United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 11, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 01-11287
MARK ALAN BURGESS,
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
Before REAVLEY, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Following a jury trial, Petitioner Mark Alan Burgess was
convicted of murder and sentenced to life in prison. He filed a
petition for a writ of habeas corpus in district court pursuant to
28 U.S.C. § 2254, alleging that the state trial court committed
various constitutional violations that tainted his conviction. The
district court denied his petition, and we granted him a
certificate of appealability on the issue whether the admission of
evidence at trial in violation of his Fifth Amendment rights
constituted reversible error. We now AFFIRM.
I
Burgess was convicted for the murder of Amy Cone, his former
girlfriend. Cone was last seen alive the morning of November 12,
1996, when she dropped her children off at school. Later that day,
Burgess used her cellular phone to call her mother, Lucian
Richardson. He told Richardson that he and Cone were taking a
business trip, and he asked Richardson to pick up Cone’s children
and keep them overnight. Cone’s parents became suspicious,
however, when Burgess called again the next day to tell them that
he and Cone would not be home until later that afternoon. Finding
it unusual that Cone herself had not called them directly, they
filed a missing persons report with the police.
Shortly after his first conversation with Cone’s parents on
November 12, Burgess called a friend and her husband, Sue and Dale
Bakker, and told them that he “had hurt someone really bad” and
that he “wanted to turn himself in.” When they encouraged him to
contact the police, he responded, “you don’t understand. I think
I’ve killed somebody. I think she’s dead.” The following day,
Burgess used Cone’s cell phone to call his brother and his uncle.
He told his brother, Gary Burgess, that “something terrible had
happened” and that he “had finally snapped, and had killed somebody
... [w]ith his bare hands.” He told his uncle, Harry Weldon, that
he had “flipped out” and “had hurt somebody real bad, and that he
2
may have killed somebody.” He also spoke with Carla Sharp, a
waitress at a local restaurant that he and Cone had frequented.
When Sharp asked Burgess about Cone, he replied that she had been
decapitated in a car accident.
On November 14, the police found Burgess at a truck stop
driving Cone’s car, a Chevrolet Suburban. Patrol officers pursued
Burgess for over 50 miles, at speeds in excess of 100 miles per
hour, until they succeeded in stopping him. When he was finally
apprehended, the officers discovered that he had two outstanding
warrants for theft, and they read him Miranda warnings. When asked
about Cone, Burgess initially waived his Miranda rights and
explained that he had left Cone at a friend’s house in Wichita
Falls. At some point thereafter, however, he invoked his right to
remain silent and requested to speak with a lawyer. The police
placed Burgess in custody and searched the Suburban. They found
many of Cone’s personal items – including her cell phone, wallet,
and purse – inside the vehicle.
Burgess was taken to the Eastland County courthouse, where he
again invoked his Fifth Amendment rights and requested to speak
with Russ Thomason, his attorney. When Thomason arrived, he
conferred privately with Burgess and then informed the police that
he would not be representing Burgess. The police told Thomason
that they urgently needed to locate Cone and requested that he
determine whether Burgess would disclose where she was. Thomason
3
agreed and again spoke with Burgess privately. Thomason returned
shortly with a piece of paper containing written directions
describing the location of Cone’s body. The police, who were
unfamiliar with the area described in the note, asked Thomason if
Burgess would agree to show them the location. Thomason again
consulted with Burgess, and Burgess agreed to assist the police
discover her body. With Burgess’s assistance, police officers
searched the area identified in the written directions for many
hours until they finally located Cone’s body. Testimony at trial
indicated that the police would have had little chance of finding
Cone’s body without Burgess’s assistance.
The state indicted Burgess for murder. Before trial, Burgess
filed a motion to suppress the evidence gained from the violation
of his Fifth and Sixth Amendment rights. He argued that Thomason’s
visits to him violated his right to counsel because the police
initiated contact with him after he requested assistance of
counsel. He contended that the evidence obtained as a result of
the violation – namely, the written directions – should be
suppressed. He also contended that the “fruits” of this evidence
should be suppressed, including the evidence relating to the
discovery of Cone’s body, the forensic report, and any statements
Burgess made while assisting the police locate her remains. The
district court rejected his claims, finding no constitutional
violation. Accordingly, at trial, the state introduced the written
directions provided by Burgess, as well as evidence that Cone’s
4
body was recovered at that location and forensic evidence
indicating that she had been strangled by hand and that she had
received several blows to the head that were consistent with blows
from fists. The state also introduced a significant amount of
other information, including the phone calls Burgess made following
Cone’s disappearance, the statements he made to various people
admitting that he had injured or killed someone, and the fact that
he was recovered driving Cone’s vehicle.
A jury found Burgess guilty of murder and sentenced him to
life in prison. On direct appeal, the Texas Second District Court
of Appeals affirmed his conviction. Although the court agreed that
there was no Sixth Amendment violation, the court, relying on
Edwards v. Arizona,1 concluded that the police had violated his
Fifth Amendment right to counsel by initiating contact with him
after he requested the assistance of counsel. The court concluded,
however, that this violation constituted only harmless error
because there was “substantial evidence of [Burgess’s] guilt.” In
conducting its harmless error review, the court focused only on
whether the admission of the written directions was harmless; it
did not address Burgess’s arguments that the “fruits” of that
violation should have been excluded as well.
Burgess filed a petition for discretionary review with the
Texas Court of Criminal Appeals, which denied review. He also
1
451 U.S. 477 (1981).
5
filed a state habeas petition. In both of these filings, he
repeated his claims that the admission of both the written
directions and its “fruits” constituted reversible error. His
state habeas petition was denied without opinion.
In September 2000, Burgess filed a petition in the Northern
District of Texas requesting federal habeas relief pursuant to 28
U.S.C. § 2254. The district court rejected his petition,
concluding that the evidence admitted in violation of his right to
counsel constituted only harmless error. Like the state courts,
the federal district court interpreted Burgess’s claim as
challenging only the admission of the written directions; its error
analysis thus did not consider whether the admission of Cone’s
body, the autopsy report, and statements made by Burgess during the
search for her body constituted harmless error. This appeal
followed.
II
Burgess filed his habeas petition under 28 U.S.C. § 2254 on
September 21, 2000, and our review is therefore governed by the
amendments to the federal habeas corpus statutes embodied in the
Antiterrorism and Effective Death Penalty Act. Under the AEDPA,
when a state prisoner’s underlying claims were adjudicated on the
merits in state court, a federal court may not grant relief under
§ 2254 “unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
6
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.2
Section 2254(d)(2) is not at issue in this case; there is no claim
that the state trial court’s decision was “based on an unreasonable
determination of the facts in light of the evidence presented.”
Our focus, therefore, is on § 2254(d)(1).
Under that provision, a state court’s decision is “contrary
to” clearly established federal law “when it reaches a legal
conclusion in direct opposition to a prior decision of the United
States Supreme Court or when it reaches a different conclusion than
the United States Supreme Court on a set of materially
indistinguishable facts.”3 Similarly, a state court decision
represents an “unreasonable application” of clearly established
federal law under § 2254(d)(1) when the state court “correctly
identifies the governing legal rule but applies it unreasonably to
the facts of a particular prisoner’s case.”4 To determine whether
the court applied the rule “unreasonably,” “a federal habeas
court . . . should ask whether the state court’s application of
clearly established federal law was ‘objectively unreasonable.’
2
28 U.S.C. § 2254(d).
3
Kutzner v. Johnson, 242 F.3d 605, 608 (5th Cir. 2001); see
also Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
4
Williams, 529 U.S. at 407-08.
7
The federal habeas court should not transform the inquiry into a
subjective one.”5 “‘[U]nreasonable’ does not mean merely
‘incorrect’: an application of clearly established Supreme Court
precedent must be incorrect and unreasonable to warrant federal
habeas relief.”6
To obtain relief under § 2254(d)(2), a state prisoner must
demonstrate that the state court determined the facts unreasonably
given the evidence presented. The state court’s factual
determinations are presumed correct, but a petitioner may rebut
this presumption with clear and convincing evidence.7
Even if we are entitled to grant relief under one of the
provisions of § 2254(d), we may not do so if the trial error was
harmless. In Brecht v. Abrahamson,8 the Supreme Court “set[] forth
a standard for harmless error analysis that was intended to apply
to all federal habeas cases involving constitutional ‘trial’
error.”9 Under this standard, a federal court may grant habeas
relief only if it determines that the constitutional error “had
5
Id. at 409-10.
6
Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002) (citing
Williams, 529 U.S. at 410-12).
7
28 U.S.C. § 2254(e)(1) (2003).
8
507 U.S. 619 (1993).
9
Robertson v. Cain, 324 F.3d 297, 306 (5th Cir. 2003).
8
substantial and injurious effect or influence in determining the
jury’s verdict.”10
III
On appeal, Burgess argues that the district court erred in
conducting its harmless error analysis. His principal claim is
that the district court failed to consider the “totality” of the
constitutional violation because it limited its harmless error
analysis to an examination of whether the admission of the written
directions affected Burgess’s trial. He argues that the admission
of the “fruits” of the Fifth Amendment violation – namely, the
evidence of Cone’s body, the autopsy report, and statements made by
Burgess as he assisted the police locate Cone’s body – should also
have been suppressed, and that the district court erred by not
considering the impact of this evidence on Burgess’s trial.
Burgess believes that the police officers’ willful violation of his
right to counsel, coupled with the state’s use at trial of all of
the illegally obtained evidence and its fruits, was so egregious as
to constitute “structural” or “hybrid” error that is not amenable
10
Brecht, 507 U.S. at 623.
9
to harmless error analysis.11 He contends that, under Brecht, the
violations require automatic reversal.
Burgess’s argument on appeal rests on the assumption that the
state trial court erred in admitting the “fruits” of the
constitutional violation. He focuses on three items of evidence
that he claims should have been suppressed: the evidence of Cone’s
body, the autopsy report, and statements made by Burgess as he
helped the police locate her remains. We will first address the
admission of the derivative physical evidence – Cone’s body and the
forensic report – and then examine the admission of statements made
by Burgess to the police during the search for Cone’s body to
determine if relief is warranted.
A
If Burgess is to prevail on his claim that the trial court
erred in admitting Cone’s body and the autopsy report, he must
11
In Brecht, the Supreme Court defined three general
categories of error. The Court held that classic trial errors
would be reviewed in habeas cases using the harmless error analysis
defined by Kotteakos v. United States, 328 U.S. 750 (1946). See
Brecht, 507 U.S. at 638. The Court concluded, however, that
“structural” errors – errors that “infect the entire trial process”
– are not subject to harmless error analysis and require automatic
reversal. Id. at 629. The Court also identified a third type of
error, “hybrid” error:
[I]n an unusual case, a deliberate and especially
egregious error of the trial type, or one that is
combined with a pattern of prosecutorial misconduct,
might so infect the integrity of the proceeding as to
warrant the grant of habeas relief, even if it did not
substantially influence the jury’s verdict.
Id. at 638 n.9. As with structural errors, hybrid errors may
require reversal even if they are harmless.
10
demonstrate that the district court decision either (1) was
“contrary to” or (2) involved an “unreasonable application” of
“clearly established” federal law “as determined by the Supreme
Court of the United States.”12 This he cannot do.
Section 2254(d)(1) specifies that relief is unavailable unless
there is a violation of “clearly established federal law as
determined by the Supreme Court of the United States.”13 The
Supreme Court, however, has never held – much less “clearly
established” – that physical evidence derived as a result of a
Fifth Amendment violation must be suppressed. Accordingly, we
cannot grant relief.14
In fact, fairly read, the Supreme Court’s decisions in the
Fifth Amendment area most likely establish the opposite rule: that
fruits analysis does not apply to Miranda or Edwards violations.
The Supreme Court first addressed “fruits” analysis in the Fifth
Amendment context in Michigan v. Tucker.15 In Tucker, the Supreme
Court held that the testimony of a prosecution witness whose
identity was discovered as a result of a statement obtained from
12
28 U.S.C. § 2254(d)(1).
13
Id. (emphasis added).
14
As the Third Circuit recently commented, “[o]ur primary
concern with the fruit of the poisonous tree argument [in the Fifth
Amendment context] is that the Supreme Court has never held that
‘fruits’ of involuntary statements are inadmissible.” Lam v.
Kelchner, 304 F.3d 256, 268 (3rd Cir. 2002).
15
417 U.S. 433 (1974).
11
the defendant in violation of Miranda would not be suppressed. In
so doing, the Court refused to apply “fruits” doctrine for the
Miranda violation in that case. The Court extended this approach
in Oregon v. Elstad by refusing to allow a Miranda violation to
taint a suspect’s subsequent voluntary waiver of his rights.16 The
Court held that, “[t]hough Miranda requires that the unwarned
admission must be suppressed, the admissibility of any subsequent
statement should turn in these circumstances solely on whether it
is knowingly and voluntarily made.”17 Taken together, Tucker and
Elstad suggest that “fruits” analysis does not apply as fully in
the Fifth Amendment context as it does to Fourth Amendment
violations.
Burgess does not dispute that the Supreme Court has limited
the application of fruits doctrine to Fifth Amendment violations.
He argues instead that the Supreme Court’s recent decision in
Dickerson v. United States18 undermines these older Supreme Court
decisions. Both Tucker and Elstad, he notes, were decided at a
time when the Supreme Court characterized Miranda as a
“prophylactic” rule that “swept more broadly than the Fifth
Amendment.” In both cases, the Court’s rationale reflected the
understanding that Miranda was not constitutionally compelled and
16
470 U.S. 298 (1985).
17
Id. at 309.
18
530 U.S. 428 (2000).
12
that “technical” Miranda violations should not bar the admission of
otherwise reliable evidence.19 In Dickerson v. United States, the
Supreme Court changed its approach to Miranda and held that Miranda
is a “constitutional decision” rather than a mere “prophylactic”
requirement. Given that Miranda violations are now
“constitutional” violations, Burgess argues that Tucker and Elstad
should not control our decision.
We cannot accept Burgess’s argument for two reasons. First,
in Dickerson itself, the Supreme Court apparently confirmed
Elstad’s continued vitality:
Our decision in [Elstad] – refusing to apply the
traditional “fruits” doctrine developed in Fourth
Amendment cases – does not prove that Miranda is a
nonconstitutional decision, but simply recognizes the
fact that unreasonable searches under the Fourth
Amendment are different from unwarned interrogation under
the Fifth Amendment.
Not only did Dickerson not explicitly overrule Elstad’s restrictive
view of the role of “fruits” analysis to Fifth Amendment
violations, but it also explicitly rejected Burgess’s argument by
stating that Elstad’s holding was not inconsistent with the Court’s
view of Miranda as a “constitutional rule.” Burgess’s suggestion
that Dickerson nonetheless overruled Tucker and Elstad sub silentio
19
As we later wrote of Tucker, “neither the Fifth Amendment
interest in assuring trustworthy evidence nor the general policy of
deterring improper police conduct would be furthered by suppressing
the testimony of a witness so identified.” United States v. Cherry,
794 F.2d 201, 207-08 (5th Cir. 1986) (analyzing Tucker).
13
is without merit. Second, and more importantly, we cannot grant
relief under § 2254(d)(1) except for violations of “clearly
established” law. Even if we agreed that Dickerson had undermined
Elstad’s viability, we still could not say that Dickerson – or any
other Supreme Court decision – clearly established that the fruits
of an Edwards-style violation are inadmissible.20
For the same reason, Burgess’s reference to the Tenth
Circuit’s recent decision in United States v. Patane21 is of no
avail. Under § 2254(d)(1), we may grant relief only for a
violation of “clearly established” federal law “as determined by
the Supreme Court of the United States.”22 A decision by one of our
20
Indeed, we have held that the “derivative evidence doctrine
is not triggered by an Edwards-style violation.” See United States
v. Cannon, 981 F.2d 785, 789 (5th Cir. 1993). Under this circuit’s
law, then, the state trial court committed no constitutional error.
We note too that the circuits are split on this issue. Compare
United States v. Patane, 304 F.3d 1013, 1029 (10th Cir. 2002),
cert. granted, 123 S.Ct. 1788 (Apr. 21, 2003) (suppressing firearm
discovered pursuant to a statement obtained in violation of
Miranda), with United States v. Faulkingham, 295 F.3d 85, 93-94
(1st Cir. 2002) (admitting statements from a witness and drugs
discovered as a result of a statement obtained in violation of
Miranda). The Supreme Court may soon resolve this issue. The
Court granted certiorari in Patane, a case in which the Tenth
Circuit used a “fruits” analysis to suppress a firearm discovered
after the police questioned a suspect without first reading him his
Miranda rights. Until the Supreme Court settles the issue, though,
the law will not be clearly established for purposes of §
2254(d)(1).
21
304 F.3d 1013 (10th Cir. 2002).
22
28 U.S.C. § 2254(d)(1) (emphasis added).
14
sister circuits, even if compelling and well-reasoned, cannot
satisfy the requirements under § 2254(d)(1).23
As the foregoing discussion demonstrates, it is not “clearly
established” that derivative physical evidence obtained after a
Fifth Amendment, Edwards-style violation must be suppressed. The
trial court’s admission of Cone’s body and the autopsy evidence
thus did not contradict or unreasonably apply Supreme Court
precedent within the meaning of § 2254(d)(1). Burgess perhaps
concedes as much when he states that “[t]he United States Supreme
Court has recognized a principle that by extension is applicable to
the case at bar.” It is not enough, under § 2254, that a Supreme
Court case apply “by extension” to a purported state court
violation; the Supreme Court must speak clearly. For this reason,
we do not have grounds under § 2254(d)(1) to grant Burgess relief
for the trial court’s failure to exclude Cone’s body or the
forensic report.
23
Burgess cites two Supreme Court cases for support, but
neither case is relevant to our issue. He first cites Rhode Island
v. Innis, 446 U.S. 291, 298 (1980). In Innis, the Court attempted
to clarify its Miranda decision by explaining what constitutes an
“interrogation” such that Miranda’s protections come into play.
Innis, however, did not address whether the “fruits” of a Miranda
(or Edwards) violation must be excluded. He also cites Arizona v.
Fulminante, 499 U.S. 279 (1991), as support for his “fruits”
argument. Like Innis, though, Fulminante said nothing about the
admissibility of “fruits” of Fifth Amendment violations. It held
only that the defendant’s coerced confession – i.e, direct, not
derivative evidence – could not be admitted at trial.
15
B
Burgess also contends that the trial court violated his Fifth
Amendment right to counsel by admitting statements made by Burgess
during the search for Cone’s body. We disagree.
During the search for Cone’s body, Burgess allegedly made
several highly incriminating statements.24 Although the state at
a pretrial hearing attempted to portray these statements as
voluntary, spontaneous, and uncoerced, and thus admissible under
Edwards,25 it is possible that these statements constituted an
ongoing violation of his Fifth Amendment right to counsel because
Burgess had still not been provided counsel at the time of the
search.
We need not resolve that issue, however, because these
statements were never admitted at trial. The only record citations
Burgess provides are to the testimony of one of the policemen at a
pretrial suppression hearing. In his brief, Burgess provides us
with no evidence indicating that the jury ever heard any of these
statements, and our own review of the trial record revealed no such
24
For example, Texas Ranger Russ Authier testified at a
pretrial hearing that Burgess said, “I didn’t mean to hurt her. You
know, I just snapped.” Authier also testified that Burgess said,
“I didn’t mean to kill her. I just snapped.”
25
Edwards held that “an accused, . . . 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.”
Edwards, 451 U.S. at 484-85 (emphasis added).
16
disclosures. Since the jury never heard any of the statements
Burgess allegedly made during the search for Cone’s body, we cannot
agree that the use of these statements at a pretrial hearing had a
“substantial and injurious effect or influence in determining the
jury’s verdict.”26 There was, thus, no error whatsoever, harmless
or otherwise.
In any event, even if the jury had heard some or all of these
statements, there is a wealth of other evidence legitimately in the
record that supports the jury verdict. Burgess repeatedly called
people – using Cone’s cell phone – and told them that he had either
“hurt someone real bad” or “killed someone.” In fact, he called
Cone’s parents - using her cell phone - at the precise time that
she was missing. He admitted to his brother that he had “killed
someone with his bare hands,” and the forensic report – which, as
noted above, was properly admitted – revealed that Cone had been
strangled by hand. Taken together, these pieces of evidence
provide overwhelming evidence of his guilt.27
26
See Brecht, 507 U.S. at 637.
27
There is, of course, a wealth of other evidence in the
record. Burgess was apprehended after a lengthy, high-speed car
chase, driving Cone’s Suburban. The car contained many of her
personal belongings, including her purse. In addition, Burgess
told Carla Sharp that Cone had been decapitated, even though he
later told police that he had dropped her at a friend's house.
17
IV
Perhaps recognizing that the trial court did not violate
“clearly established” law, Burgess attempts to recast the violation
as “structural” or “hybrid” error. Citing Brecht, he claims that
structural and hybrid errors are not subject to harmless error
analysis but instead require automatic reversal. Burgess’s
argument is misguided.
First, as noted above, under § 2254(d)(1), we have authority
to grant habeas relief only when there is a violation of “clearly
established” law. Without such a predicate violation, the statute
forbids us from granting relief. Given that the state court did
not err – either under our own precedent or under “clearly
established” Supreme Court precedent – by admitting the physical
fruits of the Edwards violation, we do not have the authority under
§ 2254(d) to grant relief.
For this reason, Burgess’s reliance on Brecht v. Abrahamson28
is misplaced. In Brecht, the Supreme Court explained that a
federal court in habeas must generally review a state court’s
decision using a strict “harmless error” standard, but that cases
involving “structural” or “hybrid” error require reversal
regardless of harm. In making these observations, however, the
Court did not purport to enlarge the power of federal courts to
28
Brecht, 507 U.S. 619 (1993).
18
grant relief under § 2254(d)(1).29 Brecht does not hold that
structural or hybrid error requires reversal even when the trial
court has not committed a violation of clearly established federal
law. It held only that, if “structural” or “hybrid” error occurs,
harmless error review is inappropriate. Under the AEDPA, we simply
cannot grant relief unless we find a violation of “clearly
established” federal law, even if the error complained of is
“structural.”
In any case, Burgess has not demonstrated that the purported
violations in this case constituted either “structural” or “hybrid”
error. “Structural error” is error that “infect[s] the entire
trial process,” such as a biased trial judge or the denial of
counsel to the defendant.30 “Hybrid” error is defined as either an
“especially egregious” trial error or a trial error “combined with
a pattern of prosecutorial misconduct that might so infect the
integrity of the proceeding” as to warrant habeas relief. These
types of errors arise in “very limited circumstances.”31 The
29
Indeed, given that Brecht predates the passage of the AEDPA,
the Court in Brecht could not have spoken to this issue.
30
Brecht, 507 U.S. at 629-30. Although Brecht cited “denial
of counsel” as an example of a structural error, its cite to Gideon
v. Wainwright, 372 U.S. 335 (1963), makes it clear that the Court
was not referring to the Edwards-style violation at issue in this
case. Rather, it was referring to the absolute denial of the Sixth
Amendment right to have assistance of counsel at trial.
31
See, e.g., Duckett v. Mullin, 306 F.3d 982, 994-95 (10th
Cir. 2002).
19
violation in this case did not constitute either structural or
hybrid error. Given that the state court did not err by admitting
the derivative physical evidence and that the statements made by
Burgess during the search were never revealed to the jury, the only
evidence admitted as a result of the Fifth Amendment violation was
the written directions. The admission of these directions was
error, but we do not agree that it “infect[ed] the entire trial
process.” Indeed, we have explicitly held that Fifth Amendment
violations arising from custodial interrogation are subject to
harmless error analysis under Brecht.32 Given this holding,
Burgess’s argument must fail.
We also agree with the district court that the admission of
the written directions was harmless error under Brecht. As noted
above, there was a wealth of evidence validly in the record that
provided overwhelming evidence of Burgess’s guilt, including: his
statements to friends and family that he had injured or killed
someone; his statement to his brother that he had killed a woman
with his bare hands; the forensic report revealing that Cone was
strangled by hand; the phone calls that he made using Cone’s cell
phone; and the fact that he was driving Cone’s car, which contained
her purse and other personal belongings, when he was captured.
Given this evidence, the admission of the written directions did
32
See Hopkins v. Cockrell, 325 F.3d 579 (2003) (holding that
admission of a prisoner’s involuntary confession obtained in
violation of Miranda was “harmless error”).
20
not have a “substantial and injurious effect or influence in
determining the jury’s verdict.”33
V
We do not have grounds for granting relied under § 2254(d)
unless we first find that the state court made an error of “clearly
established” law that is not harmless. We find no such violation
here. The judgement of the district court is AFFIRMED. The
State’s motion to strike Burgess’s Supplemental Letter Brief is
DENIED.
33
Brecht, 507 U.S. at 623.
21
Burgess v. Dretke
Court: Court of Appeals for the Fifth Circuit
Date filed: 2003-11-11
Citations: 350 F.3d 461
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