Hopper v. Dretke , 106 F. App'x 221 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 22, 2004
Charles R. Fulbruge III
Clerk
No. 02-11337
GEORGE ANDERSON HOPPER,
Petitioner – Appellant,
VERSUS
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent – Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(00-CV-601)
Before JONES, STEWART, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
In 1992, George Anderson Hopper was convicted of capital
murder and sentenced to death for the murder of Rozanne Gailiunas.
After he exhausted his state remedies, Hopper filed a § 2254
petition for a writ of habeas corpus in federal district court
raising seven grounds for relief. The district court denied
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth 5TH CIR. R. 47.5.4.
-1-
Hopper’s petition in its entirety and refused to grant a
certificate of appealability (“COA”).
Hopper now seeks a COA on three1 broad grounds: (1)
ineffective assistance of counsel arising from a post-indictment
polygraph and custodial interview that resulted in Hopper’s
confession to Rozanne’s murder; (2) denial of his constitutional
rights to counsel and silence during that custodial interview in
violation of Miranda v. Arizona,2 which would render Hopper’s
confession and certain after-acquired corroborating evidence
inadmissible; and, (3) due process and confrontation clause
violations arising from the lead investigator’s surreptitious entry
into a book deal about the case. We grant a COA on Hopper’s
ineffective assistance claim to the extent that the two-part
analysis in Strickland v. Washington3 is applicable. We also grant
COA on Hopper’s Miranda claims, but deny COA as to all other
claims. After a review of the merits, however, we affirm the
1
Hopper’s original brief articulates four “issues” for review.
But the fourth issue is not an independent issue warranting
separate review. Instead, this issue centers on the argument that
the state courts and the district court have unreasonably applied
the relevant legal standards and settled constitutional law in
reviewing Hopper’s claims. Because this is not truly an issue, but
rather a general standard of review for habeas claims, see 28
U.S.C. §2254 (d), this court will not treat Hopper’s fourth “issue”
independently in this opinion. Therefore, the arguments raised in
Hopper’s fourth issue will be addressed only where relevant and
applicable in this opinion.
2
384 U.S. 436, 469-73 (1966).
3
466 U.S. 668 (1984).
-2-
district court’s denial of habeas relief as to the ineffective
assistance and Miranda claims.
BACKGROUND
On October 4, 1983, Rozanne Gailiunas was found unconscious in
the bedroom of her home. She had been brutally assaulted and shot
twice in the head. Rozanne never regained consciousness and died
a few days later. Her murder went unsolved for several years until
a tip to the police suggested that Rozanne’s murder was arranged by
Joy Aylor, the estranged wife of Rozanne’s boyfriend. Police
confirmed that Ms. Aylor paid $5,000 to have Rozanne killed, and
were able to trace the money as it passed through the hands of
several individuals. Each individual had skimmed a little of the
money and passed the remainder along. The last person in this
chain was Hopper, who apparently received $1,500 of the original
$5,000.
The police began looking for Hopper in the summer of 1988 to
discuss Rozanne’s murder. At that time, the police did not know
whether Hopper was Rozanne’s killer. All the police knew then was
that Hopper was the most recent person to receive the money.
Despite an attempt to flee from justice, Hopper was arrested
on December 20, 1988 and arraigned the following day. But counsel
was not appointed and Hopper made no request for counsel at that
arraignment. On December 22, 1988, and despite his lack of
counsel, Hopper contacted Detective McGowan offering to cooperate.
-3-
Hopper admitted that he had received the money to kill Rozanne, and
that he had passed $1,000 of that money on to a drug dealer named
“Chip.” Hopper also gave Detective McGowan a description of Chip
as well as information regarding Chip’s usual haunts.
Hopper was not appointed counsel until December 27, six days
after his arraignment and five days after he first willingly spoke
with Detective McGowan and gave the detective the “Chip story.”
Jan Hemphill, the appointed counsel met with Hopper several times
over the next few weeks as well as with the prosecution. The
prosecution informed Hemphill of its intent to seek the death
penalty for Joy Aylor as well as the shooter. The prosecution also
told Hemphill that it was willing to work with all of the middlemen
in the chain to get those two death penalty convictions. The
record shows that Hemphill repeatedly advised Hopper of the
prosecution’s plans and discussed with him the risks of
cooperation. The record also shows that Hemphill advised Hopper
that her advice was based on the information that Hopper gave her.
On February 21, 1989, Hopper again contacted Detective McGowan
and informed the detective of his intent to cooperate. Hopper also
told Detective McGowan that he had spoken with Hemphill and that
Hemphill had given Hopper permission to contact the police.
Detective McGowan then called the prosecution who verified with
Hemphill that Hopper had her permission to talk with the police.
The prosecution also secured Hemphill’s consent to give Hopper a
-4-
polygraph examination, and a blanket consent to talk to Hopper in
the future without having to contact her first.
The following day, on February 22, 1989, Hopper met with
Detective McGowan. Hopper was read his Miranda rights, and after
waiving those rights, Hopper completed a six-page written statement
detailing and supplementing the story he had previously given to
Detective McGowan that inculpated the drug dealer Chip. After this
interview, Hopper was told that the story would be verified by a
polygraph examination to be scheduled in the upcoming few days.
Hopper was given a polygraph examination on February 27, 1989.
Prior to this examination, he was again read his Miranda rights.
After being told that the polygraph examination indicated falsity,
and after receiving a fresh Miranda recitation, Hopper was
questioned by Detective McGowan. The detective asked Hopper to
tell the his story once again, starting at the beginning. After
Hopper recounted the “Chip story,” Detective McGowan told Hopper
that McGowan believed Hopper was not telling the police the entire
story. Detective McGowan then showed Hopper a picture of Chip and
told Hopper that the police were close to locating Chip. The
detective asked Hopper what would happen if the police questioned
Chip and Chip passed a polygraph. Hopper said that the
investigation would “lead back to me [Hopper]” and asked “Can I go
back and think about it?” The detective responded, “Andy, I want
the truth now.” After a brief pause, Hopper admitted that he
-5-
killed Rozanne Gailiunas. He subsequently gave a factually
detailed confession, which was both audio and videotaped. This
confession, along with corroborating physical evidence, including
the gun used to shoot Rozanne, were admitted into evidence at
Hopper’s trial. Additionally, testimony regarding an independent
confession Hopper made to a jailhouse informant and an admission of
guilt in a letter Hopper wrote to a close friend were admitted into
evidence along with his police confession. The testimony of the
jailhouse informant closely tracked the confession that Hopper gave
to the police. The letter admission of guilt was not detailed, but
in that letter Hopper wrote “I am the one who killed this person.”
At trial, Hopper vigorously challenged the admissibility of
the confession and argued a causation theory to the jury. Hopper’s
counsel admitted that Hopper was at the scene when Rozanne was shot
and implicitly admitted that Hopper shot her. Using the results of
a post-mortem toxicology test showing that Rozanne had a
significant amount of Thorazine, a sedative, in her blood when she
died, Hopper argued that it was the Thorazine that actually killed
her instead of the bullet that entered her brain.4 Hopper’s
theory, supported by an expert witness, was that the Thorazine
exacerbated the brain swelling that Rozanne would have suffered
from the bullet wound and made that brain swelling ultimately
4
Although Rozanne had been shot twice in the head, one of the
bullets lodged in her jawbone without penetrating her skull.
-6-
fatal. The prosecution presented its own expert testimony that
contradicted Hopper’s causation theory.
A jury convicted Hopper of capital murder in 1992 and he was
sentenced to death. After Hopper was convicted, prosecutors became
aware that Detective McGowan had entered into an agreement to work
on a book about the murder of Rozanne Gailiunas. Evidence adduced
in 1994 showed that Detective McGowan first considered the idea
prior to Hopper’s arrest and entered into an oral agreement to
collaborate with a writer in late 1989 or early 1990, long after
Hopper had confessed. However, a written agreement of
collaboration was signed prior to Hopper’s trial.
On direct appeal, the Texas Court of Criminal Appeals upheld
Hopper’s conviction and sentence but did not consider the newly
discovered evidence of Detective McGowan’s book deal. Hopper v.
State, No. 71,477 (Tex. Crim. App. Nov. 5, 1997) (unpublished).
Hopper did not seek a writ of certiorari from the United States
Supreme Court, but instead, Hopper filed a state application for
habeas corpus. The trial judge expanded the record to include the
detective’s book deal evidence, and entered findings of fact as
well as conclusions of law in denying relief. The trial judge’s
findings and conclusions on Hopper’s state habeas application were
adopted by the Texas Court of Criminal Appeals in denying habeas
relief. Ex parte Hopper, No. 23,163-02 (Tex. Crim. App. Mar. 1,
2000)(unpublished). On March 20, 2000, Hopper filed a petition for
-7-
a writ of habeas corpus in federal district court, which the court
denied.
DISCUSSION
Hopper’s § 2254 habeas petition is subject to the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).5
Under AEDPA, Hopper must obtain a COA before he can appeal the
district court’s denial of habeas relief.6 If a COA is not
granted, we lack jurisdiction to rule on the merits of Hopper’s
appeal.7
To obtain a COA, Hopper must make “a substantial showing of
the denial of a constitutional right.”8 Making such a showing
requires Hopper to demonstrate that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.”9
In Miller-El v. Cockrell, the Supreme Court instructed, as it
5
See Penry v. Johnson, 532 U.S. 782, 792 (2001).
6
28 U.S.C. § 2253(c)(1) (2000); Slack v. McDaniel, 529 U.S. 473,
478 (2000).
7
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)(“[U]ntil a COA
has been issued federal courts of appeals lack jurisdiction to rule
on the merits of appeals from habeas petitioners.”).
8
28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336;
Slack, 529 U.S. at 483.
9
Miller-El, 537 U.S. at 336 (quoting Slack, 529 U.S. at 484).
-8-
previously held in Slack v. McDaniel, that we should “limit [our]
examination to a threshold inquiry into the underlying merit of
[the petitioner’s] claims.”10 The Court observed that “a COA
ruling is not the occasion for a ruling on the merit of
11
petitioner’s claim . . .” Instead, our COA determination must be
based on “an overview of the claims in the habeas petition and a
general assessment of their merits.”12 “This threshold inquiry does
not require full consideration of the factual or legal bases
adduced in support of the claims.”13 We do not have jurisdiction
to justify our denial of a COA based on an adjudication of the
actual merits of the claims.14 Accordingly, we cannot deny an
“application for a COA merely because [we believe] the applicant
will not demonstrate an entitlement to relief.”15 “[A] claim can
be debatable even though every jurist of reason might agree, after
the COA has been granted and the case has received full
consideration, that petitioner will not prevail.”16
Even if we grant Hopper’s application for COA, Hopper is not
10
Miller-El, 537 U.S. at 327.
11
Id. at 331.
12
Id. at 336.
13
Id.
14
Id.
15
Id.
16
Id.
-9-
necessarily entitled to habeas relief. “To prevail on a petition
for writ of habeas corpus, a petitioner must demonstrate that the
state court proceeding ‘resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.’”17 A state court’s decision is “contrary to . . . clearly
established Federal law, as determined by the Supreme Court of the
United States . . . if the state court arrives at a conclusion
opposite to that reached by the Court on a question of law or if
the state court decides a case differently than the Court has on a
set of materially indistinguishable facts.”18 A state court’s
decision “involves an unreasonable application of [] clearly
established Federal law, as determined by the Supreme Court of the
United States . . . if the state court identifies the correct
governing legal principle from the Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s
case.”19
In making the “unreasonable application” inquiry, this court
must determine whether the state court’s application of clearly
17
Robertson v. Cockrell, 325 F.3d 243, 247-48 (5th Cir. 2003) (en
banc) (quoting 28 U.S.C. § 2254(d)(1) (2000)).
18
Will. v. Taylor, 529 U.S. 362, 412-13 (2000).
19
Id. at 413.
-10-
established federal law was objectively unreasonable.20 “We have
no authority to grant habeas corpus relief simply because we
conclude, in our independent judgment, that a state supreme court’s
application of [federal law] is erroneous or incorrect.”21 “The
federal habeas scheme leaves primary responsibility with the state
courts for these judgments, and authorizes federal-court
intervention only when a state court decision is objectively
unreasonable.”22
Finally, for Hopper to be entitled to habeas relief based on
a constitutional “trial” error, he must demonstrate not only that
the state court’s decision was contrary to or an unreasonable
application of clearly established federal law, but also that it
was harmful under the standard set forth in Brecht v. Abrahamson.23
“Under Brecht, a federal court may grant habeas relief on account
of constitutional error only if it determines that the
constitutional error had a ‘substantial and injurious effect or
20
Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en banc),
cert. denied, 123 S. Ct. 963 (2003).
21
Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002)(quoting
Neal, 286 F.3d at 236).
22
Woodford v. Visciotti, 537 U.S. 19, 27(2002).
23
507 U.S. 619 (1993). See also Robertson v. Cain, 324 F.3d 297,
304 (5th Cir. 2003).
-11-
influence in determining the jury’s verdict.’”24
(1) Ineffective Assistance of Counsel
Hopper first seeks a COA on his claim that his trial counsel
provided ineffective assistance by failing to be present at, or
negotiate an agreement with prosecutors to limit the scope of, the
post-indictment polygraph examination and interview. In order to
establish his ineffective assistance of counsel claim, Hopper must
show that his counsel’s performance was deficient and that he was
actually prejudiced by the deficient performance.25 Deficient
performance is determined by examining whether the challenged
representation fell below an objective standard of reasonableness.26
“So long as counsel made an adequate investigation, any strategic
decisions made as a result of that investigation fall within the
wide range of objectively reasonable professional assistance.”27
24
Robertson, 324 F.3d at 304 (quoting Brecht, 507 U.S. at 623
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
25
Strickland, 466 U.S. at 693-96. In his reply brief, Hopper
also seeks to raise an ineffective assistance claim based on the
Supreme Court’s decision in United States v. Cronic, 466 U.S. 648,
659 (1984). In the absence of manifest injustice, this court will
not consider arguments raised for the first time in a reply brief.
See Najarro v. First Fed. Sav. & Loan Ass’n, 918 F.2d 513, 516(5th
Cir. 1990)(citing Abbot v. Local Union No. 142, 429 F.2d 786 (5th
Cir. 1970)). A review of the record reveals that manifest
injustice will not result from our deeming Hopper’s Cronic argument
waived. Accordingly, we do not further consider that argument
here.
26
Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir. 1999).
27
Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) (internal
citations and quotation marks omitted).
-12-
“A conscious and informed decision on trial tactics and strategy
cannot be the basis for constitutionally ineffective assistance of
counsel unless it is so ill chosen that it permeates the entire
trial with obvious unfairness.”28 Furthermore, even if Hopper
establishes that Hemphill’s performance was deficient, he must also
establish that “prejudice caused by the deficiency is such that
there is a reasonable probability that the result of the
proceedings would have been different.”29 To do this, Hopper must
show that the prejudice rendered the trial “fundamentally unfair or
unreliable.”30
Because defendants have a right to counsel at all critical
stages of a proceeding,31 reasonable jurists might debate whether
Hemphill’s decision not to attend the polygraph session or limit
the scope of the examination falls outside the wide range of
objectively reasonable professional assistance. Because
confessions are “like no other evidence”32 and highly damaging to
28
United States v. Jones, 287 F.3d 325, 331 (5th Cir.) (quoting
Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)), cert.
denied, 123 S. Ct. 549 (2002).
29
Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir. 1997).
30
Id. (quoting Lockhart v. Fretwell, 506 U.S. 364 (1993)).
31
Styron v. Johnson, 262 F.3d 438, 447 (5th Cir. 2002)(internal
citations omitted).
32
See Arizona v. Fulminante, 499 U.S. 279, 298(1991).
-13-
a criminal defendant,33 reasonable jurists might also debate the
existence of actual prejudice in this case. Therefore, a COA is
warranted on this issue.
Despite our grant of COA, we find sufficient reason in the
record to affirm the district court’s denial of habeas relief.34
In Strickland, the Supreme Court stated that a fair assessment of
counsel’s performance requires a reviewing court to “reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.”35 Moreover,
there is a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”36
We have held that counsel is not constitutionally ineffective
for failing to discover, and make strategic decisions based on,
evidence that a defendant consciously withholds from counsel.37 The
constitution does not require perfect knowledge from counsel, and
we cannot evaluate Hemphill’s conduct under the distorting lens of
33
Id. (internal citation omitted).
34
This is not inconsistent with our decision to grant a COA on
this issue, because COA should be granted even when “every jurist
of reason might agree. . .that petitioner will not prevail.” See
Miller-El, 537 U.S. 322, 338 (emphasis added).
35
Strickland,466 U.S. at 689.
36
Pratt v. Cain, 142 F.3d 226, 231 (5th Cir. 1998)(citing
Williams v. Cain, 125 F.3d 269, 276 (5th Cir. 1997)).
37
Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997); Bryant v.
Scott, 28 F.3d 1411, 1415 (5th Cir. 1994).
-14-
hindsight.38 Hopper knew that the “Chip story” was false, began
cooperating with the police prior to having counsel appointed, and
still sought to talk to police after learning from his counsel that
the prosecution intended to seek the death penalty for the shooter.
Hopper also knew that Hemphill’s acquiescence in his second
decision to cooperate with the police was based on her knowledge of
only the “Chip story.” Yet, Hopper still made the decision to talk
to the police for a second time. While in an ideal world, counsel
would have perfect knowledge and unlimited time in which to
interview clients and formulate trial strategy, that is not what
the constitution requires.39 “We will not find inadequate
representation merely because, with the benefit of hindsight, we
disagree with counsel’s strategic choices."40
The Texas courts relied upon relevant and well-settled federal
precedent and noted that the choices made by Hemphill were
reasonable based upon the information that she had before her, and
she kept Hopper reasonably informed of the consequences of
cooperation with the police. Hopper’s failing of the polygraph
exam and subsequent confession were regrettable from a defense
38
Strickland, 466 U.S. at 691.
39
See Yarborough v. Gentry, __ U.S. ___, 124 S. Ct. 1, 6
(2003)(“[T]he Sixth Amendment guarantees reasonable competence, not
perfect advocacy judged with the benefit of hindsight”)(internal
citations omitted).
40
Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
-15-
perspective but also reasonably unforeseeable under the totality of
circumstances. Therefore, finding no unreasonable application of
the Strickland deficient performance standard, and concluding that
it need not consider the prejudice prong of the Strickland test in
the absence of a constitutionally deficient performance,41 the
district court properly denied habeas relief.
(2) Custodial Denial of Right to Silence and Counsel
Hopper also seeks a COA on his claim that his Miranda rights
were violated because Detective McGowan did not cease questioning
Hopper when he asked “Can I go back and think about it?” during the
post-polygraph interview on February 27, 1989. Hopper claims that
this failure renders the highly detailed and corroborated
confession he made within moments of asking that question
inadmissible. Hopper argues that his question “Can I go back and
think about it?” is both a request to remain silent and a request
for counsel and the admission of his confession at trial therefore
violated his Miranda rights.
Under Miranda v. Arizona,42 a statement made by a person in
custody is inadmissible unless that person was informed that he has
the right to have an attorney present during questioning, the right
to remain silent, and that anything that the person says may be
41
466 U.S. at 697.
42
384 U.S. 436 (1966).
-16-
used against him.43 A person may waive these rights, so long as the
waiver is knowing and voluntary.44 Moreover, police must
scrupulously honor a person’s unambiguous invocation of these
rights,45 and once invoked, the police may not make any further
attempts to elicit statements from that person unless that person
initiates further communication.46 But ambiguous assertions of the
right to counsel47 and the right to silence48 are not sufficient to
trigger the cessation of police questioning. Under Davis v. United
States,49 the test is whether a reasonable police officer would
understand the request to be an invocation of a constitutionally
guaranteed right under the circumstances in which the request is
made.50 In Davis, the Supreme Court held that a suspect ’s
statement, “Maybe I should talk to a lawyer” uttered over an hour
43
Id. at 444-45 (1966).
44
Moran v. Burbine, 475 U.S. 412, 421 (1986).
45
Miranda, 384 U.S. at 473-74.
46
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Michigan v.
Jackson, 475 U.S. 625, 636 (1986).
47
See Davis v. United States, 512 U.S. 452, 458-59 (1994).
48
See Barnes v. Johnson, 160 F.3d 218, 224(5th Cir. 1999)(finding
no invocation of right to silence when viewed in light of the
suspect’s prior statements and the fact that the suspect initiated
discussion with police after hearing and waiving his Miranda
rights).
49
512 U.S. at 458-59.
50
Id.
-17-
and a half into a custodial interrogation when he had previously
waived his Miranda rights was an ambiguous assertion of the right
to counsel.51 Expressly declining to “require law enforcement
officers to cease all questioning” when a suspect makes an
ambiguous or equivocal reference to an attorney,52 the Court held
that once a suspect validly waived his Miranda rights, police
questioning could continue until the suspect “clearly requests an
attorney.”53
Because the application of the Davis test to Hopper’s
statements requires an assessment of not only the words he spoke,
but also a determination of what a reasonable police officer would
have understood those words to mean in the circumstances in which
Hopper spoke them,54 we find that reasonable jurists might debate
whether the district court should have resolved the issue in a
different manner. Therefore, a COA is warranted on Hopper’s
Miranda claims.
Despite our grant of COA on these claims, we find sufficient
reason in the record to affirm the district court’s denial of
habeas relief. Both the district court and the Texas state courts
51
See Davis, 512 U.S. at 458.
52
Id. at 459-460.
53
Id. at 461.
54
512 U.S. at 458.
-18-
considered whether the statements made by Hopper and his decision
to cooperate without the presence of his counsel were voluntary and
whether the question “Can I go back and think about it?” was
sufficient to require the cessation of the post-polygraph interview
under the Supreme Court’s decision in Davis. Hopper does not
articulate a challenge to the voluntariness determinations made by
the Texas state court and the district court in this case. He also
he does not challenge the district and state courts’ use of the
Davis test in determining whether his Miranda rights were violated.
Hopper does, however, contend that the courts unreasonably applied
clearly established federal law when they determined that his
confession was admissible because his question “Can I go back and
think about it?” was too ambiguous to invoke his rights to remain
silent and to counsel. This court disagrees.
In this case, Hopper first contacted Detective McGowan on
December 22, 1988 after he was arraigned. Hopper made this contact
and offered to talk before he had even been appointed counsel and
did, in fact, talk. After Hopper was appointed counsel, Hopper
still sought to cooperate and contacted the detective a second
time. Hopper, knowing that cooperation was only in his best
interest if he was not Rozanne’s killer, met with the detective and
gave the police a second voluntary statement on February 22, 1989.
Despite receiving a Miranda rights recitation on each occasion, the
record shows that Hopper made no request for counsel and never
-19-
elected to sit there and simply remain silent. It was not until
his third meeting with Detective McGowan, on February 27, 1989,
after he: (1) took the polygraph; (2) was told he failed that
polygraph; (3)received another Miranda warning; and (4) agreed to
speak and spoke with Detective McGowan again without his counsel
present, that Hopper asked “Can I go back and think about it?” Yet
this question came not at the beginning of that day’s meeting or at
the initiation of a first custodial interview. Instead it came
after a fourth recitation of the “Chip story” and after Hopper was
confronted with a picture of Chip. When Detective McGowan
responded, “Andy, I want the truth now,” Hopper immediately
confessed to killing Rozanne Gailunas.
On direct appeal, as well as in the state habeas proceedings,
the Texas courts applied the test set forth in Davis v. United
States55 and compared Hopper’s question to statements found to be
ambiguous by Texas and other state courts.56 Based on Davis and the
55
512 U.S. at 459.
56
See Ex Parte Hopper at pgs. 11, 12 (citing Dowhitt v. State,
931 S.W.2d 244 (Tex. Crim. App. 1996)(holding the statements “I
can’t say more than that. I need to rest” not to be an invocation
of the right to silence); State v. Bey, 548 A.2d 887, 892 (N.J.
1988)(holding request to “lie down and think about what happened”
not a clear invocation of the right to silence); Delap v. Dugger,
890 F.2d 285, 291-93 (11th Cir. 1989)(holding a suspect’s questions
about the length of the interview and when he could leave not an
invocation of the right to remain silent); State v. Bailey, 714
S.W.2d 590, 593 (Mo. Ct. App. 1986)(holding a suspect’s request for
“some time to think alone” not an invocation of the right to
silence)).
-20-
comparison, the Texas courts held Hopper’s question was an
ambiguous invocation of his rights to counsel and silence under the
circumstances in which Hopper asked that question. The Texas
courts concluded that under the rule set forth in Davis, the police
would not have reasonably understood that Hopper was invoking his
rights to counsel and silence, and therefore Hopper’s subsequent
confession was admissible at his trial.
While Davis expressly applies to the question of whether a
defendant has invoked his right to counsel, neither the Supreme
Court nor this court has expressly held that Davis applies in cases
where the question is whether a person has invoked his right to
remain silent.57 But this court has twice held that a state court
does not run afoul of clearly established federal law when it
applies Davis in such circumstances.58 Moreover, if the statement
“Maybe I should talk to a lawyer” made in Davis is an ambiguous
request for counsel insufficient to warrant cessation of police
questioning,59 the question “Can I go back and think about it?”
uttered in the specific circumstances of this case is also an
ambiguous query which does not require that the interrogation
57
See Soffar v. Cockrell, 300 F.3d 588, 594 (5th Cir. 2003)(en
banc)(internal citations omitted).
58
See Barnes, 160 F.3d.at 224; Soffar, 300 F3d at 594 n.5.
59
See Davis, 512 U.S. at 461.
-21-
cease.60
In light of our precedents61 and the specific circumstances in
this case, we cannot conclude that the state courts unreasonably
applied clearly established federal law in concluding that Hopper’s
confession was admissible because he failed to clearly invoke
either his Miranda right to counsel or right to silence in order to
stop the police questioning. Therefore, we affirm the district
60
Three of our sister circuits have determined that state courts
do not unreasonably apply clearly established federal law by using
Davis to determine whether a suspect has invoked his right to
silence. See, e.g., James v. Marshall, 322 F.3d 103, 108-09 (1st
Cir. 2003)(finding that a suspect’s negative answer to question “Do
you wish to make a statement at this time” ambiguous under the
circumstances where the suspect then answered “yes” to the
officer’s follow-up question, “Can I talk to you about what
happened tonight?” and finding state court did not err in applying
Davis); Burket v. Angelone, 208 F.3d 172, 200 (4th Cir.
2000)(finding that “I just don’t think I should say anything” is an
equivocal request to remain silent); Caldwell v. Bell, 9 Fed. Appx.
472, 480 (6th Cir. 2001)(finding suspect’s answer “I’d rather not”
when asked if he would talk to the authorities ambiguous under
Davis). Three more have found that Davis directly applies to the
question of whether a suspect has invoked his right to silence .
United States v. Ramirez, 79 F.3d 298, 303 (2d Cir. 1996)(applying
Davis to determine that a suspect’s silence in the face of two
questions was not “even an equivocal invocation of his right to
remain silent” when the suspect answered many others and had
previously waived his Miranda rights); McGraw v. Holland, 257 F.3d
513, 519 (6th Cir. 2001)(finding that while the test in Davis
applies to invocations of the right to silence, the suspect’s
statement “I don’t want to talk about it” was an unambiguous
assertion of her right to silence); Coleman v. Singletary, 30 F.3d
1420,1424 (11th Cir. 1994)(noting that prior 11the Circuit rule
requiring the cessation of all questioning even when a suspect
ambiguously invokes a Miranda right was overruled by Davis).
61
See Barnes, 160 F.3d.at 224; Soffar, 300 F.3d at 594, 595
(discussing the “fairly strict” standards for evaluating claims in
habeas petitions that the rights to silence and/or counsel were
invoked).
-22-
court’s denial of habeas relief with respect to both of Hopper’s
Miranda claims.
(3) The Book Deal
Hopper contends that a COA should be granted on whether his
due process rights under Brady v. Maryland62 as well as his rights
under the Sixth Amendment confrontation clause were violated
because his defense counsel was not informed that Detective McGowan
signed an agreement to write a book about the case prior to trial.
Hopper also contends that the existence of this book deal
constitutes structural error not subject to harmless error review
under Brecht. We deny COA on these claims.
First, Hopper is not entitled to relief under the
confrontation clause. The Sixth Amendment’s confrontation clause
is not so much a requirement for the disclosure of certain types of
evidence as it is a guarantee that a criminal defendant have the
opportunity to physically face the individuals testifying against
him.63 Hence, the confrontation clause is not a guarantee for
effective cross-examination.64 Instead, it is a guarantee of an
opportunity for effective cross-examination.65 Only in instances
62
373 U.S. 83 (1963).
63
See Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987).
64
Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985).
65
Id.
-23-
where cross-examination is limited by a specific statutory or
court-imposed restriction do the protections of the Sixth
Amendment’s confrontation clause come into play.66 In this case,
the non-disclosure of the book deal was not due to the operation of
any Texas state law or any specific trial court’s ruling. Rather,
the non-disclosure was due to Detective McGowan’s decision to
remain silent about the deal and there is no evidence that the
prosecution knew of the detective’s conflict of interest until well
after Hopper’s trial. In light of these facts and the relevant
Supreme Court precedent,67 reasonable jurists could not debate
whether Hopper’s claim based on the confrontation clause should
have been decided differently.
Second, Hopper has not established a Brady violation. In
Brady, the Supreme Court held that an accused’s due process rights
are violated when evidence that is material to either the guilt or
punishment phase of a trial is suppressed.68 Material evidence is
evidence that has a reasonable probability of altering the result
of the trial or sentence.69 The measure of that “reasonable
probability” for Brady claims is when the evidence suppressed, in
66
Fensterer, 474 U.S. at 1920; Ritchie, 480 U.S. at 53-54;
Kentucky v. Stincer, 482 U.S. 730, 738 n. 9 (1987).
67
Fensterer, 474 U.S. at 1920; Ritchie, 480 U.S. at 53-54;
Kentucky v. Stincer, 482 U.S. 730, 738 n. 9 (1987).
68
Brady, 373 U.S. at 87.
69
Bagley, 473 U.S. at 682.
-24-
light of the entire record, undermines confidence in the verdict or
sentence imposed.70 Under Brady, the prosecution is required to
provide the defense any available exculpatory evidence or
impeachment evidence.71
In order to state a claim under Brady, a habeas petitioner
must establish that: (1) the prosecution suppressed evidence; (2)
the evidence was favorable to the accused because it was
exculpatory or impeaching; (3) the evidence was material to either
guilt or punishment.72 Because Brady’s suppression prong
encompasses evidence withheld by the police even if the prosecution
was unaware of its existence,73 Texas conceded at the state habeas
proceeding, as it does here, that the book deal evidence was
suppressed and could have been used to impeach Detective McGowan’s
testimony. The relevant question then becomes whether the book
deal evidence is material.
Both the state habeas court and the district court found that
it was not. Both courts looked at the entirety of the record,
which included testimony regarding Hopper’s confession by a police
officer other than Detective McGowan, a jailhouse confession, and
70
Id.; Kyles v. Whitney, 514 U.S. 419, 433-37 (1995).
71
United States v. Bagley, 473 U.S. 667, 682 & 683-84 (1985).
72
See United States v. Ellender, 947 F.2d 748, 756 (5th Cir.
1991)(internal citations omitted).
73
Kyles, 514 U.S. at 438.
-25-
a letter admission of guilt, as well as strong physical
corroborating evidence. The courts also noted that the timing of
Detective McGowan’s book deal, which was not formalized until after
Hopper’s arrest and confession, did not support an inference of
improper purpose in the detective’s investigation or trial
testimony. Furthermore, both courts examined the nature and timing
of the compensation received by Detective McGowan as a result of
the book deal and concluded that none of the compensation received
was tied to or affected the outcome of Hopper’s trial.
This court has held that a materiality determination regarding
withheld impeachment evidence requires a court to look to whether
the testimony of the witness who would have been impeached was
corroborated by other evidence.74 As the state habeas court and the
district court duly noted, the vast majority of Detective McGowan’s
testimony was corroborated. In addition to Hopper’s police
confession, there was also a jailhouse confession and a letter
admitting his guilt. Furthermore, not only was there physical
evidence corroborating Hopper’s confession, such as the gun, Hopper
did not contest at the guilt phase of the trial that he shot the
victim. Instead, he argued that the shots fired were not the cause
of her death. Hopper has alleged no new facts, such as evidence
that Detective McGowan planted evidence or influenced the content
74
Kopycinski v. Scott, 64 F.3d 223, 226 (5th Cir. 1995)(citing
United States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir. 1989)).
-26-
of Hopper’s confession, that undermine the confidence of Hopper’s
guilty verdict. And Hopper articulates no argument that the
existence of the book deal had any effect on his death sentence.
Therefore, under these case facts, reasonable jurists could not
debate whether the evidence of Detective McGowan’s book deal was
sufficiently material to make out a Brady claim or that the
district court should have resolved this issue in a different
manner. Accordingly, we deny Hopper’s request for a COA on this
claim.
Finally, Hopper argues that the existence of the book deal
constitutes structural error warranting immediate reversal of his
conviction. As the district court noted, the cases Hopper used to
support this claim are factually distinguishable and do not stand
for the proposition that the existence of a media deal is
structural error per se. In fact, the Supreme Court has only
identified a precious few circumstances that qualify as structural
error.75 None of these rare circumstances are present in this case.
Furthermore, the Supreme Court has also noted that most trial
errors of constitutional magnitude should “be quantitatively
assessed in the context of other evidence presented in order to
75
See Fulminante, 499 U.S. at 309 n.8(quoting Chapman v.
California, 386 U.S. 18, 24 n.8 (citing Payne v. Arkansas, 356 U.S.
560 (1956) (coerced confession); Gideon v. Wainright, 372 U.S. 335
(1963), (right to counsel); Tumey v. Ohio, 273 U.S. 510 (1927)
(impartial judge))).
-27-
determine whether its admission was harmless beyond a reasonable
doubt.”76 And in denying Hopper’s request for COA on this issue
under Brady we have found that Hopper has not made a substantial
showing that he was denied any constitutional right. Thus,
reasonable jurists could not debate whether the district court’s
disposition of this claim should have been resolved differently and
the request for COA is concomitantly denied.
CONCLUSION
With respect to Hopper’s claims that Hemphill provided
ineffective assistance of counsel under Strickland v. Washington
and that his Miranda rights were violated when his confession was
admitted at trial, we GRANT his application for COA. But we
conclude that the district court did not err in denying habeas
relief on these claims, and we therefore AFFIRM the district
court’s denial of relief. We also DENY Hopper’s application for
COA on his other claims. Therefore, we lack jurisdiction to review
the district court’s denial of habeas relief as to these claims.
COA GRANTED IN PART; COA DENIED IN PART; AFFIRMED.
76
See id. at 307-08.
-28-