     Case: 08-40802     Document: 00511007417          Page: 1    Date Filed: 01/19/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          January 19, 2010

                                     No. 08-40802                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



STEVEN RICHARD HORNER

                                                   Petitioner – Appellant
v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division

                                                   Respondent – Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:07-CV-336


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Texas prisoner Steven Richard Horner appeals the district court’s denial
of habeas relief on his claim that he was denied counsel in violation of the Sixth
Amendment. For the following reasons, we affirm the denial of relief.




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 08-40802   Document: 00511007417      Page: 2   Date Filed: 01/19/2010

                                  No. 08-40802

                        FACTS AND PROCEEDINGS
      In 2000, Horner was indicted for aggravated sexual assault. He was
accused of sexual contact with a child under fourteen identified as “C.S.” The
victim, her mother, and her younger sister subsequently died in an unexplained
house fire. The original indictment was dismissed as a result, but Horner was
later re-indicted for the same offense in February 2001.
      While awaiting trial, Horner was incarcerated at the San Patricio County
Jail. James Jones was his cell neighbor, and, beginning in early April 2001,
Jones developed a relationship with Horner. They spoke about several topics,
including religion and their jobs, backgrounds, and families.       According to
Jones’s trial testimony, Horner said that he had “got” C.S. in various locations,
including a cemetery, a parking lot, a back road, and a car wash. Jones testified
that Horner stated that, following this latter assault, “he had to go and clean up
the car and [the girl],” and that although she fought against him a few times, she
eventually relented when Horner threatened to hurt her mother and sister.
During one of their conversations, Horner stated that he had given C.S. a
sexually transmitted disease, that he had contracted it from her mother, and
that “it was just staying in the family.” At no time during his testimony did
Jones specify when Horner had made the various inculpatory statements.
      Prior to trial, Horner obtained documents showing that Jones agreed to
cooperate with the police in investigating the deaths of the victim and her
family. Horner appears to have been a target of this investigation. During trial,
Jones testified that he did not approach authorities until after Horner had made
statements inculpating himself on the sexual assault charge.         Horner also
obtained a copy of Jones’s notes, recounting one of their conversations in which
Horner admitted to “hav[ing] sex” with the girl. Although Jones ultimately
received probationary sentences for two charges pending against him, he averred
that his trial testimony was provided out of concern for his own daughters.

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      After hearing testimony from additional witnesses, the jury convicted
Horner and he was sentenced to ninety-nine years’ imprisonment.                 The
conviction was affirmed on direct appeal by the Texas Court of Appeals, Horner
v. State, 129 S.W.3d 210 (Tex. Ct. App. 2004), and the Texas Court of Criminal
Appeals denied further review. Horner filed an application for postconviction
relief in state court, claiming, inter alia, that the admission of Jones’s testimony
violated his Sixth Amendment right to counsel because Jones was acting as an
agent of the police and deliberately elicited the inculpatory statements. The
Texas Court of Criminal Appeals denied the application without written reasons.
Horner then filed a federal habeas petition pursuant to 28 U.S.C. § 2254, to
which the State filed an answer and motion for summary judgment. In a written
opinion, the magistrate judge recommended denying relief on all claims. The
magistrate judge concluded that use of the statements at trial did not violate
Horner’s Sixth Amendment right to counsel because Horner had not shown that
Jones was acting as an agent of the police when Horner made the statements.
The recommendation was adopted by the district court, which entered judgment
in favor of the State. This court granted a COA on the Sixth Amendment issue.
                           STANDARD OF REVIEW
      “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and review its conclusions of law de novo, applying the same
standard of review to the state court’s decision as the district court.” Garcia v.
Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (quotation omitted). Horner filed
his habeas petition after the effective date of the Antiterrorism and Effective
Death Penalty Act (AEDPA), and the procedures and standards imposed by that
Act apply. Id. Under AEDPA, a “federal court’s collateral review of a state-court
decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “Because a federal
habeas court only reviews the reasonableness of the state court’s ultimate

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decision, the AEDPA inquiry is not altered when, as in this case, state habeas
relief is denied without an opinion.” Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th
Cir. 2003). In such a case, this court: “(1) assumes that the state court applied
the proper ‘clearly established Federal law’; and (2) then determines whether its
decision was ‘contrary to’ or ‘an objectively unreasonable application of’ that
law.” Id.
                                       DISCUSSION
       Horner’s claim falls under the Sixth Amendment rubric announced in
United States v. Massiah, which held that a defendant may not have “used
against him at his trial evidence of his own incriminating words, which federal
agents had deliberately elicited from him after he had been indicted and in the
absence of his counsel.” 377 U.S. 201, 206 (1964). “A Massiah violation has
three elements: (1) the Sixth Amendment right to counsel has attached; (2) the
individual seeking information from the defendant is a government agent acting
without the defendant’s counsel’s being present; and (3) that agent ‘deliberately
elicit[s]’ incriminating statements from the defendant.”                        Henderson v.
Quarterman, 460 F.3d 654, 664 (5th Cir. 2006) (alteration in original) (quoting
Massiah, 377 U.S. at 206).
       Texas does not dispute that Horner’s right to counsel had attached, but
denies that Jones was a “government agent” when Horner made the
incriminating statements.1          In its brief, the State concedes that an agency
relationship existed between it and Jones as of April 24, 2001, when Jones’s


       1
          The State’s alternative legal argument that Jones’s cooperation was in connection
with a homicide investigation separate from Horner's pending sexual assault charge, and that
this legitimate purpose cures any violation of the offense-specific right to counsel is foreclosed
by binding Supreme Court precedent. See Maine v. Moulton, 474 U.S. 159, 180 (1985)
(“[I]ncriminating statements pertaining to pending charges are inadmissible at the trial of
those charges, not withstanding the fact that the police were also investigating other crimes,
if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly
circumventing the accused’s right to the assistance of counsel.”).

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lawyer sent a letter to the district attorney informing him of Jones’s cooperation.
       Horner seizes on the April 24 inception of Jones’s cooperation and a copy
of Jones’s notes dated April 28 as evidence that Jones was an agent of the State
when the inculpatory statements were made. In the notes, Jones recounts
Horner’s responses to questions posed by Jones. According to the notes, Horner
admitted to “hav[ing] sex” with C.S. and speculated that if he had an STD, he
had gotten it from C.S.’s mother. A portion of Jones’s testimony appears to be
premised on this interaction. But Jones testified to additional incriminating
statements by Horner, and Horner makes no attempt to argue that these latter
confessions post-dated Jones’s cooperation. At best, Horner could show that
Jones’s testimony related to the content of the April 28 notes was erroneously
admitted.2
       Assuming that such an error occurred, it was harmless. Putting aside the
testimony based on the April 28 notes, there was overwhelming evidence of
Horner’s guilt, including the victim’s identification of Horner, medical evidence
linking Horner to the victim, and multiple inculpatory statements which are
unrelated to the April 28 notes and which are not shown to post-date Jones’s
cooperation. In view of that evidence, the introduction of the allegedly tainted
testimony did not have a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)) (internal quotation
marks omitted).
                                     CONCLUSION
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.



       2
        The district court found that the notes did not necessarily show that Horner confessed
after Jones began cooperating.

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