opinion: SHEA v. LOUISIANA
  No. 82-5920.
  Argued November 7, 1984
  Decided February 20, 1985
  Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. White, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist and O’Connor, JJ., joined, post, p. 61. Rehnquist, J., filed a dissenting opinion, post, p. 66.
  Frances Baker Jack, by appointment of the Court, '467 U. S. 1238, argued the cause and filed a brief for petitioner.
  Paul J. Carmouche argued the cause for respondent. With him on the briefs was John A. Broadwell.
  Justice Blackmun
  delivered the opinion of the Court.
  In Edwards v. Arizona, 451 U. S. 477 (1981), this Court ruled that a criminal defendant’s rights under the Fifth and Fourteenth Amendments were violated by the use of his confession obtained by police-instigated interrogation — without counsel present — after he requested an attorney. This case presents the issue whether that ruling is applicable to a case pending on direct appeal in a state court at the time Edwards was decided.
  I
  There is no dispute as to the facts. Petitioner Kevin Michael Shea was charged in Louisiana with two counts of armed robbery.. He was arrested on July 2, 1979, and was taken to the police station at Shreveport. There he was turned over to Detectives Smith and Snell for questioning. His so-called Miranda rights, see Miranda v. Arizona, 384 U. S. 436 (1966), were read to him, and he signed a standard Miranda card. He said, however, that he did not wish to make any statement until he saw a lawyer. The interview thereupon was terminated.
  The following afternoon, July 3, before petitioner had been in communication with any lawyer, Detective Snell returned. He informed petitioner that he was to be transferred from the city jail to the parish jail. Without inquiring of petitioner whether he had spoken with an attorney or whether he was indigent, and without any indication from petitioner that he now was willing to be interrogated, Snell asked if he wanted to talk about the case. Again, Miranda rights were read to petitioner and again he signed a Miranda card. He then orally confessed that he had committed the two robberies.
  The charges against petitioner came on for trial in due course in the State District Court for Caddo Parish. At this point, the two counts were severed. Prior to his trial before a jury on the first count, petitioner formally moved to suppress the confession of July 3. App. 2. At the trial, which took place in 1980, the prosecution offered the confession in evidence. The defense objected, but the objection was overruled and the confession was admitted. Petitioner was convicted. He filed a like suppression motion with respect to the second charge. Id., at 6. When this was denied, he withdrew his original plea and entered a plea of guilty, with a reservation under state law, see State v. Crosby, 338 So. 2d 584, 588 (La. 1976), of his right to appeal the denial of the motion to suppress. App. 7-8.
  Ón his appeal to the Supreme Court of Louisiana, petitioner raised the issue of the trial court’s error, in violation of Miranda, in admitting the confession. In its opinion, the Louisiana tribunal cited this Court’s decision in Edwards, which had come down in the meantime but subsequent to petitioner’s trial and convictions. The Louisiana court acknowledged the presence of an Edwards violation. It stated:
  “In the present case it is undisputed that the police did initiate such an inquiry on July 3, after having been clearly informed by the defendant on the previous evening that he would not make any statements without counsel. Consequently, there was a violation of the additional standard governing police interrogation of a suspect imposed by Edwards v. Arizona . . . .” 421 So. 2d 200, 203 (1982).
  The court, however, went on to hold that Edwards was not to be applied in petitioner’s case:
  “As this [error] occurred before the decision in Edwards was rendered and we are convinced the United States Supreme Court will pronounce that decision is not retroactive, we so hold in this case.” 421 So. 2d, at 204.
  Petitioner successfully obtained a rehearing on the ret-roactivity issue. On rehearing, although the Louisiana Supreme Court again acknowledged, id., at 210, that petitioner’s confession, under Edwards, was not admissible, that court adhered, over two dissents, to its position that Edwards was not to be given retroactive effect. It stated that that decision was a “clear break with the past,” was a new ruling, and was not retroactive. 421 So. 2d, at 210.
  Because of the importance of the issue and because of conflicting decisions elsewhere, we granted certiorari. 466 U. S. 957 (1984).
  II
  Edwards, the case at the center of the present controversy, involved facts startlingly similar to those of the present case. Police officers informed Edwards of his Miranda rights and questioned him until he said he wanted an attorney. At that point questioning ceased. The next day, however, other officers visited Edwards, stated they wanted to talk to him, informed him of his Miranda rights, and obtained an oral confession. This Court was positive and clear in its ruling:
  “[Although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, . . . the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, 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” (footnote omitted). 451 U. S., at 484-485.
  See also Rhode Island v. Innis, 446 U. S. 291, 298 (1980); Fare v. Michael C., 442 U. S. 707, 719 (1979); Michigan v. Mosley, 423 U. S. 96, 104, n. 10 (1975), and id., at 109-111 (opinion concurring in result); Miranda v. Arizona, 384 U. S., at 444-445, 474.
  The legal principle, thus, is established and is uncontested here. The only question before us in this case is whether that ruling applies retroactively with respect to petitioner’s convictions when the issue was raised and his case was pending and undecided on direct appeal in the state system at the time Edwards was decided.
  HH h-H I — I
  Two of this Court’s recent cases bear importantly upon the issue. The first is United States v. Johnson, 457 U. S. 537 (1982). In that case, we held that a decision of this Court concerning Fourth Amendment rights was to be applied retroactively to all convictions that were not yet final at the time the decision was rendered, except in those situations that would be clearly controlled by existing retroactivity precedents to the contrary. . Specifically, the Court held that Payton v. New York, 445 U. S. 573 (1980), was to be applied retroactively to Johnson’s case.
  The Court in Johnson found persuasive Justice Harlan’s earlier reasoning that application of a new rule of law to cases pending on direct review is necessary in order for the Court to avoid being in the position of a super-legislature, selecting one of several cases before it to use to announce the new rule and then letting all other similarly situated persons be passed by unaffected and unprotected by the new rule. See Desist v. United States, 394 U. S. 244, 256 (1969) (dissenting opinion); Mackey v. United States, 401 U. S. 667, 675 (1971) (separate opinion). The Court noted that, at a minimum, “‘all “new” rules of constitutional law must ... be applied to all those cases which are still subject to direct review by this Court at the time the “new” decision is handed down.’” United States v. Johnson, 457 U. S., at 548, quoting from the dissent in Desist v. United States, 394 U. S., at 258. In Johnson the Court, “[t]o the extent necessáry to decide today’s case, . . . embrace[d] Justice Harlan’s views in Desist and Mackey.” 457 U. S., at 562. It thus determined that unless the rule is so clearly a break with the past that prior precedents mandate nonretroactivity, a new Fourth Amendment rule is to be applied to cases pending on direct review when the rule was adopted.
  In considering the retroactivity of Payton, the Court then concluded that the question was to be resolved fairly by applying the Payton ruling to all cases pending on direct review when Payton was decided. So to do (a) would provide a principle of decisionmaking consonant with the Court’s original understanding in Linkletter v. Walker, 381 U. S. 618 (1965), and Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966), (b) would comport with this Court’s judicial responsibility to do justice to each litigant on the merits of his own case, and (c) would further the goal of treating similarly situated defendants similarly.
  The second case is Solem v. Stumes, 465 U. S. 638 (1984). It, too, clearly involved an obvious Edwards violation that took place in 1973, more than seven years before Edwards. After Stumes’ state-court conviction had been finally affirmed by the Supreme Court of South Dakota, he sought federal habeas relief. His petition for a writ, however, was denied by the Federal District Court. While Stumes’ appeal was pending in the Court of Appeals, Edwards was decided here. The Court of Appeals then ruled that, under Edwards, the police had acted unconstitutionally. This Court, by a divided vote, reversed, holding that Edwards was not to be applied retroactively in the Stumes situation. Justice Powell concurred in the judgment, 465 U. S., at 651, for he would not impose upon the State the costs that accrue by retroactive application of a new rule of constitutional law on habeas corpus; those costs, in his view, “generally far outweigh the benefits of this application.” Id., at 654.
  The primary difference between Johnson, on the one hand, and Stumes, on the other, is the difference between a pending and undecided direct review of a judgment of conviction and a federal collateral attack upon a state conviction which has become final. We must acknowledge, of course, that Johnson does not directly control the disposition of the present case. In Johnson, the Court specifically declined to address the implications of its holding for a case in a constitutional area other than the Fourth Amendment, or for a case in which a Fourth Amendment issue is raised on collateral attack. 457 U. S., at 562. We now conclude, however, that there is no reason to reach in this case a result that is different from the one reached in Johnson. See Mack v. Oklahoma, 459 U. S. 900 (1982). There is nothing about a Fourth Amendment rule that suggests that in this context it should be given greater retroactive effect than a Fifth Amendment rule. Indeed, a Fifth Amendment violation may be more likely to affect the truth-finding process than a Fourth Amendment violation. And Justice Harlan’s reasoning — that principled decisionmaking and fairness to similarly situated petitioners require application of a new rule to all cases pending on direct review — is applicable with equal force to the situation presently before us. We hold that our analysis in Johnson is relevant for petitioner’s direct-review Fifth Amendment claim under Edwards. He is entitled to the benefit of the ruling in that case.
  > I — I
  Other arguments that have been made m support of the judgment below are not persuasive. First, it is said that drawing a distinction between a case pending on direct review and a case on collateral attack produces inequities and injustices that are not any different from those that Johnson purported to cure. The argument is that the litigant whose Edwards claim will not be considered because it is presented on collateral review will be just as unfairly treated as the direct-review litigant whose claim would be bypassed were Edwards not the law. The distinction, however, properly rests on considerations of finality in the judicial process. The one litigant already has taken his case through the primary system. The other has not. For the latter, the curtain of finality has not been drawn. Somewhere, the closing must come. Justice Powell stressed this in his opinion concurring in the judgment in Solem v. Stumes, 465 U. S., at 653-654. He said specifically: “[I]t is particularly difficult in such cases to justify imposing upon the State the costs of collateral review. These are not insubstantial.” Id., at 654.
  Next, it is said that the application of Edwards to cases pending on direct review will result in the nullification of many convictions and will relegate prosecutors to the difficult position of having to retry cases concerning events that took place years ago. We think this concern is overstated. We are given no empirical evidence in its support, and Louisiana states that any such evidence is unavailable. Brief for Respondent 11. We note, furthermore, that several courts have applied Edwards to cases pending on direct review without expressing concern about lapse of time or retro-activity and without creating any apparent administrative difficulty. See n. 2, supra. And if a case is unduly slow in winding its way through a State’s judicial system, that could be as much the State’s fault as the defendant’s, and should not serve to penalize the defendant.
  In addition, it is said that in every case, Edwards alone excepted, reliance on existing law justifies the nonapplication of Edwards. But, as we have pointed out, there is no difference between the petitioner in Edwards and the petitioner in the present case. If the Edwards principle is not to be applied retroactively, the only way to dispense equal justice to Edwards and to Shea would be a rule that confined the Edwards principle to prospective application unavailable even to Edwards himself.
  Finally, it is said that the Edwards rule is only prophylactic in- character, and is not one designed to enhance accuracy in criminal jurisprudence. This argument, of course, is taken from Michigan v. Payne, 412 U. S. 47 (1973), where the retroactivity of North Carolina v. Pearce, 395 U. S. 711 (1969), was under consideration. The argument, we feel, is fully answered by the decision in United States v. Johnson, and by what we have said above in this opinion.
  The judgment of the Supreme Court of Louisiana is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
  It is so ordered.
  We thus are not confronted in this case with any issue as to whether petitioner had invoked his right to counsel in the first instance, see Smith v. Illinois, 469 U. S. 91 (1984), or as to whether, having done so, it was he who had initiated further conversation and interrogation, see Oregon v. Bradshaw, 462 U. S. 1039 (1983), and the several opinions therein. A violation of the Edwards principle, all parties here agree, took place in the instant case.
  See, e. g., State v. Brown, 317 N. W. 2d 714, 715 (Minn. 1982); State v. Taylor, 56 Ore. App. 703, 708, 643 P. 2d 379, 382 (1982). Other courts, without addressing the retroactivity issue, have applied Edwards to cases pending on direct appeal when the decision was announced. See, e. g., State v. Platt, 130 Ariz. 570, 575-576, 637 P. 2d 1073, 1079 (App. 1981); People v. Cerezo, 635 P. 2d 197, 199-201 (Colo. 1981); State v. Brezee, 66 Haw. 162, 657 P. 2d 1044 (1983); State v. Carty, 231 Kan. 282, 644 P. 2d 407 (1982); People v. Paintman, 412 Mich. 518, 315 N. W. 2d 418, cert. denied, 456 U. S. 995 (1982).
  Had petitioner’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. See Blakney v. Montana, 451 U. S. 1013 (1981); White v. Finkbeiner, 451 U. S. 1013 (1981) (on federal habeas); Leuschner v. Maryland, 451 U. S. 1014 (1981); Monroe v. Idaho, 451 U. S. 1014 (1981); Wantland v. Maryland, 451 U. S. 1014 (1981); James v. Illinois, 451 U. S. 1014 (1981). This Court’s actions in 1981 in these cases indicated no conclusion on its part that Edwards was inapplicable to other cases pending on direct review. In all six of these cases, the questioning, of course, predated Edwards. In Monroe and Blakney, on remand, Edwards was applied without discussion of retro-activity. See State v. Monroe, 103 Idaho 129, 645 P. 2d 363 (1982); State v. Blakney, 197 Mont. 131, 641 P. 2d 1045 (1982).
  While not conclusive, it is of interest to note that this Court, on at least two occasions in addition to Solem v. Stumes, 465 U. S. 638 (1984), discussed infra in the text, already has considered Edwards in a retroactive setting, that is, in its application to custodial inquiries that took place before Edwards was decided here. See Wyrick v. Fields, 459 U. S. 42 (1982) (inquiry in 1974); Oregon v. Bradshaw, 462 U. S. 1039 (1983) (inquiry in 1980). Bradshaw, like the instant case, was on direct review. This Court considered and decided the Edwards issue in each of those cases with no comment or expressed concern about retroactivity. Our examination of the appendices and briefs in those two cases reveals that the retro-activity issue was not raised. Its underlying presence, however, was not sufficiently disturbing to cause the Court to mention it sua sponte.
  In Solem v. Sturnes, the Court observed:
  “At a minimum, nonretroactivity means that a decision is not to be applied in collateral review of final convictions. For purposes of this case, that is all we need decide about Edwards." 465 U. S., at 650.
  Of course, under the rationale of our decision today, the question is whether the conviction became final before Edwards was decided. As we hold, if a case was pending on direct review at the time Edwards was decided, the appellate court must give retroactive effect to Edwards, subject, of course, to established principles of waiver, harmless error, and the like. If it does not, then a court conducting collateral review of such a conviction should rectify the error and apply Edwards retroactively. This is consistent with Justice Harlan’s view that cases on collateral review ordinarily should be considered in fight of the law as it stood when the conviction became final. See Mackey v. United States, 401 U.S. 667, 689 (1971) (Harlan, J., concurring in judgment). See also Hankerson v. North Carolina, 432 U.S. 233, 248 (1977) (POWELL, J., concurring in judgment). Thus, the result of our decisions concerning the retroactive applicability of the ruling in Edwards v. Arizona is fully congruent with both aspects of the approach to retroactivity propounded by Justice Harlan in his concurrence in Mackey.
  The Court in Johnson also declined to address situations clearly controlled by existing retroactivity precedents, such as where the new rule of law is so clear a break with the past that it has been considered nonretroactive almost automatically. Whatever the merits of a different retroactivity rule for cases of that kind may be, we have no need to be concerned with the question here. In Solem v. Sismes-the Court recognized that Edwards was “not the sort of ‘clear break’ that is automatically nonretroactive.” 465 U. S., at 647.
choices: involuntary confession habeas corpus plea bargaining: the constitutionality of and/or the circumstances of its exercise retroactivity (of newly announced or newly enacted constitutional or statutory rights) search and seizure (other than as pertains to vehicles or Crime Control Act) search and seizure, vehicles search and seizure, Crime Control Act contempt of court or congress self-incrimination (other than as pertains to Miranda or immunity from prosecution) Miranda warnings self-incrimination, immunity from prosecution right to counsel (cf. indigents appointment of counsel or inadequate representation) cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty) cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts) line-up discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations) double jeopardy ex post facto (state) extra-legal jury influences: miscellaneous extra-legal jury influences: prejudicial statements or evidence extra-legal jury influences: contact with jurors outside courtroom extra-legal jury influences: jury instructions (not necessarily in criminal cases) extra-legal jury influences: voir dire (not necessarily a criminal case) extra-legal jury influences: prison garb or appearance extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment) extra-legal jury influences: pretrial publicity confrontation (right to confront accuser, call and cross-examine witnesses) subconstitutional fair procedure: confession of error subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy) subconstitutional fair procedure: entrapment subconstitutional fair procedure: exhaustion of remedies subconstitutional fair procedure: fugitive from justice subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case) subconstitutional fair procedure: stay of execution subconstitutional fair procedure: timeliness subconstitutional fair procedure: miscellaneous Federal Rules of Criminal Procedure statutory construction of criminal laws: assault statutory construction of criminal laws: bank robbery statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy) statutory construction of criminal laws: escape from custody statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury) statutory construction of criminal laws: financial (other than in fraud or internal revenue) statutory construction of criminal laws: firearms statutory construction of criminal laws: fraud statutory construction of criminal laws: gambling statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951 statutory construction of criminal laws: immigration (cf. immigration and naturalization) statutory construction of criminal laws: internal revenue (cf. Federal Taxation) statutory construction of criminal laws: Mann Act and related statutes statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol statutory construction of criminal laws: obstruction of justice statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements) statutory construction of criminal laws: Travel Act, 18 USC 1952 statutory construction of criminal laws: war crimes statutory construction of criminal laws: sentencing guidelines statutory construction of criminal laws: miscellaneous jury trial (right to, as distinct from extra-legal jury influences) speedy trial miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)