEATY v. SCHRIRO
First, the scope of the IPG contract is not as broad as Beaty

would have it. As the district court noted, by its terms, the

promise of confidentiality applies only to “group” communications. Beaty himself testified that he understood the contract

to mean “we couldn’t go back into our pods and discuss what

was in — what we talked about in the group.” He further

stated that the remedy for breaching this group confidentiality

“was never discussed. We were just told not to go back into

the pods and talk about group business.” 

[3] In other words, the contract extended only to what was

talked about amongst the group. It did not serve to establish

a full patient-physician privilege and did not guarantee complete confidentiality for any statement made by Beaty, however unrelated it might have been to the group. And further,

during a discussion of the contract in the group, participants

were told that it meant they could not go back to their pods

and discuss group business; at no point were they told that

they were assured complete confidentiality for any and all

statements that they made. In this situation, the lack of clear,

broad language extending the promise of confidentiality outside the confines of the group session, and the lack of any

such broad promise by the therapists running the group, support the district court’s conclusion that Beaty could not have

relied upon the contract itself to establish a reasonable belief

in confidentiality.5

[4] Second, there was a window of time between the end

of the group session and Beaty’s statement. According to

Beaty’s own testimony at the hearing, he waited patiently

with his knee on a chair while another inmate spoke with Dr.

O’Connor. When that conversation ended, Beaty approached

5

Indeed, we note that a similar conclusion was reached many years ago

by the Arizona Supreme Court, which held that Beaty’s “inculpatory statements were not regarding group business nor were they given during the

group session. The statements were not induced or coerced by defendant’s

membership in the group.” State v. Beaty, 762 P.2d 519, 527 (Ariz. 1988).

BEATY v. SCHRIRO 15243
Dr. O’Connor as he was in the process of putting some paperwork in a satchel. It is not disputed that it took at least five

minutes, and perhaps as long as 15 minutes, from the end of

the group session to the time that Beaty began to speak with

Dr. O’Connor. This lapse in time supports the conclusion that

the “group session” had ended; that any alleged “mandatory”

attendance requirement had ended; and that any statements

made by Beaty were not necessarily group communication.

Further, the fact that Beaty waited to be alone with Dr.

O’Connor before making his statement indicates that Beaty

himself did not believe this was the type of conversation he

would share with the group; in other words, it was not “group

communication.” Thus, the reasonableness of Beaty’s belief

that his statement fell within the scope of the “group” contract

is diminished both by the significant lapse in time from the

end of the group and from Beaty’s desire to speak with Dr.

O’Connor outside the group context. 

[5] Relatedly, inmates were told that they should not discuss their crimes with the staff, especially during the group

session. At oral argument, Beaty’s counsel emphasized that

Beaty was attempting to follow the directive of Drs.

O’Connor, Potts, and Garcia not to talk about his crime in the

group when he approached Dr. O’Connor well after the session ended. Yet at the same time, Beaty claims that his inculpatory statement constituted group business and thus fell

within the confidentiality parameters of the IPG contract.

There is clear internal tension in this argument; if Beaty were

attempting to follow the directive of Durango staff when he

approached Dr. O’Connor, such action discredits the reasonableness of his belief that the IPG contract itself would cover

communications regarding Beaty’s crime. 

[6] The reading of the IPG contract’s confidentiality provision offered by Beaty at the evidentiary hearing is, quite simply, unlimited in scope. And although the district court

entertained the possibility that Beaty’s belief was reasonable

in the abstract, it ultimately determined that such a broad,

15244 BEATY v. SCHRIRO
unlimited reading of the scope of the contract was not reasonable in the context of these facts. We agree with the district

court that, under the attendant circumstances, Beaty’s belief

in the unlimited nature of the IPG contract’s confidentiality

provision was not reasonable.

D

The district court also concluded that even if the IPG contract could be viewed as a limited “coercive promise,” it did

not in this case overcome Beaty’s will against selfincrimination. In reaching this conclusion, Beaty contends

that the district court erred in distinguishing his confession

from those suppressed as involuntary in Leyra v. Denno, 347

U.S. 556 (1954), and Pens, 902 F.2d at 1465. We agree with

the district court that any promise that might have existed did

not rise to the level of overcoming Beaty’s will. 

In Leyra, the petitioner’s aged parents were found murdered. 347 U.S. at 558. Suspicion quickly focused on Leyra

and he was subjected to repeated interrogations, including full

days and nights of questioning. During one such all-night

questioning, Leyra complained of a sinus attack. The police

arranged for a doctor to provide medical relief, but, in reality,

the doctor “was not a general practitioner but a psychiatrist

with considerable knowledge of hypnosis.” Id. at 559.

For an hour and a half or more the techniques of

a highly trained psychiatrist were used to break petitioner’s will in order to get him to say he had murdered his parents. Time and time and time again the

psychiatrist told petitioner how much he wanted to

and could help him, how bad it would be for petitioner if he did not confess, and how much better he

would feel, and how much lighter and easier it would

be on him if he would just unbosom himself to the

doctor. 

BEATY v. SCHRIRO 15245
Id. at 559-60. The Supreme Court reversed the denial of

Leyra’s habeas corpus application, holding “that use of confessions extracted in such a manner from a lone defendant

unprotected by counsel is not consistent with due process of

law as required by our Constitution.” Id. at 561. 

Beaty’s attempts to analogize his case to Leyra are unavailing. Leyra involved repeated interrogation, sleep deprivation,

and trickery. In Beaty I, we held in the Miranda context that

no custodial interrogation occurred in this case. In addition,

unlike in Leyra, where the deceptive use of the psychiatrist

was clearly intended to elicit a confession, we previously

noted that “[t]he factual record clearly reveals that the group

sessions were not deliberately designed to elicit incriminating

remarks. The purpose of the group was to explore interaction

between male and female inmates. The group was not organized to collect incriminating information to be used at trial.”

Beaty I, 303 F.3d at 991; see also id. at 992 (“The group sessions were not court-ordered and were not designed to acquire

information to be used at trial.”). The type of “overreaching”

police or state conduct which was present in Leyra is simply

absent in this case. See Colorado v. Connelly, 479 U.S. 157,

163 (1986) (noting that “the [voluntariness] cases considered

by this Court . . . have focused upon the crucial element of

police overreaching”). 

Pens is distinguishable on similar grounds. Pens was convicted on two counts of first-degree rape and committed to the

Western State Hospital (WSH). The treating therapists

assured Pens that “information he revealed during treatment

would not be disclosed to the courts.” Pens thereafter confessed to additional attempted and completed rapes. After

three years, WSH returned Pens to court along with a report

detailing the confessions and concluding that he was not safe

to be at large. The Ninth Circuit reasoned that “Pens was

committed under court order to a psychiatric treatment program at a locked state facility. Full confession and cooperation were represented as necessary for successful treatment

15246 BEATY v. SCHRIRO
and eventual release.” 902 F.2d at 1465. Thus, the court concluded the confession was involuntary and improperly formed

the basis for an exceptional sentence. 

But here, as discussed above, Beaty was never assured of

complete confidentiality for any statements he made, nor was

he told that information revealed to Dr. O’Connor “would not

be disclosed to the courts.” In addition, Beaty was not committed to the mental ward by the state, but instead sought out

a transfer to Durango and voluntarily participated in counseling. Beaty I, 303 F.3d at 992 (“The group sessions were not

court-ordered and were not designed to acquire information to

be used at trial.”). Whereas in Pens, “[f]ull confession and

cooperation were represented as necessary for successful

treatment and eventual release,” 902 F.2d at 1465, no similar

quid pro quo was established here. Beaty’s treatment was

largely incidental to his incarceration and his cooperation in

the treatment program was by no means a prerequisite for his

eventual release. Moreover, Beaty agreed that it was his decision to remain behind after the group ended and that no one

forced him to speak to Dr. O’Connor. Thus, there is no reason

to doubt the district court’s conclusion that any “coercive”

aspect of Beaty’s treatment program was not the cause of his

confession.6

6This deficiency also distinguishes Fulminante, where the Supreme

Court deemed involuntary a statement made by a prisoner to his cellmate,

a government agent. The government agent/cellmate promised to protect

Fulminante from “credible threats of violence” if he confessed his crime.

499 U.S. at 288. The court found that such an agreement, considered in

light of the fact that Fulminante could be hurt or killed without protection,

had overborne his will against self-incrimination. Id. The promise here

was not coercive as it was in Fulminante: Beaty did not face specific

threats of violence at the main jail and, even if he did, Beaty was not presented with the stark choice either to confess or to be sent back to that jail.

At most, Beaty was asked to participate passively in the group, and perhaps to discuss his feelings about personal relationships, which is a far cry

from being coerced to confess. Moreover, the district court found as a matter of fact that participation in the coed group was voluntary and that

Beaty was not transferred back because of his refusal to participate in the

group. See infra at III.B. 

BEATY v. SCHRIRO 15247
Finally, the Seventh Circuit’s decision in D.F., although it

may present the closest analogy in existing case law, is also

distinguishable. In D.F., the defendant, a juvenile girl, was

admitted against her will by her aunt and legal guardian to the

county mental health facility after two of her infant cousins

were found dead in the span of a week. United States v. D.F.,

63 F.3d 671, 673 (7th Cir. 1995) (D.F. I). The defendant had

a history of assaultive behavior and drug and alcohol abuse;

there was also evidence that she had suffered physical and

sexual abuse during her childhood. While at the facility, D.F.,

then 14 years old, participated in a group therapy session. At

one session, D.F. “spontaneously told the group that she had

killed her cousins.” Id. at 675. The district court suppressed

the statements, ruling: 

After considering the totality of the circumstances,

I conclude that D.F.’s inculpatory statements were

secured through psychological coercion and were not

the “product of a rational intellect and free will.” circumstances under which they were employed, the

various “encouragement” techniques employed by

the staff were highly coercive. A reasonable person

of D.F.’s age, intellect, and mental state would have

felt coerced. 

Id. at 676 (quoting Blackburn v. Alabama, 361 U.S. 199, 208

(1960)) (internal citation omitted). 

The Seventh Circuit affirmed, concluding that the “district

court’s findings of historical fact were solidly rooted in the

record.” D.F. II, 115 F.3d at 421.7 The critical finding of fact

fatal to Beaty’s analogy is that in the D.F. case,

7

In D.F. I, the Seventh Circuit reviewed the district court’s decision

under a clear error standard of review. 63 F.3d at 677. After that decision

was vacated by the Supreme Court in light of Ornelas v. United States,

517 U.S. 690 (1996), the Seventh Circuit adhered to its earlier reasoning

under a de novo standard of review in D.F. II, 115 F.3d at 421. 

15248 BEATY v. SCHRIRO
Staff at the Center went to great lengths to encourage and develop her trust. They also employed a

wide range of tactics to “encourage” her to talk

about the crimes she had committed. Privileges were

accorded based on, among other things, frank admission of crimes. Criminal admissions were forgiven

subject to continued cooperation and disclosure.

Individual staff questioned D.F. directly about her

past crimes. Protective Services Staff were provided

with information about her crimes, and were allowed

to question her about further crimes. 

Id. No similar findings of fact were made here by the district

court; indeed, the district court’s findings of fact are to the

contrary. The district court concluded that “neither the contract nor Dr. O’Connor asked Petitioner to reveal anything

potentially inculpatory;” Beaty waited 5 to 10 minutes to talk

to Dr. O’Connor, during which time he was free to leave; Dr.

O’Connor’s conduct within the coed group did not coerce

Beaty’s statement; Dr. O’Connor did not bring up Beaty’s

charges, other group members did; Beaty was asked to volunteer for the group, and not forced to join; Beaty was discouraged from discussing his crimes in the group; and Beaty was

a relatively high-functioning inmate who, his own expert testified, had I.Q. scores that were “average to superior.”

8

 Unlike

in D.F., therefore, the structure of treatment did not encourage

confessions, no rewards were gained from confessions, criminal admissions were not forgiven, and Beaty was not forced

to participate. 

8The district court made additional findings of fact regarding Beaty’s

mental functioning. In particular, the district court considered evidence

from Dr. Overbeck about a hemisphere discrepancy in Beaty’s brain

which might make him more susceptible to coercive tactics. The district

court noted nonetheless that not only were Beaty’s IQ scores above average but that, during his testimony at the evidentiary hearing, Beaty

appeared poised, alert, and articulate. 

BEATY v. SCHRIRO 15249
In addition, although the D.F. court acknowledged that

prison counselors could be considered “law enforcement surrogates,” they emphasized that any questioning “must be of a

nature that reasonably contemplates the possibility of criminal

prosecution.” D.F. I, 63 F.3d at 683. Whereas in D.F. the

“[s]taff members at the Center were either enlisted or volunteered to act as law enforcement surrogates in eliciting confessions from troubled teens,” D.F. II, 115 F.3d at 420, no

similar relationship has been established here between the

police and the staff at Durango. Indeed, Dr. Potts, Dr. GarciaBunuel, and Dr. O’Connor all testified that discussion of

criminal activities was not part of their group therapy process;

and as we previously stated, “[t]he factual record clearly

reveals that the group sessions were not deliberately designed

to elicit incriminating remarks.” Beaty I, 303 F.3d at 991. 

[7] In short, considering the district court’s findings of

facts, we conclude that Beaty’s will against self-incrimination

was not overborne by the limited promise of confidentiality

contained in the IPG contract. 

E

[8] In conclusion, we agree with the district court’s determination that Beaty’s reliance upon the IPG contract to protect the confidentiality of his confession was not reasonable

given the surrounding facts and circumstances. We also agree

that any promise that existed, whether in the form of a contract or a relationship, was not sufficiently compelling or

coercive to have overborne Beaty’s will against selfincrimination. Accordingly, Beaty’s inculpatory statement

was voluntary within the meaning of the Fifth Amendment

and therefore properly admitted at his second trial.

III

There are two additional issues that we must resolve with

respect to Beaty’s voluntariness claim. In Beaty I, we reserved

15250 BEATY v. SCHRIRO
judgment and left for the district court Beaty’s arguments that

his statements were involuntary (1) because he was coerced

by his fellow group members and (2) because he was forced

to participate in the group sessions. 303 F.3d at 994 n.11.9 The

district court addressed these contentions on remand and

determined that neither of Beaty’s arguments merited habeas

relief. 

A

Beaty first claims that his statement was involuntary

because it was coerced by his fellow group members. The district court rejected this contention because it found a lack of

state action that was reasonably likely to illicit a confession.

See Connelly, 479 U.S. at 164 (“Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant

of due process of law.”). First, the district court concluded

that Dr. O’Connor was not the person who brought up Beaty’s

charges in the group. As discussed above, a juvenile member

of the group attacked Beaty as being a “very unfeeling person.” According to Beaty’s own testimony, “either Dawn or

Sherry,” not Dr. O’Connor or Lily Epler, brought up his

charges initially. Thus, the district court’s factual finding that

it was not a state actor who initiated the discussion of Beaty’s

“unfeeling nature” and his crime was not clearly erroneous. 

Further, as we stated in our previous opinion in another

context, “[t]he factual record clearly reveals that the group

sessions were not deliberately designed to elicit incriminating

remarks. The purpose of the group was to explore interaction

9We also reserved judgment in our original disposition on Petitioner’s

claim that the decision in Ring v. Arizona, 536 U.S. 584 (2002), applies

retroactively to habeas proceedings. Beaty I, 303 F.3d at 994 n.12.

Because that issue has been determined conclusively by the Supreme

Court to Beaty’s disfavor, see Schriro v. Summerlin, 542 U.S. 348 (2004)

(holding that the rule of Ring does not apply to death penalty cases already

final on direct review), we need not address it. 

BEATY v. SCHRIRO 15251
between male and female inmates. The group was not organized to collect incriminating information to be used at trial.”

Beaty I, 303 F.3d at 991. Nothing said or introduced at the

evidentiary hearing undermines our conclusion. This stands in

stark contrast to other cases, such as D.F., where a confession

was deemed involuntary. In D.F., the staff at the treatment

facility “employed a wide range of tactics to ‘encourage’ her

to talk about the crimes she had committed.” D.F. II, 115 F.3d

at 421. Furthermore, privileges were accorded based on the

frank admission of crimes and such admissions were forgiven

subject to continued cooperation and disclosure. Id. In this

case, no such state action existed during the group sessions or

in their formation. Indeed, at the evidentiary hearing, all staff

members who testified agreed that inmates were not encouraged to discuss their crimes in the group. 

[9] Based upon these findings, we agree with the district

court that there was insufficient state action on the part of the

group participants sufficient to render Beaty’s statement

involuntary. 

B

Beaty next argues that his confession was involuntary

because he was forced to participate in the group under threat

of being returned to the main jail. The district court concluded

that Beaty was not forced to participate in the coed group

therapy. In addition, the court noted that Beaty’s transfer to

the main jail was not a result of his withdrawal from the therapy group. Indeed, it found, as a matter of fact, (1) that Beaty

never told anyone he planned to quit the group, and (2) that

Beaty was transferred from Durango prior to the time of the

fourth group session (which would have been his first missed

session). Thus, the court concluded that Beaty’s transfer to the

main jail was unrelated to his personal decision not to participate any further in the coed therapy group. We discern no

clear error in these findings. See Lambert v. Blodgett, 393

F.3d 943, 964 (9th Cir. 2004) (“Factual findings and credibil15252 BEATY v. SCHRIRO
ity determinations made by the district court in the context of

granting or denying the [habeas] petition are reviewed for

clear error.”). 

Of the witnesses who testified at the evidentiary hearing,

only Beaty claimed that he was affirmatively compelled to

participate in the group. The district court failed to credit

Beaty’s testimony, instead accepting the testimony of the

other witnesses, who testified at the evidentiary hearing that

they were asked to participate in the group, not forced to participate. 

[10] One witness, Geraldine Nosie, testified that she could

have chosen not to participate in the group if she wanted and

noted that “it was a trial group and, basically, I guess they

were just selecting people that they felt should be there.” She

further testified that she “probably begged, cried, and whined

to get in to the group.” Another group member who testified,

Lisa Valandingham, stated that she was not required to join

the group and was not punished when she finally decided to

drop out of the group. Finally, Donald Guyer, another group

member, stated that he didn’t “recall feeling that I was compelled.” He further testified “there was no compulsion. I

didn’t have to. I wasn’t told I had to go there or I’d have to

leave the [Durango] facility.” The district court’s decision to

credit the testimony of these witnesses over Beaty’s was not

clearly erroneous. Thus, because there was no compulsion by

the state to participate in the coed group, the district court did

not err in concluding that his participation in the group was

not itself coercive. 

Moreover, even assuming that Beaty harbored a subjective

belief that his participation in the coed therapy group was

mandatory to avoid being sent back to the main jail, this case

is unlike Fulminante because in that case, “[t]he Arizona

Supreme Court found a credible threat of physical violence

unless Fulminante confessed.” 499 U.S. at 287. Fulminante’s

finding of involuntariness was premised on the idea that “it

BEATY v. SCHRIRO 15253
was fear of physical violence, absent protection from his

friend (and Government agent) Sarivola, which motivated

Fulminante to confess.” Id. at 288. But as Fulminante also

makes clear, fear in the abstract was not enough; the threat of

physical violence had to be real and imminent to constitute

improper coercion. The Arizona state courts made no finding

here regarding the credibility of threats of violence, and there

is nothing in the record that suggests “credible” threats were

made against Beaty. Moreover, participation in the group cannot be equated with a requirement of confession. Accordingly,

Fulminante cannot control.

IV

Finally, we address Beaty’s extensive pro se filings, which

purport to be: (1) an application to file a second or successive

petition for habeas relief under 28 U.S.C. § 2254 (including

a motion, buried in a footnote, to appoint capital counsel),

filed May 21, 2007, and (2) “Motion for a Procedural Order;

Motion for Reconsideration; and/or Motion for En Banc

Review,” filed July 18, 2007. Although originally filed under

a new case number, such number was later terminated and

these filings were erroneously docketed with the instant

appeal. 

We ordered Beaty’s counsel of record to explain these

voluminous filings. In response, he provided a procedural history of Beaty’s travails in state and district court but failed to

explain the filings. Instead, counsel invited us to “appoint

counsel to brief the issues presented by Beaty in his application.” However, the purported application under 28 U.S.C.

§ 2244(b)(3)(A) fails to conform with Ninth Circuit Rule 22-

3, which governs such applications. In particular, Beaty fails

to comply with Rule 22-3(a)(2), which requires him to “state

as to each claim presented whether it previously has been

raised in any state or federal court and, if so, the name of the

court and the date of the order disposing of such claim(s).”

Many of the claims made by Beaty in his purported applica15254 BEATY v. SCHRIRO
tion have been repeatedly raised and rejected below, yet he

makes no effort to comply with our requirement that he state

each claim’s prior history. 

Consequently, to the extent that Beaty’s May 21 filing purports to be an application under 28 U.S.C. § 2244(b)(3)(A), it

is denied without prejudice to refiling in the proper form. To

the extent that Beaty’s May 21 filing requests appointment of

counsel, it is denied as moot. Since we deny the application,

Beaty’s July 18 motion, which appears to relate to the closing

of the new case number, is also denied as moot.

V

For the foregoing reasons, we hold that Beaty’s inculpatory

statements were voluntary within the meaning of the Fifth

Amendment. The decision of the district court is therefore 

AFFIRMED.

BEATY v. SCHRIRO 15255