*

Honorable Maurice B. Cohill, Jr., Senior U.S. District

Judge for the Western District of Pennsylvania, sitting by

designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-2519.

Theodore Augustus BASSETT, Jr., Petitioner-Appellant,

v.

Harry K. SINGLETARY, Jr., Secretary, Florida Department of

Corrections, Respondent-Appellee.

Feb. 20, 1997.

Appeal from the United States District Court for the Middle

District of Florida. (No. 92-215-Civ-Orl-18), G. Kendall Sharp,

Jr., Judge.

Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and COHILL*

,

Senior District Judge.

PER CURIAM:

This case is an appeal by Theodore Augustus Bassett Jr.

("Bassett") from the denial by the district court of his Petition

for Writ of Habeas Corpus. The case had been referred to a United

States Magistrate Judge who recommended that the Writ be granted,

but the district court rejected that recommendation and denied the

Writ.

Bassett was convicted of two counts of first degree murder on

January 17, 1980, and sentenced to death on both counts. The

convictions and sentences were affirmed by the Florida Supreme

Court. Bassett v. State, 449 So.2d 803 (Fla.1984). The Florida

Supreme Court subsequently vacated the death sentences and ordered

a new penalty phase. Bassett v. State, 541 So.2d 596 (Fla.1989).

He was sentenced to consecutive life sentences on November 17,
 1

This factual account is based on the opinion of the Supreme

Court of Florida in affirming the denial of Bassett's Motion to

Suppress his confession. The Supreme Court accepted the factual

findings of the trial court. Bassett, 449 So.2d at 804-05. A

trial court's factual findings are entitled to a presumption of

correctness under 28 U.S.C. § 2254(d). 

1989.

The basis for the present petition is the denial of Bassett's

Motion to Suppress his confession at his original trial.

During the investigation of the two murders, the court

appointed private counsel to represent Bassett because his

co-defendant was already represented by the public defender's

office. At the time, Bassett was incarcerated on an unrelated

felony charge. At the conclusion of the investigation, Bassett's

counsel moved to withdraw since he would be leaving the area. The

court granted the motion but did not immediately appoint new

counsel. Bassett was not informed of his counsel's withdrawal.

The investigating officers approached Bassett in jail after

his counsel had withdrawn. They advised Bassett of his Miranda

rights, and he then asked to speak with his attorney. The officers

told him his attorney had withdrawn, but they stated that they

would contact another attorney for him. When the officers stood up

to leave, Bassett said, "[w]ell, what do you want anyway?" The

officers then told Bassett that they had discovered the bodies of

the two victims and that Bassett's co-defendant had implicated him.

This statement led to a two day confession. The officers

continually gave Bassett Miranda warnings and obtained a signed

waiver of rights form each day.1

 Bassett asserts that the use of his confession at trial
violated his rights under the Fifth, Sixth and Fourteenth

Amendments. We look to the United States Supreme Court for

guidance in deciding this issue.

In Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880,

1884-85, 68 L.Ed.2d 378 (1981), the United States Supreme Court

held that, once an accused has invoked his right to counsel, a

valid waiver of that right cannot be established by showing only

that he responded to a later police initiated interrogation after

again being advised of his rights. An accused may not be subjected

to further interrogation until counsel has been made available to

him, unless the accused himself has initiated further

communications with the police. Essentially, the Court held that

a waiver of the right to counsel must not only be voluntary but

must constitute a knowing and intelligent relinquishment of a known

right or privilege. The Court stated that "[h]ad Edwards initiated

the meeting [with police officers after having invoked his right to

counsel], nothing in the Fifth and Fourteenth Amendments would

prohibit the police from merely listening to his voluntary

statements and using them against him at the trial." 451 U.S. at

485, 101 S.Ct. at 1885.

The situation we have here falls somewhat short of the

scenario described by the Court in Edwards, where the police

initiated the interrogation and the defendant made the

incriminating statement. Here, the police initiated an

interrogation of Bassett, but then started to leave when he chose

to exercise his right to counsel. As the police began to leave,

Bassett initiated further conversation by inquiring "well, what do
you want, anyway?" Thus, the police appropriately terminated their

interrogation when Bassett invoked his right to counsel. Bassett

himself initiated further conversation by his inquiry.

 In Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112

L.Ed.2d 489 (1990), the Court refined Edwards. There, the Court

held that in a custodial interrogation where the accused requests

counsel, interrogation must cease, and the police may not reinstate

interrogation without counsel being present. If Minnick applied to

this case, it would cast doubt on the reopening of the

interrogation without the presence of counsel. The district court,

however, in rejecting the recommendation of the magistrate judge,

held that Minnick announced a new rule of law and could not be

applied to this case on collateral review. Thus, we must decide as

a threshold issue whether the Minnick decision, which was rendered

after Bassett's conviction, applies here.

 To address that issue, we consider the Court's holding in

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334

(1989). There, the Court set out the criteria for determining

whether a decision could apply retroactively, or whether it was a

"new rule" with only prospective applicability. Under Teague, a

new rule of constitutional law may not be applied on collateral

review. 489 U.S. at 310, 109 S.Ct. at 1075. In other words, only

a rule that is "not new" may be applied retroactively to a

conviction that was final when the rule became law. This "new

rule" principle "validates reasonable, good-faith interpretations

of existing precedent made by state courts even though they are

shown to be contrary to later decisions." Butler v. McKellar, 494
U.S. 407, 414, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990).

Teague provides two exceptions:

(1) if the effect of the new rule is to remove a category

of conduct from the reach of the criminal law or to remove a

class of defendants outside the scope of a particular

punishment; and (2) if the new rule requires procedures that

are implicit to the concept of ordered liberty and "enhance

the accuracy of the fact finding process at trial in such a

way that without them the likelihood of an accurate conviction

is seriously diminished.'

489 U.S. at 311, 109 S.Ct. at 1077; See also Butler, 494 U.S. at

415-416, 110 S.Ct. at 1217-1218. Only if a case falls into one of

these two exceptions may a new rule be applied retroactively.

 A rule is new if it imposes a new obligation on the

government, or if it breaks new ground and was not compelled by

existing precedent. Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct.

2934, 2944, 106 L.Ed.2d 256 (1989). Put differently, "a case

announces a new rule if the result was not dictated by precedent

existing at the time the defendant's conviction became final." Id.

(quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070).

 In determining whether or not a rule is new, the Supreme

Court focuses on the underlying rationale of the writ. "The

relevant frame of reference ... is not the purpose of the new rule

whose benefit the [defendant] seeks, but instead the purposes for

which the writ of habeas corpus is made available." Teague, 489

U.S. at 306, 109 S.Ct. at 1073 (quoting Mackey v. United States,

401 U.S. 667, 682, 91 S.Ct. 1171, 1175, 28 L.Ed.2d 388 (1971)). A

rule is not new (and thus may be applied retroactively) only if the

underlying rationale of the rule advances the purposes of the writ.

This purpose is to assure that a defendant in a criminal trial was

afforded all constitutional guarantees that were in effect when the
conviction became final, and not to guarantee the protection of

rights that were later announced. Butler v. McKellar, 494 U.S. at

413, 110 S.Ct. at 1216-17 (quoting Teague, 489 U.S. at 306, 109

S.Ct. at 1073). The rationale here is finality: "Application of

constitutional rules not in existence at the time a conviction

became final seriously undermines the principle of finality which

is essential to the operation of our criminal justice system."

Teague, 489 U.S. at 309, 109 S.Ct. at 1074.

The Appellee cites Greenawalt v. Ricketts, 943 F.2d 1020 (9th

Cir.1991), which holds Minnick to be a new rule of law. We agree.

Also instructive is Arizona v. Roberson, a case in which the Court

subsequently held that an interpretation of Edwards stated a new

rule. 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). In

Roberson, the Supreme Court held that, where a suspect has invoked

his right to counsel and conferred with counsel, Edwards bars

police-initiated interrogation about a separate crime. 486 U.S. at

682-83, 108 S.Ct. at 2098-99. The facts here show that, while

Bassett was incarcerated for a different crime, the police

initiated questioning regarding their murder investigation. After

he had already requested an attorney, and the police began to

leave, Bassett asked the question which led to further

interrogation during which he confessed.

In Butler, the Supreme Court held that Roberson stated a new

rule that was not a logical extension of Edwards. 494 U.S. at 416,

110 S.Ct. at 1218. The Court stated that its holding in Roberson

placed added restrictions on the ability of the police to conduct

investigations. Id. The Court's analysis in Butler applies
equally to the facts of Minnick.

We hold that Minnick enunciates a new rule and is not

retroactive. Bassett's conviction became final before the Minnick

opinion was handed down in 1990. Therefore, it does not affect our

analysis in this case. We find that, under the rule announced in

the Edwards case, Bassett's rights were not violated.

Consequently, we will affirm the district court.

AFFIRMED.