UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 01-11385

BOBBY RAY HOPKINS,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION,

Appellee.

Appeal from the United States District Court

for the Northern District of Texas

March 20, 2003

Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner, Bobby Ray Hopkins, is currently confined on death

row pursuant to a conviction of capital murder on May 25, 1994.

After exhausting his state direct appea l and habeas corpus

remedies, petitioner initiated a federal habeas corpus proceeding

under 28 U.S.C. § 2254, which was filed on June 17, 1999, after the

effective date of AEDPA. On September 28, 2001, the district court

entered judgment denying habeas relief.

Hopkins asked this Court to grant a COA, raising three2

Constitutional issues. This Court granted Hopkins’ application for

a COA on all three issues.

BACKGROUND

On July 31, 1993, in the early evening, the bodies of 18-yearold Sandi Marbut and her 19-year-old cousin J ennifer Weston were

discovered by Marbut’s parents. According to Marbut’s father, the

girls’ bodies were found in their apartment, which was across the

street from Marbut’s parents’ house.

On the evening of July 30, 1993, Marbut and Weston had some

friends over at their apartment, and Marbut drove the last guest

home about 4:00 a.m. the next morning. It was alleged that between

4:00 and 5:00 a.m., Bobby Ray Hopkins entered the apartment and

attacked Marbut, who was in the downstairs living room sleeping on

the couch, stabbing and cutting her approximately 40 times.

Weston came downstairs while Hopkins was attacking Marbut.

Hopkins saw Weston and proceeded to attack her at the foot of the

stairway. Weston apparently tried to flee upstairs but was

overpowered. She died at the landing at the top of the stairs

after suffering 66 stab wounds.

According to the police, Hopkins began to search the bedrooms

for money. Hopkins entered the bathroom and tried to clean the

blood off his body. He took some towels to try to stop the

bleeding from his wounds. He then walked down the stairs and

exited the apartment. Later that evening, Marbut’s father found3

her on the living room floor and discovered Weston at the top of

the stairs.

Texas Ranger George Turner testified that on the evening the

bodies were found, July 31st, he questioned several bystanders at

the scene outside the apartment and, as a result, went in search of

Hopkins. Apparently, Hopkins had been in the girls’ apartment

approximately two weeks before the murders. Hopkins was there with

two other men and got in an argument with Marbut over money that

was missing from her purse. Marbut thought Hopkins had taken the

money and asked him to leave and not come back.

Ranger Turner interviewed Hopkins on July 31st, and noticed

that Hopkins had cuts on his hands and arms. Turner also noticed

what appeared to be blood on Hopkins’ boots. Hopkins allowed

Turner to take the boots. Subsequent tests showed the blood on the

boots was consistent with the blood of Weston, Marbut and Hopkins.

On August 5, 1993, the police searched the area around the

apartment and found two blood stained towels in a culvert between

the girls’ apartment and the house where Hopkins lived with his

parents. The towels belonged to the girls and were given to them

by Marbut’s parents. The blood on the towels was consistent with

the blood of Hopkins. Blood on hairs found on the towels was

consistent with the blood types of Marbut, Weston and Hopkins. On

August 22, 1993, a knife wa s discovered in the weeds outside the

apartment on a route between the girls’ apartment and Hopkins’

home. The blood on the knife was consistent with the blood of4

Hopkins, Marbut and Weston.

Ser ology testing of the blood stains in the apartment

indicated that the blood was consistent with Hopkins’ blood. His

blood was located in numerous areas in the apartment, including on

a light switch plate in the living room , the living room wall, a

sock, a bathroom rug and faucet, a shoe and a magazine in Weston’s

bedroom, a newspaper article in Weston’s purse, the top of the

stairway landing, and one drawer of a chest in Marbut’s bedroom.

DNA testing of Hopkins’ blood indicated that it was consistent with

the blood found on various items throughout the apartment.

Further, Hopkins’ boot matched the footprint of a boot left in the

blood on the carpet in Weston’s bedroom.

In the weeks following the discovery of the bodies, while the

State was developing the above eviden ce, Hopkins was held in

isolation. Hopkins was held after being arrested pursuant to a

felony probation revocation warrant alleging non-reporting and nonpayment. Apparently, it is unusual to hold such a violator in

isolation. After fifteen days in isolation and eight

interrogations by law enforcement officers (none of which resulted

in a confession), the State called in Detective Tony Knott from New

Mexico to just “talk” to Hopkins.

Hopkins considered Knott a friend and apparently the two have

known each other for quite some time. Knott and Hopkins were taken

to a small room on August 19, 1993, which Hopkins alleges was under

the guise o f letting the two of them “catch-up on old times.”1 Hopkins later claimed t hat it wasn’t until the beginning of

a sec ond tape that he was read these warnings, but he also later

indicated that he was aware of the consequences of speaking to

Knott.

5 Prior to speaking, Knott claims to have read Hopkins his Miranda

rights, though Hopkins claims not to remember this and the reading

was not taped as required by Texas law. 1 During this talk, Knott

made many statements to Hopkins indicating that he wanted Hopkins

to tell him about the murders and that the talk was just between

the two of them. During the course of this four-hour talk, Hopkins

made incriminating stat ements, and Hopkins gave a videotaped

interview to Knott. In this interview Hopkins stated that he went

over to Marbut’s and Weston’s apartment around 4:00 or 5:00 a.m.

He and Marbut began to argue, Marbut got a knife, a struggle

ensued, and he ultimately stabbed her. Hopkins admitted that he

was cut during the altercation and bled in the apartment.

On May 13 and 14, 1994, the trial court h eld a J ackson v.

Denno hearing to determine whe ther the confession should be

admitted. The court found, amongst other things, that: Knott had

given Hopkins the required warnings before both the first and

second tapes of the interview and that Hopkins voluntarily waived

those rights; Hopkins did not request an attorney prior to or

during his confession; and, under the totality of the

circumstances, the statement was voluntary. The trial court also

determined that Hopkins desired to terminate the interview on page6

203 of th e transcribed statement, and ruled that any subsequent

statement was inadmissible. A jury trial was subsequently held and

Hopkins was found guilty.

Hopkins challenged the admissibility of his c onfession on

direct appeal. The Texas Court of Criminal Appeals found that the

trial court did err in admitting the first tape because the Miranda

warnings were not on the tape as required by Texas law. However,

the court found that this error was harmless because the references

Hopkins made to the crime on the first tape would only raise issues

of self- defense or temporary insanity and were presented or

directly inferred through other e vidence presented. Also, the

court found that the record supported the trial court’s findings

that Hopkins voluntarily waived his rights on the second tape and

that Hopkins’ confession was neither coerced not involuntary.

Hopkins then brought this habeas action, which was filed on

June 17, 1999, after the effective date of AEDPA. On September 28,

2001, the district court entered judgme nt denying habeas relief.

Hopkins timely filed a notice of appeal, but on November 5, 2001,

the district court denied Hopkins a COA. Hopkins then asked this

Court to grant his application for a COA.

This Court granted Hopkins a COA on all three issues raised:

1. Whether his Fifth and Fourteenth Amendmen t rights to remain

silent were violated by a law enforcement officer repeatedly

coercing and lying to him;7

2. Whether his Fifth and Fourteenth Amendment Due Process rights

were violated when incriminating statements were obtained from

him involuntarily; and

3. Whether his trial counsel was ineffective in representing him

in violation of the Sixth Amendment.

DISCUSSION

Were Hopkins’ Fifth and Fourteenth Amendment rights to remain

silent violated?

Hopkins claims that Knott’s conduct violated his Fifth

Amendme nt right to remain silent in that Knott procured a

confession from Hopkins involuntarily. Though Hopkins also claims

that Knott’s conduct violated his due process righ ts, this is

really a restatement of his Fifth Amendment claim, and claims that

are covered by such specific constitutional prov isions must be

analyzed under the standard appropriate to that specific provision

and not under the rubric of substantive due process. G raham v.

Connor , 490 U.S. 386, 395 (1989).

This Court reviews a district co urt’s findings of fact for

clear error and its conclusions of law are reviewed de novo

.

Thompson v. Cain

, 161 F.3d 802, 805 (5th Cir. 1998). Furthermore,

under AEDPA, an application of habeas corpus shall not be granted

with respect to any claim that was adjudicated on the merits in

state court proceedings unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly2 Hopkins also i ndicates, though never argues, that he was

trying to invoke his right to remain silent when he told Knott he

did not want to talk about the murder, but apparently Hopkins was

willing to continue to talk about other topics. Also, Hopkins

never explicitly invoked his right to remain silent, and, in light

of this Court’s recent decision in Soffar v. Cockrell

, 300 F.3d 588

(5th Cir. 2002), it is doubtful that such an argument would warrant

much merit even if raised.

8 established Federal law, as determined by the S upreme

Court of the United States; or

(2) resu lted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). With regard to questions of fact,

§ 2254(e)(1) requires federa l courts to presume that the factual

findings of the state courts are correct unless the petitioner

“rebut[s] the presumption of correctness by clea r and convincing

evidence.” 28 U.S.C. § 2254(e)(1).

Essentially, Hopkins alleges that his confession was

involuntarily made because he was deceived and coerced by Knott.

He points to many instan ces in the record where it is clear that

Knott was trying to use his relationship with Hopkins to get him to

talk. 2 He also points out that he was placed in solitary for

fifteen days, without being ch arged with the murder, and was

questioned eight different times before Knott was called in. He

also argues that, assuming his Miranda rights were read to him,

that he still was deceived by Knotts’ assertions to him, likening3 As to this point, it is also worth noting that Knott admitted

in the pre-trial hearing and in his trial testimony that he lied to

Hopkins at times during the confession.

9 his case to Spano v. New York , 360 U.S. 315 (1959). 3

There are two inquiries to determine whether an accused has

voluntarily and knowingly waived his Fifth Amendment privilege

against self-incrimination. M oran v. Burbine

, 475 U.S. 412, 421

( 1986); Soffar

, 300 F.3d at 592. First, the waiver of the right

must be voluntary in that it was not the product of intimidation,

coercion, or deceptio n. Moran , 475 U.S. at 421. Second, the

relinquishment must be made with a full awareness of the nature of

the right being waived. I d. A trial court does not err in

admitting a defendant’s confession into evidence if the defendant

ambiguously asserted his right to remain silent nor does a police

officer violate that right when he attempts to clarify whether a

defendant wishes to remain silent and that defendant chooses to

continue to speak about the offense. Barnes v. Johnson

, 160 F.3d

218, 224-25 (5th Cir. 1998). Also, the Supreme Court has held that

the admission of an involuntary confession is trial error subject

to a harmless error analysis. A rizona v. Fulminante

, 499 U.S. 279,

310 (1991). In order to grant federal habeas relief, the trial

error must have a substantial and injurious effect or influence in

det ermining the jury’s verdict. B recht v. Abrahamson

, 507 U.S.

619, 637 (1993). Therefore, even if this Court were to find that10

Hopkins’ Fifth Amendment rights were violated, this Court must also

find that admission of the confession was not harmless in

determining the jury’s verdict.

If not for th e overwhelming amount of evidence presented to

the jury indicating Hopkins’ guilt, we migh t be persuaded by

Hopkins’ argument. Hopkins argues that his confession was the

result of deception and coercion on the part of the police and

Knott. In order for a defendant to establish that his confession

was involuntary, he must demonstrate that it resulted from coercive

police conduct and it is essential that there be a link between the

coercive conduct of the police and the confession of the defendant.

Colorado v. Connelly

, 479 U.S. 157, 163-65 (1986). The Supreme

Court has stated that “[a]ny evidence that the accused was

threatened, tricked, or cajoled into a waiver will, of course, show

that the defendant did not volu ntarily waive his privilege.”

Miranda v. Arizona

, 384 U.S. 436, 476 (1966). In S pano

, the

Supreme Court held that a confession that was obtained after many

hours of constant interrogation, at a very early hour, violated the

defendant’s Fourteenth Amendment rights. 360 U.S. at 321-23. The

Spano Court considered the totality of the circumstances to reach

this conclusion, including the fact that Spano had requested, but

been refu sed, an attorney, and that the police brought in an old

friend to deceive Spano and to help get him to talk. Id. at 232.

However, this Court recently held that trickery or deceit is only4 Stat e’s Exhibit 213, p. 56. Later in the interview, Knott

also told Hopkins that “you ain’t got absolutely nothing to hide

from me.” Id. at 77.

11 p rohibited to the extent that it deprives the defendant of

knowledge essential to his ability to understand the nature of his

rights and the consequences of abandoning them. Soffar , 300 F.3d

at 596. “Neither mere emotionalism and confusion, nor mere

trickery will alone necessarily invalidate a confession.” S elf v.

Collins , 973 F.2d 1198, 1205 (5th Cir. 1992) (internal quotations

and citation omitted).

It is clear from the context of the confession itself and its

surrounding circumstances that Knott’s conduct went beyond mere

emotionalism, tri ckery or confusion and passed the line into the

sort of lying that deprives a defendant “of the knowledge essential

to his ability to understand the nature of his rights and the

consequences of abandoning them.” M oran v. Burbine

, 475 U.S. 412,

424 (1986). During the first taped confession, Knott assured

Hopkins that their conversation was confidential telling Hopkins,

“This is for me and y ou. This is for me. Okay. This ain’t for

nobody else .” 4 This assurance came after Hopkins indicated to

Knott that he didn’t want to talk too loudly for fear t hat the

officers outside of the room might hear them discussing the murder.

Knott also reassured Hopkins throughout the confession that they

were “friends” and that he just wanted to know the truth. During

the interview, Knott also assured Hopkins that he would not tell12

Hopkins’ mother about details of the murder or Hopkins’ confession.

After obtaining the confession from H opkins, however, Knott

informed Hopkins that if he was subpoenaed, he would have to tell

the truth about their conversation because Knott’s family depended

on him to bring home a paycheck.

These comments as well as the circumstances under which

Hopkins was interviewed, i.e., after being in isolation for fifteen

days, being interviewed eight previous times, being interviewed a

ninth time by someone Hopkins considered a “close friend,” leads to

a very Spano -like situation. The totality of the circumstances,

especially in light of Knott’s comments to Hopkins that their

conversation was confidential, leads this Court t o believe that

portions of the Hopkins’ admitted confession were indeed

involuntary. An officer cannot read the defendant his M iranda

warnings and then turn around and tell him that despite those

warnings, what the defendant tells the officer will be confidential

and still use the resultant confession against the defendant. Yet

Knott and the prosecution did exactly that.

However, as we stated above, even if this Court were to

exclude those portions of the confession that were obtained

involuntarily, Hopkins’ conviction must be affirmed if the error

was harmless. F ulminante

, 499 U .S. at 310. In order to grant

federal habeas relief, the trial error must have a substantial and

injurious effect or influence in determining the jury’s verdict.13

Br echt , 507 U.S. at 637. In light of the overwhelming amount of

circumstantial evidence present in this case, we hold that any

error in admitting Hopkins’ confession was harmless. The jury was

presented with evide nce that blood consistent with the victims’

blood was found on Hopkins’ boots. Further, Hopkins’ boot matched

the footprint of a boot left in the blood on the carpet in Weston’s

be droom. Blood consistent with Hopkins’ blood was also found

throughout the victims’ apartment. Numerous DNA tests of the blood

also indicated that it was Hopkins’ blood in the apartment. Also,

when Hopkins was interviewed the day after the murders, he had

noticeable cuts on his hands and arms. In addition, police found

two blood stained towels, belonging to the victims, in a culvert

between the victims’ apartment and the house where Hopkins lived

with his parents. The blood on the towels was consistent with the

blood of Hopkins and the victims. Finally, there also was

evidence that Hopkins had been in an argument over money with the

victims two weeks earlier.

At trial, the state relied heavily on this other

circumstantial evidence rather than relying sol ely on the

confession. The Hopkins’ confession was barely mentioned in the

opening argument, and though the taped confession was admitted as

evidence, a majority of the trial was taken up by expert testimony

as to the reliability of the DNA evidence as well as presenting the

other circumstantial evidence mentioned above. In the closing5 The pros e cution’s reluctance to use the confession too

aggressively may have stemmed from the f act that Hopkins stated

that he went over to the victims’ apartment that night to continue

an ongoing affair he was having with Marbut and that she attacked

him first when he told her that his girlfriend was returning to

town. If believed, this evidence may have had some sort of a

mitigating effect on the jury. In fact, the prosecution warned the

jury in its opening statement not to trust everything in the

confession.

14 arguments, the state once again briefly mentioned the confession,

but the thrust of its argument was on the other circumstantial

evidence. 5

In light of the overwhelming amount of circumstantial evidence

present in this case, as well as the st ate’s limited reliance on

the confession at trial, we hold that any error in admitting

Hopkins’ confession was harmless.

Was Hopkins’ trial counsel ineffective in representing him in

violation of the Sixth Amendment?

Hopkins c ontends that he received ineffective assistance of

counsel during the punishment phase of the trial because his

counsel failed to present evidence that Hopkins was functioning at

a below average intelligence level, received a serious head injury

as a child, and had abused alcohol and drugs.

Under the two-prong test enunciated in Stricklan d v.

Washington

, 466 U.S. 668, 687 (1984), Hopkins must show that his

counsel’s assistance was deficient and that the deficiency

prejudiced him. In evaluating the first prong, judicial scrutiny

of counsel’s performance must be highly deferential, and courts15

must indulge in a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance. Id.

at 689. Hopkins must demonstrate prejudice by showing that his

attorney’s er rors were so serious that they rendered the

proceedings unfair or the result unreliable. L ockhart v. Fretwell

,

506 U.S . 364, 372 (1993). This Court has held that a tactical

decision not to pursue and present potential mitigating evidence on

the ground that it is double-edged in nature is objectively

reasonable. K itchens v. Johnson

, 190 F.3d 698, 703-04 (5th Cir.

1999).

After reviewing the record and the parties’ brief s, we

co nclude that Hopkins’ counsel did look into the possibility of

presenting the evidence Hopkins’ claims should have been presented,

b ut concluded that the evidence was weak and double-edged in

nature. Hopkins’ counsel had doctors examine him for head injuries

but found nothing conclusive or compelling. As for the alcohol and

drug abuse, this Court has repeatedly denied claims of ineffective

assistance of counsel for failure to present “ double edged”

evidence where counsel has made an informed decision not to present

it. B oyle v. Johnson

, 93 F.3d 180, 187-88 (5th Cir. 1996);

Kitchen

, 190 F.3d at 702. We therefore conclude that the district

court’s decision should be affirmed.

CONCLUSION

Having carefully reviewed the parties’ respective briefs and16 G:\opin\01-11385.opn.wpd the record, we hold that the district court did not err in denying

Hopkins habeas relief. Though we are troubled by the state’s

methods by which it obtained Hopkins’ confession, ultimately, we

conclude that its admission was harmless in light of the

overwhelming amount of circumstantial evidence presente d to the

jury and the state’s limited reliance on the confession. We also

are unpersuaded by Hopkins’ contenti on that his counsel was

ineffective. Hopkins’ counsel was operating under an objectively

reasonable trial strategy in selecting the type of mitigating

evidence that was presented. We therefore AFFIRM the district

court’s decision.

AFFIRMED.