United States Court of Appeals

Fifth Circuit



## FILED

November 11, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 of2

evidence at trial in violation of his F ifth 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

Bakk er, 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 Burg ess, 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 he3

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 stoppin g him. When he was finally

apprehended, th e officers discovered that he had two outstanding

warrants for theft, and they read him Miranda warnings. When asked

about Cone, Burgess initially waived his M iranda rights and

explained that he h ad 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 right s and requested to speak

with Russ Thomason, his a ttorney. 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. Thomason4

agreed and again spoke with Burgess privately. Thomason returned

shortly with a piece of paper contain ing 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 v iolation – namely, the written directions – should be

suppressed. He also contended that the “fruits” of this evidence

should be sup pressed, 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, a s well as evidence that Cone’s1 451 U.S. 477 (1981).

5

body was recovered at that location and forensic evidence

indicating that she had been strangled by hand and t hat 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 vario us 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 violati on, the court, relying on

Edwards v. Arizona

, 1 concluded that the police had violated his

Fifth A mendment right to counsel by initiating contact with him

after he requested the assistance of counsel. The court concluded,

however, that t his violation constituted only harmless error

because there was “substantial evidence of [Burgess’s] guilt.” In

conducting its harmless error review, the court focus ed only on

whether the admission of the written directions was harml ess; 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 also6

filed a state habeas petition. In both of these filings, he

repeated his claims that the admission of both th e written

directions and its “fruits” constituted rever sible error. His

state habeas petition was denied without opinion.

I n 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 constit uted 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 harml ess 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 em bodied in the

Antiterrorism and Effective D eath 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, clearly2 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 established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision t hat 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 o f the facts in light of the evidence presented.”

Our focus, therefore, is on § 2254(d)(1).

Under that p rovision, a state court’s decision is “contrary

to” clearly established federal l aw “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 Sup reme Court on a set of materially

indi stinguishable 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.’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 The federal habeas court should not transform the inquiry into a

subjective one.” 5 “‘[U]nreasonable’ does not mean merely

‘incorrect’: an app lication of clearly established Supreme Court

precedent must be incorrect a nd unreasonable to warrant federal

habeas relief.” 6

To obtain relie f 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 p etitioner may rebut

this presumption with clear and convincing evidence. 7

Even if we are entitled t o grant relief under one of the

provisions of § 225 4(d), we may not do so if the trial error was

harmless. In B recht v. Abrahamson

, 8 the Supreme Court “set[] forth

a standard for harmless error analysis that was intended to apply

to all federal habeas cases involvi ng constitutional ‘trial’

error.” 9 Under this standard, a federal court may grant habeas

relief only if i t determines that the constitutional error “had10 Brecht , 507 U.S. at 623.

9

substantial and injurious effect or influence in determining the

jury’s verdict.” 10

III

On appeal, Burgess argues tha t 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 amenable11 In Brecht

, the Supreme Court defined thre e 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 proceed ing 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 to harmless error analysis. 11 He contends that, under B recht , 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 tria l court

erred in admitting Cone’s body and the autopsy report, he must12 28 U.S.C. § 2254(d)(1).

13 Id . (emphasis added).

14 As the Third Circ uit 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.” L am v.

Kelchner , 304 F.3d 256, 268 (3rd Cir. 2002).

15 417 U.S. 433 (1974).

11 demonstrate that the district court decision eith er (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 t he Supreme Court of the United States.” 1 3 T he

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 Supre me Court’s decisions in the

Fifth Amendment area most likely establish the opposite rule: that

fruits analysis does not apply to Miranda or Edwards violati ons.

The Supreme Court first addressed “fruits ” analysis in the Fifth

Amendment context in Michigan v. Tucker. 15 In T ucker , the Supreme

Court held that the testimony o f a prosecution witness whose

identity was discovered as a result of a statement obtained from16 470 U.S. 298 (1985).

17 Id. at 309.

18 530 U.S. 428 (2000).

12 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 refu sing to allow a M iranda 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 vo luntarily made.” 1 7 Taken together, T ucker and

Elstad suggest that “fruits” analysis does not apply as fully in

the Fifth Amendment context as it does to Fourth Amen dment

violations.

Burgess does not dispute that the Supreme Court has limited

the application of fruits doctrine to Fifth Amendment violations.

He argues instead that t he Supreme Court’s recent decision in

Dickerson v. United States 18 undermines these older Supreme Court

decisions. Both T ucker and Elstad

, he notes, wer e decided at a

time whe n the Supreme Court characterized M iranda as a

“prop hylactic” 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 and19 As we later wrote of T ucker , “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 that “technical” Miranda violations should not bar the admission of

otherwise reliable evidence. 19 In D ickerson v. United States

, the

Supreme Court changed its approach to Miranda and held that Miranda

is a “constitut ional decision” rather than a mere “prophylactic”

requirement. Given that M iranda 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 appare ntly confirmed

Elstad ’s continued vitality:

Our decision in [ E lstad ]

– refusing to apply the

traditional “fruits” doctrine developed in Fourth

Ame ndment cases – does not prove that M iranda 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 silentio20 Indeed, we have held that the “derivative evidence doctrine

is not triggered by an Edwards -style violation.” S ee 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. C ompare

United States v. Patane

, 304 F.3d 1013, 1029 (10th Cir. 2002),

cert. granted

, 123 S.Ct. 1788 (Apr. 21, 2003) (suppressing firearm

discovered pursu ant to a statement obtained in violation of

Miranda ), with United States v. Fa ulkingham , 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 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 D ickerson 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 U nited States v. Patane 21 is of no

ava i l. Under § 2254(d)(1), we may grant relief only for a

violation of “ clearl y established ” federal law “ as determined by

the Supreme Court of the United States.” 22 A decision by one of our23 Burgess cites two Supreme Court cases for support, but

neither case is relevant to our issue. He first cites R hode Island

v. Innis

, 446 U.S. 291, 298 (1980). In I nnis

, the Court attempted

to clarify its Miranda decision by explaining what constitutes an

“interrogation” such that Mi randa ’ 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 A rizona v.

Fulminante

, 499 U.S. 279 (19 91), as support for his “fruits”

argument. Like Innis , though, F ulminante said nothing about the

admissibility of “fruits” of Fifth Amendment violations. It held

only that the defendant’s coerced confessio n – i.e, direct, not

derivative evidence – could not be admitted at trial.

15 sister circuits, even if comp e lling 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 an d the autopsy evidence

thus did not contradict or unreasonably ap ply 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 “b y 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.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 accu sed, . . . 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 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, Bu rgess allegedly made

several highly incriminating statements. 24 Although the state at

a pretrial hearing attempted to port ray these statements as

voluntary, spontaneous, and uncoerced , and thus admissible under

Ed wards

, 25 it is possible that these statements constituted an

ongoing violation of his Fifth Amendment right to counsel because

Burgess had still not been prov ided counsel at the time of the

search.

We need not resolve that is sue, 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 such26 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 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 someon e.” In fact, he called

Cone’s parents

- us ing 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 ha nd. Taken together, these pieces of evidence

provide overwhelming evidence of his guilt. 2728 Brecht , 507 U.S. 619 (1993).

18 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

a nalysis 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

est ablished” 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. Abrahamson 28

is misplaced. In B recht

, the Supreme Court explained that a

federal court in habeas must ge nerally review a state court’s

decision using a strict “harmless error” standard, but that cases

involving “structural” or “hybrid” error require reversal

regardless of har m. In making these observations, however, the

Court did not purport to enlarge the power of federal courts to29 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 grant relief under § 2254(d)(1). 29 B recht does not hold that

structural or hybrid error requires reversal ev en 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 re lief 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 jud ge 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 The32 See Hopkins v. Cockrell

, 325 F.3d 579 (2003) (holding that

admissi on of a prisoner’s involuntary confession obtained in

violation of Miranda was “harmless error”).

20 violation in this case did not constitute either structural or

hybrid error. Given that the state court did not err by admitting

the derivative phys ical 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 d o 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.

G iven this evidence, the admission of the written directions did33 Brecht , 507 U.S. at 623.

21

not have a “substantial and injurious e ffect 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 Bri ef is

DENIED.