     Case: 16-70003        Document: 00515000359          Page: 1   Date Filed: 06/18/2019




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

                                                                                FILED
                                        No. 16-70003                        June 18, 2019
                                                                           Lyle W. Cayce
                                                                                Clerk
QUINTIN PHILLIPPE JONES,

                Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                Respondent - Appellee




                     Appeal from the United States District Court
                          for the Northern District of Texas


      ON PETITION FOR REHEARING AND REHEARING EN BANC
Before HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Treating the respondent-appellee’s petition for rehearing en banc as a
petition for panel rehearing, the petition is granted. We withdraw our prior
opinion 1 and substitute the following. We deny the petitioner-appellant’s
petition for panel rehearing.
      Quintin Phillippe Jones was sentenced to death by a Texas court. He now
appeals the district court’s denial of his federal application for post-conviction



      1   Jones v. Davis, 922 F.3d 271 (5th Cir. 2019).
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                                     No. 16-70003
relief, arguing that evidence was erroneously admitted at sentencing in
violation of his Fifth Amendment rights and that the district court improperly
denied him further investigative funding. We granted a certificate of
appealability, and now affirm the district court’s judgment and denial of
funding.
                                            I
      Jones beat his eighty-three-year-old great aunt, Berthena Bryant, to
death with a baseball bat after she refused to continue lending him money. 2
Fort Worth police arrested him the next day for outstanding traffic warrants
and possession of a controlled substance. They interviewed him twice about
Bryant’s murder. 3 The first time, Jones denied involvement. The second time,
he waived his Miranda rights and confessed to the murder—explaining that
he had an alter ego named James who lived in his head and who was
responsible for killing Bryant. 4
      Based on a lead from Jones’s sister, the police also investigated Jones’s
involvement in the murders of Marc Sanders and Clark Peoples. 5 Nine days
after Jones confessed to killing Bryant, a Texas Ranger and sheriff’s deputy
interrogated Jones about the Sanders and Peoples murders. 6 Jones told them
that he murdered Sanders and Peoples with his close friend Ricky “Red” Roosa.
He described how Roosa was the primary decision-maker and directed Jones
to take steps like restraining the victims and disposing of their bodies. 7
Authorities only informed Jones of his Miranda rights after this statement was




      2 Jones v. State, 119 S.W.3d 766, 770–71 (Tex. Crim. App. 2003).
      3 Id. at 771.
      4 Id.
      5 Id.
      6 Id.
      7 Id. at 781, 792–94.

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                                    No. 16-70003
written down and he was about to sign; he proceeded to sign it. 8 While Jones
was only tried for Bryant’s murder and this written statement was not
introduced at the guilt phase of his trial, it was introduced in the punishment
phase.
      A Texas jury convicted Jones of capital murder. At the punishment phase
of his trial, the jury was asked to answer Texas’s two special issues: “1) would
appellant probably commit future criminal acts of violence that would
constitute a continuing threat to society; and 2) whether, taking into
consideration all of the evidence, there are sufficient mitigating circumstances
to warrant a life sentence rather than a death sentence.” 9 Based on the jury’s
findings that Jones was likely to commit future acts of violence and that there
were insufficient mitigating circumstances to warrant a life sentence, the trial
court sentenced Jones to death. 10 The Texas Court of Criminal Appeals, or
CCA, affirmed his conviction and sentence, 11 and the United States Supreme
Court denied certiorari. 12 After allowing Jones multiple extensions of time to
file his state habeas petition, the CCA denied Jones’s application in 2005. 13
      Despite Jones’s persistent efforts to have substitute or additional counsel
appointed for his federal postconviction proceedings, the district court
appointed his state habeas attorney, Jack Strickland, in an order that also
directed Jones to “timely file his federal petition for writ of habeas corpus” and
required “[t]he petition [to] demonstrate that it is timely filed under 28 U.S.C.




      8  Id. at 772.
      9  Id. at 777.
       10 Id. at 770.
       11 Id.
       12 Jones v. Texas, 542 U.S. 905 (2004).
       13 Ex parte Jones, No. WR-57,299-01, 2005 WL 2220030, at *1 (Tex. Crim. App. Sept.

14, 2005) (per curiam).
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§ 2244(d)(1).” Strickland miscalculated the filing deadline and filed Jones’s
federal petition 149 days late. 14
       After Strickland did not contest the dismissal of the petition before the
district court or on appeal, 15 the district court appointed new counsel and
vacated its dismissal to give Jones a chance to respond. After an appeal and
remand concerning whether Jones was entitled to equitable tolling, the district
court initially found that no grounds existed for equitable tolling, then was
persuaded to reverse course after Jones moved for reconsideration.
       Jones filed an amended petition adding claims for relief, and sought
additional funding for investigative services. The district court denied Jones’s
investigative funding request, then denied each of Jones’s six claims for relief.
It denied Jones a certificate of appealability on all claims. We granted Jones a
certificate of appealability on his claim that the trial court violated his Fifth
Amendment rights by admitting an unmirandized confession at the




       14  While Strickland thought the deadline fell one year after the state court’s denial of
Jones’s habeas petition, the correct deadline was one year after the denial of Jones’s petition
for certiorari on direct appeal, with tolling for the pendency of the state habeas proceedings:
April 18, 2006. See 28 U.S.C. § 2244(d). And, although the federal filing deadline was tolled
while Jones’s state habeas petition was under consideration, it was not tolled for the 149-day
period between when the Supreme Court denied certiorari on direct appeal and Jones filed
his state petition. Jones’s federal petition was precisely 149 days late.
        As the district court explained, this was not an inexplicable error. Typically, the
deadline to file a post-conviction petition in Texas state court passes before the case is
finalized on direct appeal. Where a petitioner files a state habeas application before the
judgment is finalized on direct review, the one-year federal limitations period is instantly
tolled when the direct appeal terminates, and only resumes when the state habeas
proceedings are finalized. Here, in contrast, the deadline for Jones’s state habeas petition
was tolled because Jones received an extension allowing him to file the state petition after
the Supreme Court denied certiorari on direct appeal.
        15 Strickland informed Jones that he was investigating options, but did not notice an

appeal in this court or tell Jones that he was not filing an appeal.
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                                         No. 16-70003
punishment phase, 16 and instructed Jones to simultaneously brief his appeal
from the district court’s denial of investigative funding. 17
       We conclude that Jones is not entitled to relief on his Fifth Amendment
claim, and that the district court did not abuse its discretion in denying
investigative funding. As a result, we do not address the Director’s argument
that the district court erred in equitably tolling the limitations period for
Jones’s federal petition. 18
                                                II
       We review a district court’s grant of summary judgment denying federal
habeas relief de novo. 19 Under AEDPA, we evaluate claims decided on the
merits by the state court for whether they were “contrary to, or involved an
unreasonable application of, clearly established Federal law,” or whether they
“resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 20 A
decision is “contrary to” such clearly established federal law if it either “applies
a rule that contradicts the governing law set forth” in the Supreme Court’s
holdings or “confronts a set of facts that are materially indistinguishable from
a decision of [the Supreme Court] and nevertheless arrives at a result different




       16  Jones v. Davis, 673 F. App’x 369, 376 (5th Cir. 2016) (per curiam). The Supreme
Court denied certiorari on the claim for which we declined to grant Jones a COA. Jones v.
Davis, 137 S. Ct. 2188 (2017).
        17 A COA is not needed to appeal this issue, so when we granted Jones a COA on the

Miranda issue, we instructed him to brief his § 3599 argument at the same time. Jones, 673
F. App’x at 376.
        18 See Garcia v. Quarterman, 454 F.3d 441, 444 n.5 (5th Cir. 2006) (“Because we deny

the habeas petition, we do not address the issue of tolling . . . .”); see also Holland v. Florida,
560 U.S. 631, 645 (2010) (observing that AEDPA’s one-year limitations period is not
jurisdictional).
        19 Whitaker v. Davis, 853 F.3d 253, 257 (5th Cir. 2017).
        20 28 U.S.C. § 2254(d).

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from [Supreme Court] precedent.” 21 A state court unreasonably applies such
law when it “identifies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” 22 In reviewing state court decisions, we bear in mind that
“[s]ection 2254(d)(1) provides a remedy for instances in which a state court
unreasonably applies [the Supreme] Court’s precedent; it does not require
state courts to extend that precedent or license federal courts to treat the
failure to do so as error.” 23
       As we have explained, Jones was prosecuted solely for the capital murder
of his aunt, but evidence was admitted at the punishment phase as to his role
in the murders of Peoples and Sanders. That evidence included a written
confession that Jones gave to authorities where he was only informed of his
rights immediately before signing the confession. The Texas Court of Criminal
Appeals held on direct appeal that the confession was taken in contravention
of Miranda v. Arizona, but that its admission was harmless error under the
Supreme Court’s decision in Chapman v. California. 24 Jones argues that this
was contrary to clearly established law because a confession to murder can
never be harmless, and that at a minimum, the state court unreasonably
applied the Chapman standard for harmless error.
                                             A
       First, Jones argues that the Texas Court of Criminal Appeals’
harmlessness determination was contrary to clearly established federal law
because Miranda violations should not be subject to harmless-error analysis.



       21  Williams v. Taylor, 529 U.S. 362, 405–06 (2000). The governing Supreme Court
precedent must have been clearly established at the time of the state court’s adjudication.
See, e.g., White v. Woodall, 572 U.S. 415, 419–20 (2014).
        22 Holland v. Jackson, 542 U.S. 649, 652 (2004) (quoting Williams, 529 U.S. at 413).
        23 White, 572 U.S. at 426 (emphasis omitted).
        24 Jones, 119 S.W.3d at 770–83.

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                                       No. 16-70003
He relies heavily on Justice White’s opinion—joined by Justices Marshall,
Blackmun, and Stevens—in Arizona v. Fulminante, which he characterizes as
a plurality holding that Miranda violations are not subject to harmless error
analysis. 25 There are several reasons why the state court’s consideration of
harmless error was not contrary to clearly established federal law. Most
plainly, Fulminante addressed coerced confessions, not confessions taken in
violation of Miranda. 26 And the Fulminante “plurality” Jones cites was in fact
a dissent on the precise point at issue—Justice White explicitly acknowledged
in the relevant section of the opinion that “five Justices have determined that
harmless-error analysis applies to coerced confessions,” and that portion was
labeled as a dissent. 27 Other courts and treatises therefore correctly treat
Fulminante as holding that the admission of a coerced confession is “trial
error” subject to harmless-error analysis, as opposed to “structural error” not
subject to such analysis. 28 In sum, no Supreme Court precedent holds that
Miranda violations are not subject to harmless-error analysis, and the Court
of Criminal Appeals’ decision to apply harmless-error analysis did not conflict
with clearly established federal law.
                                              B
       Second, Jones argues that the Court of Criminal Appeals unreasonably
applied Chapman in concluding that the admission of the confession was
harmless beyond a reasonable doubt. 29 We disagree, mindful of the Chapman



       25 499 U.S. 279 (1991).
       26 Id. at 287–88. Jones shifts his characterization of the confession over the course of
his briefing from having been taken in violation of Miranda to having been coerced. But he
presents no argument that the confession was coerced, and no Texas court evaluated such a
claim.
       27 Fulminante, 499 U.S. at 282, 288, 295.
       28 See, e.g., 3B Fed. Prac. & Proc. Crim. § 855 (4th ed.).
       29 Chapman requires a court to declare an error harmless beyond a reasonable doubt

to excuse it as harmless error. Chapman v. California, 386 U.S. 18, 24 (1967).
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inquiry’s fact-sensitive nature and the sizable deference we must accord a state
court determination on the merits under AEDPA. The Court of Criminal
Appeals concluded on direct appeal that given the other evidence introduced
at the punishment stage, Jones’s confession to the Sanders and Peoples
murders did not impact—beyond a reasonable doubt—the jury’s answer to the
special issues of whether Jones was likely to commit future acts of violence and
whether there were sufficient mitigating circumstances. 30 The jury was
presented with extensive evidence that Jones murdered Peoples and Sanders.
On cross-examination, Jones’s sister testified that Jones had told her about the
murders in detail that substantially mirrored what Jones included in his
written confession. 31 An expert for the State also testified that when he
interviewed Jones, Jones blamed his alter ego James for Bryant’s death
because he “wouldn’t have killed his aunt if Red hadn’t made him help kill
Sanders and Peoples.” 32 Jones’s written statement confessing to the murders
of Peoples and Sanders introduced some details that did not come out through
other testimony at trial—most significantly, Jones’s statement indicated that
he and Roosa initially targeted Peoples because Roosa asked him if he knew
anyone with money. 33 All told, however, the Court of Criminal Appeals
determined that Jones’s participation in the murders and details of the
murders were “well established through other witnesses and evidence.” 34 Jones
did not dispute at trial or on appeal that he participated in the murders. 35


       30 Jones, 119 S.W.3d at 777–83. Two judges dissented, writing that they “[w]ould not
conclude, beyond a reasonable doubt, that the constitutional violation in admitting [Jones’s]
confessions to two additional murders at the punishment stage did not contribute to the jury’s
verdict for capital punishment,” and would remand for a new trial on punishment.” Id. at
803–04 (Womack, J., dissenting).
       31 Id. at 779–80 (majority opinion).
       32 Id. at 780.
       33 Id. at 782, 792.
       34 Id. at 780.
       35 Id. at 782.

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      The Court of Criminal Appeals also noted the extensive evidence of
Jones’s future dangerousness extending beyond the Sanders and Peoples
murders: he brutally beat his aunt to death to steal money for drugs; had been
convicted of several juvenile offenses, including for assaulting two teachers,
possessing a handgun, and setting fire to another student’s hair; and was a
member of a gang. 36 In sum, it found that the written statement “did not carry
the weight a confession might normally bear in light of the volume and weight
of the other evidence . . . on the future dangerousness issue.” 37 While it
concluded that the prosecution’s reference to the written confession in its
closing argument was “somewhat troubling”—the prosecutor suggested that
Jones was aware that Red was planning to kill Peoples because “it beg[an]”
when Red asked Jones if he knew anyone with money—the court concluded
that this reference did not play a significant role beyond “rhetorical flourish”
in responding to the defense theory. 38 As a result, it found that “beyond a
reasonable doubt . . . the erroneous admission of the [written] statement did
not materially contribute to the jury’s finding that there is a probability that
[Jones] would commit criminal acts of violence that would constitute a
continuing threat to society.” 39
      As for the mitigation special issue, the court concluded that Jones’s
written confession to the Sanders and Peoples murders essentially emphasized
that Jones was following Red’s instructions—reinforcing “the basic defensive
theory at the punishment stage that it was Red’s bad influence that set
appellant down the path toward his alter ego’s murder of his aunt.” 40 The
confession “by no means belittled [Jones’s] overall mitigation case”—which


      36 Id. at 780–81.
      37 Id. at 780.
      38 Id. at 782.
      39 Id. at 783.
      40 Id. at 781.

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rested on evidence of Jones’s dissociative mental disorder. 41 These
observations led the court to hold that “had the [written] statement not been
erroneously admitted into evidence, there is no reasonable likelihood that the
jury might have returned an affirmative answer to the mitigation special
issue.” 42
       The CCA’s decision on direct appeal, approved of in Jones’s post-
conviction proceedings, did not unreasonably apply Chapman. The court
recognized and accounted for the significant impact that a defendant’s
confession has on a jury, and concluded that given the particularities of this
trial record, it was confident beyond a reasonable doubt that the admission of
the written confession did not affect the jury’s answers to the special issues.
Crucially, Jones never contested that he committed the murders described in
the confession, and the information he provided in the confession was largely
presented to the jury through other admissible avenues. Under our deferential
review of the state court determination, we cannot disturb its conclusion. 43
                                              III
       We turn to Jones’s argument that the district court improperly denied
him investigative funding under 18 U.S.C. § 3599(f). Section 3599(f) allows a
court to authorize funding for “investigative, expert, or other services” that are
“reasonably necessary for the representation of the defendant, whether in
connection with issues relating to guilt or the sentence.” We review a district



       41 Id. at 782.
       42 Id. at 783.
       43 To the extent that Jones argues that the confession in violation of Miranda led him

to make other confessions to people who later testified at his trial, and that those confessions
were “fruit of the poisonous tree,” this misapprehends the sweep of the evidence against him,
as well as the Supreme Court’s statements on the matter. See United States v. Patane, 542
U.S. 630, 639 (2004) (explaining that “the Miranda rule ‘does not require that the [otherwise
voluntary] statements [taken without complying with the rule] and their fruits be discarded
as inherently tainted’” (quoting Oregon v. Elstad, 470 U.S. 298, 307 (1985)).
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court’s denial of funding under this section for abuse of discretion. 44 The
district court did not abuse its discretion here.
       In Ayestas v. Davis, the Supreme Court rejected our prior “substantial
need” standard for reviewing challenges to denials of § 3599 funding. It held
that the “substantial need” requirement was more demanding than the
statute’s requirement that the services sought be “reasonably necessary” to a
defendant’s post-conviction challenge. 45 It also made clear, however, that “[a]
natural consideration informing the exercise of [the district court’s] discretion
is the likelihood that the contemplated services will help the applicant win
relief.” 46 Therefore, “[p]roper application of the ‘reasonably necessary’ standard
thus requires courts to consider the potential merits of the claims that the
applicant wants to pursue, the likelihood that the services will generate useful
and admissible evidence, and the prospect that the applicant will be able to
clear any procedural hurdles standing in the way.” 47
       Jones sought investigative funding to develop a potential claim under
Wiggins v. Smith 48 that his trial counsel was ineffective for failing to
sufficiently investigate and present mitigation evidence about Jones’s social
history, including his mental health, abusive childhood, and history of
substance addiction. 49 The district court, writing before the Supreme Court
decided Ayestas, offered several reasons for denying Jones § 3599 funding. It



       44  See Ayestas v. Davis, 138 S. Ct. 1080, 1094 (2018).
       45  Id. at 1092–93.
        46 Id. at 1094 (“After all, the proposed services must be ‘reasonably necessary’ for the

applicant’s representation, and it would not be reasonable—in fact, it would be quite
unreasonable—to think that services are necessary to the applicant’s representation if,
realistically speaking, they stand little hope of helping him win relief.”).
        47 Id.
        48 539 U.S. 510 (2003).
        49 The funding would also partially contribute to investigating Jones’s state habeas

counsel’s ineffectiveness, which would help combat the procedural default of his ineffective-
assistance-of-trial-counsel claim.
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observed that “there is no question that [Jones’s new federal habeas] counsel
previously investigated, prepared, and was compensated for an amended
petition containing substantially the same issues for which she now seeks
funding.” And it found that Jones had not demonstrated “reasonable necessity”
for a 400-hour investigation costing $30,000, because Jones had failed to
demonstrate sufficient likelihood that his trial defense team inadequately
investigated the claims. Most clearly, Jones failed to address the testimony
provided by the defense’s mental health experts at trial—one of whom had
interviewed Jones’s family members and looked at relevant school, hospital,
and police records, and the other of whom submitted a report addressing
Jones’s history of drug and alcohol abuse and other factors in his history
contributing to emotional disturbance. 50 Even though Jones identified “red
flags” involving alcohol and substance addiction and childhood physical and
sexual abuse, the district court concluded that he had not shown that he was
likely to uncover anything beyond what his experts had already addressed:
“[t]he funding statute is not designed to provide petitioner with unlimited
resources to investigate speculative claims.” 51 This was especially so where
Jones sought services in excess of $7,500 and therefore needed to show that
excess funding was “necessary to provide fair compensation for services of an
unusual character or duration,” 52 but wholly failed to address this
requirement.



       50   Jones argued that his trial investigator spent inadequate time investigating
potential mitigation evidence and witnesses. He did not address the fact that his experts
evidently reviewed and cited evidence on the precise issues he sought funding to investigate,
or offer insight into why he viewed that investigation as deficient.
        51 While the district court acknowledged that a petitioner may be entitled to funding

to investigate unexhausted claims of trial counsel ineffectiveness—on the premise that state
habeas counsel was also ineffective—the court concluded that Jones had not demonstrated
that he was likely to uncover further evidence.
        52 18 U.S.C. § 3599(g)(2).

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       Although the district court denied funding before the Supreme Court’s
decision in Ayestas, the denial did not hinge on our now-rejected requirement
that Jones show “substantial need” for the funding. Instead, it viewed Jones’s
request for additional funding as effectively seeking a full retrial of the issues
already litigated in the state court. Ayestas did not disturb the long-settled
principle that district courts have discretion to separate “fishing expedition[s]”
from requests for funding to support plausible defenses. 53 Because “the reasons
the district court gave for its ruling remain sound after Ayestas,” 54 we conclude
that remand is unnecessary and affirm the denial of funding.
                                             IV
       We affirm the judgment of the district court.




       53  See Ayestas, 138 S. Ct. at 1094–95.
       54  Mamou v. Davis, 742 F. App’x 820, 824 (5th Cir. 2018) (affirming denial of funding
without remand where the district court found that the petitioner had failed to provide
“sufficient detail” about the bases of his underlying ineffective assistance of counsel claim);
see Ochoa v. Davis, 750 F. App’x 365, 372–73 (5th Cir. 2018) (per curiam) (affirming denial
of funding without remand where the petitioner “ha[d] not explained how further
investigation would yield evidence that is different from what was available at the time of
his trial” and was instead “simply seeking to ‘turn over every stone’”).
                                             13
