Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN – Texas Attorney General Greg Abbott offers the following information about George Anderson Hopper, who is scheduled to be executed after 6 p.m. Tuesday, March 8, 2005, for the 1983 capital murder of Rozanne Gailiunas in her Richardson home.

FACTS OF THE CRIME

On October 4, 1983, Hopper attacked 33-year-old Rozanne Gailiunas in the bedroom of her Richardson, Texas, home. While her four-year-old son was sleeping in another room, Hopper tied Gailiunas to her bed, strangled her and shot her twice in the head. Gailiunas’ son found his mother with tissue stuffed in her mouth and making a gurgling sound. Gailiunas lived for two days before she was taken off life-support and died.

Gailiunas’ murder went unsolved until early 1988 when the investigation centered on Joy Aylor, whose husband had been having a relationship with Gailiunas at the time of her murder. Through the confessions of several middlemen who had each skimmed portions of a $5,000 payment, Aylor had paid as an advance for “taking care of” Rozanne, the investigation led to Hopper who had been given $1,500 of the original $5,000 as the next person in the chain of Aylor’s murder-for-hire scheme.

After a five-month, multi-state attempt to elude the police, Hopper was arrested on December 20, 1988, in the Dallas area. On February 27, 1989, Hopper admitted to the murder, providing the police with detailed audio and video confessions. Ultimately, Hopper was convicted for the capital murder of Rozanne Gailiunas and sentenced to death.

PROCEDURAL HISTORY

February 14, 1991 -- A Dallas County grand jury indicted Hopper for capital murder for killing Rozanne Gailiunas.
March 2, 1992 -- A Dallas jury found Hopper guilty of capital murder.
March 16, 1992 -- The punishment phase concluded with a death sentence.
November 5, 1997 -- The Texas Court of Criminal Appeals affirmed Hopper’s conviction and sentence.
March 1, 2000 -- The Texas Court of Criminal Appeals denied Hopper’s state application for writ of habeas corpus.
October 31, 2002 -- A U.S. district court denied a federal petition for writ of habeas corpus.
July 22, 2004 -- The 5th U.S. Circuit Court of Appeals denied relief. Rehearing was denied on September 27, 2004.
December 1, 2004 -- A Dallas county district court set the execution for March 8, 2005.
December 10, 2004 -- Hopper filed a petition for writ of certiorari in the U.S. Supreme Court. The petition is pending.

CRIMINAL HISTORY

• 1976 -- Hopper (age 20) charged with indecent exposure for exposing himself to an apartment manager in Houston, TX.
• 1984 -- Hopper arrested in connection with a pick-pocketing incident at Richardson Square Mall.
• 1982-1986 -- Hopper sold marijuana on consignment from drug dealer/friend.

ProDeathPenalty.com

George Hopper was sentenced to death in 1988 for the October 1983 strangulation and shooting of Richardson nurse Rozanne Gailiunas, 33. Hopper was hired to kill Ms. Gailiunas by Dallas socialite Joy Davis Aylor, who was ultimately convicted of capital murder in 1994 and who is now serving a life sentence. George Anderson Hopper, 44, was convicted in March 1992 for the October 1983 murder of Rozanne Gailiunas. Hopper was sentenced to die by lethal injection. According to court records, Hopper was hired by an unidentified man to kill the 33-year-old Gailiunas for $1,500. Hopper carefully planned the attack by surveying Gailiunas's Richardson home twice - breaking in once, prosecutors said. Once Hopper felt he knew the area well enough, he posed as a flower delivery man and coerced his way into the woman's home. While Gailiunas' 4-year-old son slept across the hall, Hopper tied the woman to her bed, raped her then strangled her. When Gailiunas managed to break free and attempted to struggle, Hopper shot her through a pillow with a .25-caliber pistol, the records say. Hopper was hired by Joy Davis Aylor to kill Ms. Gailiunas. Rozanne was dating Ms. Aylor's estranged husband at the time of the killing. Ms. Aylor was convicted of capital murder in 1994 and is serving a life sentence in prison. Book on this case: Open Secrets: A True Story of Love, Jealousy, and Murder (St. Martin's True Crime Library) by Carlton Stowers.

Texas Execution Information Center by David Carson.

George "Andy" Anderson Hopper, 49, was executed by lethal injection on 8 March 2005 in Huntsville, Texas for the murder-for-hire of a 33-year-old woman.

On 4 October 1983 in Richardson, 4-year-old Peter Gailiunas Jr. found his mother, Rozanne, 33, lying on her bed, bloody, naked, and unconscious. Her mouth was stuffed with tissue and she was making a gurgling sound. She had been strangled and shot twice in the head. She was taken to the hospital, where she died after two days.

At the time of the murder, the victim had been having an affair with Larry Aylor, a wealthy homebuilder who was building a new house for the Gailiunases. Gailiunas and Aylor had both filed for divorce from their spouses and had plans to marry. Peter Gailiunas Sr. accused Aylor of the murder. Aylor, in turn, accused Peter. Both men were cleared, however, and no arrests were made. Aylor's socialite wife, Joy, 34, was also initially considered as a suspect. Peter Gailiunas put up a $25,000 reward for information leading to an arrest for his wife's murder.

Larry and Joy Aylor reconciled after his affair was disclosed, but in 1986, they were again considering divorcing. Around that time, Larry was ambushed at his ranch by two gunmen, but he managed to escape. Two years later, he received an anonymous phone call from a woman claiming that the 1986 attempt on his life was connected to Rozanne Gailiunas' death. Aylor urged the woman to call the police.

That woman, Carol Garland, did call the police, and asked about the $25,000 reward. She then told police that her sister, Joy Aylor, paid her husband, William Garland, $5,000 to have Rozanne Gailiunas killed. Garland and another man, Brian Kreafle, in turn hired Hopper and paid him $1,500 to carry out the crime.

Hopper eluded police for five months, but was finally arrested in the Dallas area on 20 December 1988. He gave detailed audio and video confessions on 27 February 1989. He said that he went to Gailiunas' home posing as a flower delivery man. Once inside the house, he forced Gailiunas to remove her clothing, then tied her to a bed and attempted to rape her. He then began to strangle her with pantyhose. When the victim freed one of her hands and began struggling with him, he shot her in the head twice through a pillow.

The investigation went on for two more years before Hopper was indicted. Hopper had no prior felony convictions. He had previously been charged with indecent exposure and had been arrested for pickpocketing. A jury convicted Hopper of capital murder in March 1992 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in November 1997. All of his subsequent appeals in state and federal court were denied.

Joy Aylor was arrested in September 1988, but was released on $140,000 bail. The night before her 1990 murder trial was to begin, she emptied her bank accounts and fled to Canada with her attorney, who was also reportedly her lover. After the lawyer was arrested in Canada on a drug charge, Aylor then fled to Mexico, then Europe. She settled around Nice, France, living under the alias Elizabeth Sharp. Her identity was exposed after she became involved in a minor traffic accident while driving a rental car. She was arrested in March 1991. The French government refused to extradite her, however, because of its opposition to capital punishment. Aylor was returned to Texas in December 1993 after the state pledged that she would not face the death penalty. She was convicted of capital murder and was sentenced to life in prison.

William Garland and Brian Lee Kreafle also received life sentences.

In 1993, Gailiunas' parents won a $35 million lawsuit against Joy Aylor for her responsibility in their daughter's death.

Aylor was also found to be behind the 1986 attempted murder of her husband. Larry Aylor won a $31.2 million lawsuit against his wife in 1990. The two gunmen involved in that crime were also apprehended, convicted, and sent to prison.

The long, intricate story was made into two books: "To Hatred Turned: A True Story of Love and Death in Texas" by Ken Englade in 1993, and "Open Secrets: A True Story of Love, Jealousy, and Murder" by Carlton Stowers in 1994. It also inspired a made-for-television movie, "Telling Secrets," starring Cybill Shepherd in 1993.

"I have made a lot of mistakes in my life," Hopper said in his last statement. "The things I did changed so many lives. I can't take it back. It was an atrocity. I am sorry. I beg you forgiveness. I know I am not worthy of it." Hopper then told his parents that he loved them and said a brief prayer. The lethal injection was then started. He was pronounced dead at 6:22 p.m.

National Coalition to Abolish the Death Penalty

George Hopper Jr. - TEXAS - March 8, 2005

Texas March 8, 2005 The state of Texas is scheduled to execute George Hopper Jr. March 8 for the 1983 murder of Rozanne Gailiunas. Joy Davis Aylor hired Hopper through a series of middle men to kill Gailiunas who was said to be having an affair with her husband. Aylor fled to France for several years before French officials agreed to extradite her on the condition that prosecutors promise not to seek the death penalty. Aylor, who was able to hire a high profile defense attorney to represent her, received a prison term rather than the death penalty.

According to court records, at trial Hopper focused on the fact that he was not permitted to have a lawyer present during all of the periods where he was being questioned. He argued this rendered his confession inadmissible. After the trial, it was revealed that the lead police investigator and key witness against Hopper, Captain Morris McGowan, signed a book deal for $109,000 for helping author Carlton Stowess write a book entitled Open Secrets about the events leading up to the trial. McGowan said he didn’t tell prosecutors about the deal in part because “the district attorney’s office wouldn’t approve of it.”

Subsequently, the defense was not aware of McGowan’s monetary gain for his involvement in the case until after the trial. McGowan was never questioned about his motivations at trial. He also acknowledged some inconsistencies between Hopper’s police statement and evidence found at the crime scene. Please take a moment to write the state of Texas requesting that Hopper’s sentence be commuted to a prison term.

Houston Chronicle

"Convicted hit man put to death for role in Dallas case murder case." (AP March 8, 2005, 7:05PM)

HUNTSVILLE - An apologetic former auto insurance appraiser who authorities said collected $1,500 to kill a Dallas-area physician's wife more than two decades ago was executed Tuesday evening.

Asked by the warden if he had a final statement, George Anderson Hopper turned toward four members of his victim's family, including the son who discovered his mother's body, and said he was sorry. ``I have made a lot of mistakes in my life. The things I did changed so many lives. I can't take it back. It was an atrocity. I am sorry. I beg your forgiveness. I know I am not worthy of it,'' he said, his voice breaking with emotion. Then he turned his head toward a second window, where his parents were among those watching. He told them he loved them and thanked them ``for everything.'' Hopper, 49, said a brief prayer, which his mother repeated with him. He gasped a couple of times as the lethal drugs took effect. Eight minutes later at 6:22 p.m., he was pronounced dead.

Hopper was condemned for being the hit man in a complicated scheme initiated by a woman bitter because her soon-to-be ex-husband was dating the murder victim. Rozanne Gailiunas, 33, was killed in the October 1983 attack at her home in the Dallas suburb of Richardson. She had been raped, choked with pantyhose, shot twice in the head, had tissue jammed down her throat and was tied naked to a four-poster bed. Her then 4-year-old son found her unconscious. She died two days later.

It was years, however, before police could unravel the case, which became one of the most intricate and complex ever in Dallas County and took authorities to Canada, Mexico and Europe. ``Our family is certainly looking forward to closing this chapter,'' said Peter Gailiunas, whose wife was killed. Gailiunas was there but did not witness the execution with his son, now 25. Hopper's execution was the fourth this year in Texas.

The U.S. Supreme Court refused to stop the punishment. In late appeals, Hopper's lawyers had argued his confession was obtained improperly because detectives continued questioning him after he asked to be returned to his jail cell to think about what he wanted to do. Attorneys also contended Hopper, known to friends as ``Andy,'' had poor legal help in the early portions of his case.

Hopper was one of about a half-dozen people convicted of charges related to the scheme authorities said was hatched by Dallas socialite Joy Aylor, who fled the country just before her own murder trial. She was arrested in France years later and eventually was returned to Texas where she was convicted of capital murder and sentenced to life in prison.

Hopper had posed as a flower delivery man to get into his victim's house. ``It was just such a cunning murder plan,'' said Dan Hagood, who prosecuted both Hopper and Aylor. He described Hopper as ``a fellow who looks like the boy next door, ... one of those you wouldn't have a sense of danger.''

Hopper had no previous prison record but had been arrested in 1976 in Houston for indecent exposure and in 1984 for theft related to a pickpocket incident at a Richardson shopping mall. When initially questioned by police about the Gailiunas slaying, he fled and eluded detectives for six months.

Prosecutors said Aylor wanted Rozanne Gailiunas dead because the former Richardson nurse was dating and planned to marry Aylor's estranged husband. Gailiunas and her husband were separated, as were Aylor and her husband, a Dallas home builder. Joy Aylor fled to Canada with $200,000 and a new lover, a Dallas attorney, on the eve of her 1990 murder trial. After the lawyer was arrested in remote western Canada on a drug charge, Aylor disappeared to France. For two years she assumed a false identity as Elizabeth Sharp, living in a villa outside Nice. She was exposed after a rental car she was driving was involved in a minor traffic accident.

As part of their agreement with French authorities to return her to Texas, prosecutors didn't seek the death penalty in her case. Authorities said Aylor had contacted her brother-in-law, a pest control contractor, and put up $5,000 to arrange the slaying. He contacted an auto mechanic who hired Hopper. The men all got a piece of the money. Aylor's sister, the pest control contractor's wife, helped police by recording conversations implicating Aylor in the plot.

Reuters News

"Hitman Put to Death in 4th Texas Execution of Year." (Tue Mar 8, 2005 08:10 PM ET)

HUNTSVILLE, Texas (Reuters) - A hitman convicted of killing a woman in a murder-for-hire scheme apologized for his crime as he lay strapped to a gurney awaiting the lethal injection on Tuesday, the fourth execution this year in Texas. George Hopper, 49, was the 340th person executed since 1982 in Texas, the leading death penalty state.

He condemned for the murder of Rozanne Gailiunas on Oct. 4, 1983, in a hit arranged by the jealous wife of a man Gailiunas was dating. Prosecutors said Hopper bound Gailiunas, 33, to a bed in her Dallas area home, then strangled her and shot her twice in the head. He received $1,500 for the hit, they said.

In a final statement while strapped to a gurney in the Texas death chamber, Hopper apologized for the crime. "I have made a lot of mistakes in my life. The things I did changed so many lives. I can't take it back, it was an atrocity. I am sorry," he said.

For his final meal, Hopper requested six eggs over easy, 10 biscuits, 12 pieces of bacon, a bowl of grits, white gravy, strawberry preserves, french fries, fried chicken and chocolate meringue pie.

Texas currently has nine more executions scheduled this year.

Dallas Morning News

"Hit man executed for role in Dallas case ." (06:57 PM CST on Tuesday, March 8, 2005 )

HUNTSVILLE, Texas (AP) -- An apologetic former auto insurance appraiser who authorities said collected $1,500 to kill a Dallas-area physician's wife more than two decades ago was executed Tuesday evening.

Asked by the warden if he had a final statement, George Anderson Hopper turned toward four members of his victim's family, including the son who discovered his mother's body, and said he was sorry. "I have made a lot of mistakes in my life. The things I did changed so many lives. I can't take it back. It was an atrocity. I am sorry. I beg your forgiveness. I know I am not worthy of it," he said, his voice breaking with emotion. Then he turned his head toward a second window, where his parents were among those watching. He told them he loved them and thanked them "for everything." Hopper, 49, said a brief prayer, which his mother repeated with him. He gasped a couple of times as the lethal drugs took effect. Eight minutes later at 6:22 p.m., he was pronounced dead.

Hopper was condemned for being the hit man in a complicated scheme initiated by a woman bitter because her soon-to-be ex-husband was dating the murder victim. Rozanne Gailiunas, 33, was killed in the October 1983 attack at her home in the Dallas suburb of Richardson. She had been raped, choked with pantyhose, shot twice in the head, had tissue jammed down her throat and was tied naked to a four-poster bed. Her then 4-year-old son found her unconscious. She died two days later.

It was years, however, before police could unravel the case, which became one of the most intricate and complex ever in Dallas County and took authorities to Canada, Mexico and Europe. "Our family is certainly looking forward to closing this chapter," said Peter Gailiunas, whose wife was killed. Gailiunas was there but did not witness the execution with his son, now 25.

Hopper's execution was the fourth this year in Texas.

The U.S. Supreme Court refused to stop the punishment. In late appeals, Hopper's lawyers had argued his confession was obtained improperly because detectives continued questioning him after he asked to be returned to his jail cell to think about what he wanted to do. Attorneys also contended Hopper, known to friends as "Andy," had poor legal help in the early portions of his case.

Hopper was one of about a half-dozen people convicted of charges related to the scheme authorities said was hatched by Dallas socialite Joy Aylor, who fled the country just before her own murder trial. She was arrested in France years later and eventually was returned to Texas where she was convicted of capital murder and sentenced to life in prison.

Hopper had posed as a flower delivery man to get into his victim's house. "It was just such a cunning murder plan," said Dan Hagood, who prosecuted both Hopper and Aylor. He described Hopper as "a fellow who looks like the boy next door, ... one of those you wouldn't have a sense of danger."

Hopper had no previous prison record but had been arrested in 1976 in Houston for indecent exposure and in 1984 for theft related to a pickpocket incident at a Richardson shopping mall. When initially questioned by police about the Gailiunas slaying, he fled and eluded detectives for six months.

Prosecutors said Aylor wanted Rozanne Gailiunas dead because the former Richardson nurse was dating and planned to marry Aylor's estranged husband. Gailiunas and her husband were separated, as were Aylor and her husband, a Dallas home builder. Joy Aylor fled to Canada with $200,000 and a new lover, a Dallas attorney, on the eve of her 1990 murder trial. After the lawyer was arrested in remote western Canada on a drug charge, Aylor disappeared to France. For two years she assumed a false identity as Elizabeth Sharp, living in a villa outside Nice. She was exposed after a rental car she was driving was involved in a minor traffic accident. As part of their agreement with French authorities to return her to Texas, prosecutors didn't seek the death penalty in her case.

Authorities said Aylor had contacted her brother-in-law, a pest control contractor, and put up $5,000 to arrange the slaying. He contacted an auto mechanic who hired Hopper. The men all got a piece of the money. Aylor's sister, the pest control contractor's wife, helped police by recording conversations implicating Aylor in the plot.

Ft. Worth Star-Telegram

"Execution set for Tuesday in complex Dallas murder case," by Michael Graczyk. (AP Mar. 7, 2005)

HUNTSVILLE - A man convicted of strangling and shooting the wife of a suburban Dallas physician is set to die, closing a chapter in one of the area's most complex and prolonged murder cases.

Former auto insurance appraiser George Anderson Hopper faced lethal injection Tuesday for the 1983 slaying of Rozanne Gailiunas, 33, who was choked with pantyhose and shot twice in the head. The mortally wounded woman - raped, tissue stuffed down her throat, tied to a four-poster bed - was found in her Richardson bedroom by her then 4-year-old son. She died two days later. Hopper, 49, who evidence showed received some $1,500 for the killing, would be the fourth Texas inmate executed this year if his appeals fail.

Defense attorneys argued Hopper's confession was obtained improperly because detectives continued questioning him after he asked to be returned to his jail cell to think about what he wanted to do. "Any reasonable interpretation of the English language clearly indicated that (Hopper) invoked his constitutional protections," Roy Greenwood said in his petition pending before the U.S. Supreme Court. Hopper's initial trial lawyer also offered little help, the appeal contends.

Hopper is the last link in a complicated chain that prosecutors said was initiated by Dallas socialite Joy Aylor. She wanted Gailiunas dead because Gailiunas was dating Aylor's estranged husband, testimony showed. Gailiunas and her husband, Peter Gailiunas Jr., were separated, as were Aylor and her husband, Larry Aylor, a Dallas home builder. Rozanne Gailiunas planned to marry Larry Aylor, according to testimony.

"Unfortunately, there's not anything that's ever going to undo or be able to repair the heartache and grief that this act has caused so many of us," said Dr. Gailiunas, who has remarried and practices in Dallas. "But nevertheless, to the extent this will at least start that healing process, we'd like to get it over with."

Joy Aylor fled to Canada with $200,000 and her new lover, a Dallas attorney, on the eve of her 1990 murder trial. After the lawyer was arrested in remote western Canada on a drug charge, Joy Aylor disappeared to France. For two years she assumed a false identity as Elizabeth Sharp, living in a villa outside Nice. She was located after her lover's a rental car was involved in a minor traffic accident. Joy Aylor was imprisoned for two years while prosecutors negotiated with the French government. After she was returned to Texas, she was convicted and sentenced to life in prison in 1994. Under terms of the extradition, prosecutors agreed to not pursue the death sentence, which is illegal in France.

Hopper, who has been on death row since 1992, and Aylor, imprisoned near Gatesville, declined recent interview requests. Others related to the case also are in prison. Buster Matthews was sentenced to life for trying to kill Joy Aylor's husband in a separate 1986 sniper attack financed by Joy Aylor. Bill Garland, a former pest control contractor, pleaded guilty in 1995 to accepting money from Joy Aylor to arrange that unsuccessful murder attempt. Garland also pleaded guilty and received 30 years in prison for using money from her to hire Hopper. Brian Lee Kreafle, a former auto mechanic, was sentenced to 30 years after pleading guilty to soliciting capital murder and admitting to transferring instructions and money to Hopper.

Authorities said Joy Aylor contacted Garland about arranging the slaying. Garland hired Kreafle, who hired Hopper. It was Carole Garland, his wife and Joy Aylor's sister, who tipped police about the plot and helped detectives by recording conversations implicating Joy Aylor.

When Hopper initially was questioned, he fled police during an interview under the guise of needing a drink of water. He was picked up six months later, amid a nationwide manhunt. "Most crimes happen in a few moments of time," recalled Kevin Chapman, the lead prosecutor in the trials of Hopper and Aylor. "This one - the crime, the coverup - spanned five years. I had a notebook with 60 pages of dates, just dates of events, a ton of bank records, phone records, file cabinets full of stuff."

Chapman, now in private business in Austin, said it was remarkable the principles all had jobs and came from good families with solid backgrounds. Joy Aylor, who worked as a decorator, had wealth and social standing. He said Hopper, married and the father of two daughters, was likable and charismatic. "I viewed it as a thrill killing," Chapman said. "He stripped her, tried to have sex with her, for $1,500. It was a power thrill deal. "It should have been a lot different. He should have been a productive member of society."

Hopper v. Dretke, 106 Fed.Appx. 221, 2004 WL 1663599 (5th Cir. 2004)(Habeas)

Background: Following final state court appellate affirmance of his conviction of capital murder and his sentence of death, and denial of his state court petition for habeas corpus, petitioner sought writ of habeas corpus in federal court. The United States District Court for the Northern District of Texas denied petition and refused to grant certificate of appealability (COA). Petitioner appealed.

Holdings: The Court of Appeals, Dennis, Circuit Judge, held that:
(1) COA would issue with respect to defense counsel's conduct in connection with post-indictment polygraph examination of and interview with defendant;
(2) defense counsel's failure to be present at, or to negotiate agreement with prosecutors to limit scope of, polygraph examination and interview was reasonable strategic choice;
(3) COA would issue with respect to claimed Miranda violation;
(4) defendant's question to interrogating officers was too ambiguous to invoke right to silence or right to counsel;
(5) failure to disclose investigating detective's book deal did not implicate defendant's right to confront adverse witnesses or to disclosure of impeachment evidence; and
(6) existence of book deal did not constitute structural error warranting reversal. Certificate of appealability granted in part and denied in part; affirmed.

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 Hopper's petition in its entirety and refused to grant a certificate of appealability ("COA").

Hopper now seeks a COA on three [FN1] 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, [FN2] 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. Washington [FN3] 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 district court's denial of habeas relief as to the ineffective assistance and Miranda claims.

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. 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 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 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. [FN4] Hopper's theory, supported by an expert witness, was that the Thorazine exacerbated the brain swelling that Rozanne *226 would have suffered from the bullet wound and made that brain swelling ultimately fatal. The prosecution presented its own expert testimony that contradicted Hopper's causation theory.

FN4. Although Rozanne had been shot twice in the head, one of the bullets lodged in her jawbone without penetrating her skull.

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 a writ of habeas corpus in federal district court, which the court denied.

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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.

Hopper v. Cockrell, Not Reported in F.Supp.2d (2002) (Federal Habeas)

FISH, Chief J.
Petitioner George Anderson Hopper has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . For the reasons stated herein, the application is denied.

I. PROCEDURAL BACKGROUND

Petitioner was convicted of capital murder and sentenced to death. His conviction and sentence were affirmed on direct appeal. Hopper v. State, No. 71,477 (Tex.Crim.App., Nov. 5, 1997). [FN1] Petitioner also filed an application for a writ of habeas corpus in state court. The Texas Court of Criminal Appeals denied habeas relief in an unpublished order. Ex parte Hopper, No. 23,163-02 (Tex.Crim.App., Mar. 1, 2000). Petitioner then filed this action in federal court. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court.

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During suppression hearings held during trial, as well as at the trial itself, [FN2] the following relevant facts regarding petitioner's various statements were adduced. [FN3] After an extensive multi-state investigation which took several months, petitioner was arrested by the Richardson Police Department on December 20, 1988 in connection with the murder of Rozanne Gailiunas. (SF-LXVI 5). Gailiunas had been discovered in her home on October 4, 1983 with two gunshot wounds to the head. She died three days later. (SF-LXIII: 145-46, 148-51, 206). The case remained unsolved until 1988 when the Richardson Police Department was given information that a woman named Joy Aylor had hired someone to kill Gailiunas. After some investigation, the police determined that the money given as payment for the murder had passed through several people's hands. The last person in this chain was petitioner, and the police began searching for petitioner in the summer of 1988. But when petitioner was arrested in December of 1988, the police did not know whether he had committed the murder, or whether he had passed some or all of the money he received to another person who had then murdered Gailiunas. (SF-LXVI 16; LXX 6-14, 109, 116-18).

FN2. The facts surrounding petitioner's statements given in February of 1989 were elicited from the relevant parties at both the pre-trial hearing and during trial, with similar if not identical testimony given at both. The circumstances surrounding the petitioner's interrogation on December 20, 1988, however, were not testified to at the pre-trial suppression hearing. Instead, these facts were elicited through the cross-examination of Detective Morris McGowan during trial, after defense counsel were provided a copy of the transcript of this interrogation. (SF-LXXIX 52- 62, 69-110, 117-46).

FN3. See generally the trial court's findings of fact and conclusions of law signed and entered March 10, 1994, contained in Supplemental Transcript at 1-10.

On December 20, 1988, while in police custody at the Richardson Police Department, petitioner was questioned by the lead detective in the case, Morris McGowan. This interrogation was audio taped. McGowan began the interrogation by reading petitioner his Miranda rights. During the interrogation, petitioner several times mentioned his belief that he needed to speak to an attorney before dealing with the police. Nonetheless, McGowan continued to talk to petitioner, assuring him that anything he said in the conversation would be off the record and inadmissible in court. Petitioner made no inculpatory statements to McGowan that day. Instead, the two spoke about petitioner's life on the run and his concern for his wife, his children, and his girlfriend, as well as McGowan's desire to have petitioner cooperate with the police. When specifically asked by McGowan during the interview if he had shot "the girl," petitioner answered "no." (SF-LXXXX Defense Record Exhibits 5 and 6).

On December 21, 1988, petitioner was arraigned by a magistrate judge and advised of his Miranda rights. He was not appointed an attorney during the arraignment, nor did he request that one be appointed for him. (SF-LXVIII 26- 31). On December 22, 1988, McGowan received a message that he should contact the jail because petitioner wanted to see him. (SF-LXVI 63). When McGowan spoke to petitioner, petitioner told McGowan that he was given money to kill Gailiunas but passed $1000 of the money, as well as the information about Gailiunas, to a drug dealer he knew named Chip, who had agreed to kill her. (SF-LXVI 57-58, 63-64). Petitioner also told McGowan where he had last seen Chip and gave a description of him. (SF-LXVI 65). McGowan assured petitioner that anything he said during this interview would not be used against him. (SF-LXVI 64).

On December 27, 1989, Jan Hemphill was appointed to represent petitioner. The two met several times during the next two months. (SF-LXXXX Defendant's hearing exhibit # 2). In January, the lead prosecutor informed Hemphill that the state was interested in prosecuting and seeking the death penalty against the shooter and the person who initially hired the killer. The prosecutors were thus willing to work with the middle-men in the scheme. (SF-LXVI 149-50; LXVII 54). On February 21, 1989, petitioner told McGowan he had decided to cooperate with the police. Petitioner informed McGowan that he had spoken with Hemphill and that Hemphill had given permission for petitioner to contact the police. (SF-LXVI 6). McGowan called one of the prosecutors, who in turn verified with petitioner's attorney that the police had permission to speak to petitioner and to verify his story with a polygraph examination. (SF-LXVI 135, 137-38; LXVII 59-61). On February 22, 1989, petitioner met with McGowan, who again informed petitioner of his Miranda rights. Petitioner then completed a six-page written statement in which he outlined how he received $1500 to kill Gailiunas and gave $1000 of the money to a man named Chip. McGowan informed petitioner that this statement would have to be verified by a polygraph examination, which was scheduled for February 27, 1989. (SF-LXVI 7-12).

Prior to the polygraph examination, petitioner was again given his Miranda rights by the polygraph technician, Richard Strauss. Petitioner then underwent a polygraph examination, which he failed. [FN4] After being told that he failed the examination, petitioner was questioned once again by McGowan. McGowan advised petitioner of his Miranda rights yet again and asked him tell his story once more. After petitioner recounted the "Chip" story again, McGowan stated he did not believe petitioner was telling the whole truth. McGowan then showed him a picture of Chip and informed petitioner the police were in the process of finding Chip. McGowan asked petitioner what would happen if Chip were questioned about the murder and denied any involvement. Petitioner stated that it would lead "back to him" and asked McGowan if he could "go back and think about it." McGowan replied that he "wanted it now." Petitioner then admitted killing Gailiunas. Petitioner subsequently gave both audiotaped and videotaped statements in which he admitted killing the victim for $1500. His written, audio taped, and videotaped statements were admitted into evidence at trial. (SF-LXVI 16-30).

FN4. Portions of the pre-examination interview with Strauss were admitted into evidence, but all statements and references to the fact that a polygraph examination was given were not. (SF-LXXXX St. Exh. 56B(1)).

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VI. THE BOOK DEAL

In his fifth through seventh grounds for relief, petitioner asserts that his constitutional rights were violated because defense counsel was not informed that the lead detective and primary witness for the state, Morris McGowan, had signed an agreement prior to trial to receive monetary compensation for his assistance in writing a true crime book about the Gailiunas murder. Specifically, petitioner contends that the failure to disclose this information to defense counsel: (1) violated his due process rights under Brady v.. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). (2) violated his rights under the confrontation clause of the Sixth Amendment; and (3) constituted a structural error not subject to a harmless error review.

A. Applicable Law

The suppression of evidence favorable to the accused where the evidence is material to either guilt or punishment violates the accused's due process rights. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Under Brady, the prosecution has the duty to turn over to the defense both exculpatory and impeachment evidence. United States v. Bagley, 473 U.S. 667, 682, 683-84, 105 S.Ct. 3375, 3384-85, 87 L.Ed.2d 481 (1985). Evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Id., 473 U.S. at 682, 105 S.Ct. at 3383 . A reasonable probability of a different result is shown when the suppression of evidence undermines confidence in the verdict. Id. The confrontation clause of the Sixth Amendment guarantees a defendant the right to physically face those who testify against him and the right to conduct cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, . The confrontation clause also guarantees the opportunity for effective cross-examination. Delaware v. Fensterer, 474 U.S. 15, 19-20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) (per curiam).

B. Discussion

Prior to the beginning of testimony at the trial of petitioner's co-defendant, Joy Aylor, the prosecutors became aware that the lead detective in both cases, Morris McGowan, had entered into a deal to assist in writing a true crime novel about the facts surrounding the case. Judge Pat McDowell, the trial judge in the Aylor case, who was also the trial judge in petitioner's case, conducted a hearing on this issue prior to the Aylor trial. McGowan was questioned about the book deal by both the prosecution and the defense. During the state habeas process in this case, Judge McDowell took judicial notice of the relevant portions of the record from the Aylor trial and included those portions of the record in the state habeas transcript. (St.Hab. Tr. 669-791, 926). Through these excerpts from the Aylor trial, along with the actual contract concerning the book, the following relevant facts have been gleaned from the state habeas record.

The book deal began when McGowan spoke to an attorney friend in June of 1988, after Joy Aylor had been arrested but before petitioner had been identified as a suspect. The friend mentioned that the case would make an interesting book. A week later, McGowan contacted the friend about the possibility of someone writing a book about the case. (St.Hab. Tr. 669-670, 693, 695-96). This friend subsequently contacted the writer, Carlton Stowers. McGowan met with Stowers in July of 1988. No decision about writing a book was made at that time. (St.Hab. Tr. 672, 702, 704). In January of 1989, McGowan met with another true crime author, who offered him $75,000 to help with the writing of a book. McGowan ultimately declined this offer. (St.Hab. Tr. 706, 708-10). Stowers and McGowan continued to speak periodically. (St.Hab. Tr. 674). In late 1989 or early 1990, McGowan and Stowers entered into an agreement to collaborate on a book. (St.Hab. Tr. 711).

In August of 1990, Stowers sent McGowan a book proposal, along with a letter agreement setting out the terms and conditions of a financial agreement. (St.Hab. Tr. 714). McGowan did not read this information initially and told Stowers that he did not want to read any of the financial information at that point. (St.Hab. Tr. 714-15). In June of 1991, McGowan met with an attorney, Don Crowder, and gave Crowder power of attorney to negotiate, on his behalf, a contract with Stowers. (St.Hab. Tr. 690, 725). The contract was signed with Stowers in July 1991. (St.Hab. Tr. 690, 185). The gist of this contract, unknown to McGowan at that time, was that McGowan would receive a $12,500 advance against royalties when the book was halfway finished, another $12,500 advance when the book was completed, fifty percent of any future profit from the book, and fifty percent of any profit from any future movie or mini-series based on the book. (St.Hab. Tr. 606, 728-31). McGowan acknowledged at Aylor's trial, however, that although he did not know the specifics of the contract, he anticipated that he would receive fifty percent of any profit from the book. (St.Hab. Tr. 728). In a meeting with both his attorney and Stowers prior to petitioner's trial, McGowan agreed to speak with Stowers about the book after petitioner's trial. McGowan agreed to do so because, at that point, Joy Aylor was still at large and he did not believe she would be returning. (St.Hab. Tr. 732-33). During the trial, McGowan had dinner with Stowers and a woman from a film production company, who attended the trial along with Stowers. They did not discuss McGowan's investigation of the case. (St.Hab. Tr. 734-35). After petitioner's trial ended in March of 1992, McGowan met with Stowers about the case and discussed the investigation in detail. (St.Hab. Tr. 736-38). In July of 1992, McGowan received a check for $55,000. (St.Hab. Tr. 739-41). By the time of Joy Aylor's trial in 1994, McGowan had received approximately $109,500, including a fee and royalties from a fictionalized mini-series based on the book. (St.Hab. Tr. 742-46). McGowan never told the prosecutors about this agreement until he was specifically asked about it in 1994, before Joy Aylor's trial began, because he knew that the prosecutors would not approve of the agreement. (St.Hab. Tr. 622, 747). At Aylor's trial, McGowan testified that his financial interest in the book never affected his investigation of the case. (St.Hab. Tr. 751).

1. Brady Claim

Respondent concedes that the evidence of the book deal was evidence that could have been used to impeach McGowan's testimony at petitioner's trial and that this evidence was withheld from the defense. The only question, therefore, is whether this evidence constitutes material impeachment evidence.

The evidence shows that McGowan became interested in collaborating with a writer about the case of the death of Rozanne Gailiunas in 1988. Although he spoke to a couple of authors about the possibility, he did not enter into an oral agreement to do so until after the end of 1989 or the beginning of 1990-- several months after petitioner confessed to him. The written agreement was signed prior to petitioner's trial, in which McGowan was a key prosecution witness. Petitioner contends that evidence of the book deal is material because it may have affected McGowan's investigation and trial testimony by providing him with a financial incentive to see that petitioner was arrested, tried, and convicted.

McGowan's behavior in entering into the book deal and failing to disclose it to the prosecutors is certainly not laudable. Nothing in the record, however, indicates that McGowan had any financial incentive that would influence the methods he used and choices he made in investigating the case or in obtaining petitioner's conviction. McGowan did not enter into an agreement until several months after petitioner confessed to the murder. He did not sign a written contract until several months later. There is, therefore, no evidence that this book deal was a financial incentive for McGowan during the five years that he investigated the case, up to and including the point where petitioner confessed. Indeed, two different authors expressed an interest in writing a book about the case before petitioner was identified as a suspect, indicating that the success of a book about the story would not hinge on petitioner's participation in the crime.

Moreover, none of the money McGowan anticipated receiving was tied to petitioner's conviction. Rather, it was based on when the book was completed and on sales of the book and future movies. Petitioner argues that McGowan had a financial interest in insuring that he was convicted because this would increase the likelihood of the book's success on the market. In addressing this claim, the state habeas court observed that Stowers' book focused on Joy Aylor. Indeed, the details of petitioner's trial are not recited until the epilogue and cover only four and a half pages of the 357 pages in the book. (St.Hab. Tr. 928, # 121). Petitioner has not argued, much less presented clear and convincing evidence, that these factual findings are incorrect. The record therefore indicates that petitioner's guilt was insignificant to the success of Stowers' book.

Further, in determining the materiality of the evidence withheld, a court should look to whether the testimony was strongly corroborated by other evidence. Kopycinski v. Scott, 64 F.3d 223, 226 (5th Cir.1995). A defendant must show that the evidence withheld could reasonably be taken to put the case in a different light so as to undermine confidence in the verdict. Gibbs v. Johnson, 154 F.3d 253, 256 (5th Cir.1998) , cert. denied, 526 U.S. 1089, 119 S.Ct. 1501 (1999).

Much of McGowan's testimony was corroborated by other evidence. Brent Tourangeau testified that he was present when petitioner made his initial full confession on February 27, 1989. He heard petitioner ask to "go back and think about it." (SF-LXXI 101-10). As noted earlier, the subsequent audio taped and videotaped confessions petitioner gave on February 27 were admitted into evidence, along with the written statement petitioner gave on February 22, 1989. (SF-LXXXX St. Exh. 55, 56 & 56(A)). Portions of the pre-polygraph examination, in which he repeated the "Chip" story, were admitted into evidence. (SF-LXXXX St. Exh. 56B(1)). In his confessions, petitioner admitted that he used a friend's gun and explained how he obtained it. The testimony of that friend, Terry Harmon, along with a police officer who responded to the scene of the murder and a firearm specialist, established that Harmon's gun was used to kill the victim. (SF-LXIV 62-65; LXXI 72-80, 151). In his confession, petitioner explained that he gained entrance into the house by posing as a flower delivery man and that he left a plant in the house on the floor. This was corroborated by photographs from the house showing a plant sitting on the floor of the living room. (LXXXIX St. Exh. 11, 21). Finally, two of petitioner's friends testified that petitioner confessed to them that he had murdered the victim. Petitioner's letter confession to one of the friends was admitted into evidence. (SF-LXVIII 68-79; LXXXVII 10-77; LXXXX St. Exh. 63A).

In light of this corroborating evidence, the suppression of information regarding McGowan's book deal cannot reasonably be seen to have put petitioner's case in a different light so as to undermine confidence in the guilty verdict. In denying this ground for relief, the state habeas court initially concluded that petitioner had not established McGowan's potential bias. (St.Hab. Tr. 929-30, # 127-28). Alternatively, the state habeas court concluded that evidence of McGowan's potential bias was not material due to the corroborating evidence of petitioner's confessions and guilt. (St.Hab. Tr. 933- 35). These conclusions are not unreasonable.

2. Confrontation Clause Claim

Petitioner also contends that he was denied his constitutional rights under the confrontation clause because his attorneys were not able to cross-examine McGowan about the book deal. As support, petitioner cites Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In Davis, the Supreme Court ruled that Alaska's state policy of not disclosing juvenile court records violated Davis' right to cross-examine a prosecution witness at his burglary trial for his possible bias when the witness himself was on juvenile probation for two separate burglaries. The Court concluded that Davis was entitled to the reversal of his burglary conviction because there had been "constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." Id., 415 U.S. at 318, 94 S.Ct. at 1111, citing Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968). However, the Supreme Court has subsequently held that a confrontation clause violation is subject to a harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986) .

Other than citing to Davis v. Alaska, petitioner does not explain why the book deal cannot be addressed fully under the standard outlined in Brady and its progeny. Contrary to petitioner's reliance on Davis v. Alaska, the Supreme Court in Bagley specifically differentiated between the failure of the government to disclose impeachment evidence and the direct restriction on cross-examination that occurred in Davis. Bagley, 473 U.S. at 677-78, 105 S.Ct. at 3381 . The Court then went on to hold that suppression of impeachment evidence amounts to a constitutional violation only if it deprives a criminal defendant of a fair trial. This occurs only if the evidence is material to the case. Id., 473 U.S. at 681-82, 105 S.Ct. at 3383. Clearly, the Supreme Court has specifically rejected the extension of its confrontation clause case law to circumstances where a defendant asserts that impeachment evidence has been withheld by the prosecution.

The state habeas court concluded that petitioner's confrontation clause claim was without merit because he failed to establish that the book deal showed any bias by McGowan and because any denial of the right of confrontation was harmless. (St.Hab. Tr. 936). These conclusions did not result in a decision that is contrary to clearly established federal law.

3. Structural Error Claim

Finally, petitioner asserts that McGowan's behavior in accepting financial remuneration for his assistance in writing a book about the case violated his due process and equal protection rights under the Fourteenth Amendment and constituted "structural error" requiring the reversal of his conviction and the granting of a new trial. He asserts that, unlike a constitutional error that occurs during the presentation of the case to the jury, the book deal was an error which cannot be properly analyzed under a harmless error standard and instead requires an automatic reversal of the conviction.

As support for this claim, petitioner relies on various cases where attorneys were paid by third parties, where attorneys had media deals, and where government witnesses had received some sort of payment for testifying. Petitioner's assertion, however, is not supported by the cases he cites. As petitioner acknowledges, none of these cases holds, or even suggests, that his allegations amount to "structural error" that is immune to a harm analysis. To the contrary, the Fifth Circuit has specifically held that a claim that counsel had a "media deal" with the client in order to be paid for his work must be addressed using the Strickland standard, under which prejudice must be shown. Beets v. Scott, 65 F.3d 1258, 1272-73 (5th Cir.1995), cert. denied, 517 U.S. 1157, 116 S.Ct. 1547 (1996). The Fifth Circuit has also concluded that reversal of a conviction where contingent fees are paid to a government witness is warranted only where an informant is paid to target a particular defendant before the crime is committed. United States v. Yater, 756 F.2d 1058, 1067 (5th Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 225 (1985) .

In short, none of the cases cited by petitioner supports his claim that, as a matter of public policy, his conviction should be reversed because a police investigator in the case signed a book deal before his trial began. Moreover, the Supreme Court has acknowledged only a limited set of circumstances involving structural error. These include where there has been a total deprivation of counsel or where the trial judge was not impartial. Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). Thus, there is no support in Supreme Court precedent for petitioner's contention that the structural error doctrine should be extended to his case.

Nor is petitioner entitled to relief under a harmless error standard. Under this standard, a petitioner must prove that an error had a "substantial and injurious effect or influence in determining the jury's verdict." McGowan's book deal must, therefore, be analyzed in the context of its effect on petitioner's trial--not, as petitioner urges, as a bad act committed by a public official. Its effect on the trial was defense counsel's inability to question McGowan about his potential bias because of the book deal. The Brady/Bagley materiality standard, however, is even stricter than the Brecht standard. Kyles v. Whitley, 514 U.S. 419, 435-36, 115 S.Ct. 1555, 1566-67, 131 L.Ed.2d 490 (1995). Because this court has already determined that the book deal evidence was not, under Brady, material evidence requiring a reversal of this conviction, there is no need to re-evaluate the harm under the Brecht standard.

Petitioner raised this issue in his state habeas application. The state court concluded that petitioner was not entitled to relief since none of the case law cited supported petitioner's contention that his conviction should be overturned due to McGowan's book deal. (St.Hab. Tr. 944, 950). This conclusion did not result in a decision contrary to clearly established federal law. Petitioner's fifth through seventh grounds for relief are overruled.

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Petitioner's application for writ of habeas corpus is DENIED.