Hopper v. Dretke

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opinion should not be published and is not precedent except under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.

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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).

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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.

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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

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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

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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.

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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

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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).

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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.

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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
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
19
Id. at 413.

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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).

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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).

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“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).

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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).

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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).

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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).

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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.

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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.

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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

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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)).

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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.

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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).

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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.

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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.

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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.

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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)).

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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))).

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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.

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