APPEAL FROM THE DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. No. 79-00360)
Before Seitz, Chief Judge, and Aldisert and Rosenn, Circuit Judges.
Leroy Brown appeals from the district court's order, 510 F. Supp. 171, denying his petition for a writ of habeas corpus. This court has jurisdiction under 28 U.S.C. § 1291 (1976).
Leroy Brown was arrested in Washington, D.C. on March 23, 1974. The arresting officer, who knew only that Brown was wanted in Philadelphia on murder charges, immediately read Brown the Miranda warnings. Brown was transported to a police station where he was handcuffed to a desk and again given Miranda warnings. Brown said that he did not want to make a statement without an attorney, and the officers ceased questioning.
The Washington police then contacted Philadelphia authorities and learned that Brown had been charged with committing four execution-style murders in Philadelphia a month before. One officer told Brown about this call to Philadelphia and informed him of the details of the charges lodged against him. Brown was again read the Miranda warnings, and after acknowledging that he understood them, said he desired to make a statement. Shortly thereafter, Brown made two lengthy inculpatory statements.
Brown filed a pretrial petition to suppress these statements in the Philadelphia Court of Common Pleas on the ground that he lacked the necessary intellect and sanity to have waived his Miranda rights and that he had made the statements "against his will and involuntarily because of coercive tactics of the police." The trial court denied his suppression motion, the statements were admitted, and Brown was convicted of four counts of first degree murder and one count of conspiracy.
Brown appealed his conviction to the Pennsylvania Supreme Court, alleging, inter alia : "It was Error not to suppress appellant's statements where appellant's mental condition at the time of their making was that of a chronic paranoid schizophrenic with an IQ within the mild defective range and where the circumstances rendered appellant's statements involuntary." Brown did not argue in this brief that the resumption of police questioning after he had invoked his right to counsel was improper.
The Pennsylvania Supreme Court affirmed Brown's conviction. Commonwealth v. Brown, 482 Pa. 256, 393 A.2d 650 (1978) (per curiam). The majority held that all of Brown's challenges to his conviction were "without merit", including his allegation "(t)hat the trial court erred in not suppressing two allegedly involuntary statements which appellant made following his arrest." 482 Pa. at 258, 393 A.2d at 651. Three justices dissented on the ground that the resumption of questioning after Brown's assertion of his right to counsel was constitutionally impermissible. See Commonwealth v. Mercier, 451 Pa. 211, 216, 302 A.2d 337, 340 (1973) ("For a waiver to be effective, the reversal of the defendant's position must have been initiated by him.").
Brown then filed the instant petition for habeas corpus in federal district court, alleging that: 1) "In the totality of the circumstances, the statements of the relator were not the product of a rational mind and a free will" ; and 2) "The confession was obtained in violation of the safeguards mandated by Miranda and was, therefore, inadmissible." After finding that Brown had exhausted his state remedies as required by 28 U.S.C. § 2254 (1976), the district court rejected these challenges to the admission of his statements. The court held that Brown had effectively waived his Miranda rights and concluded that Brown's statements had been voluntarily given. After the district court issued its opinion, the United States Supreme Court decided Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), in which it considered the issue of waiver after an accused has asserted his fifth amendment rights.
On this appeal, Brown raises only one issue: he alleges that his waiver of his Miranda rights was invalid because the police improperly resumed questioning after he had invoked his right to counsel. See Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981); Commonwealth v. Mercier, 451 Pa. 211, 302 A.2d 337 (1973). The government contends that since Brown did not raise this issue in the state court, his petition must be dismissed for failure to exhaust state remedies.*fn1
The statutory exhaustion requirement provides that a federal court shall not grant a state prisoner's petition for habeas corpus "unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254 (1976). The requirement is not jurisdictional, but is rooted in the policy of federal-state comity. See, e.g. United States ex rel. Speaks v. Brierley, 417 F.2d 597, 600 (3d Cir. 1969), cert. denied, 397 U.S. 1051, 90 S. Ct. 1388, 25 L. Ed. 2d 665 (1970). It represents "an accommodation of our federal system designed to give the State the initial "opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." ...