     Case: 16-70003      Document: 00513791098         Page: 1    Date Filed: 12/09/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-70003                              FILED
                                                                         December 9, 2016
                                                                           Lyle W. Cayce
QUINTIN PHILLIPPE JONES,                                                        Clerk

              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
                              USDC No. 4:05-CV-638


Before HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Quintin Phillippe Jones was convicted by a Texas jury of capital murder
and sentenced to death. After a direct appeal and collateral review in state
court, he petitioned a federal district court for a writ of habeas corpus,
challenging the constitutionality of his confinement and sentence. The district




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                     No. 16-70003
court denied relief. Jones now seeks a certificate of appealability (COA) to
appeal. We will GRANT a COA in part.
                                            I.
      Jones beat his eighty-three-year-old great aunt to death with a baseball
bat. 1 Fort Worth police arrested him the next day for outstanding traffic
warrants and for possession of a controlled substance, and interviewed him
about the murder. 2 The following day, Jones gave a written statement after
waiving his Miranda rights in which he stated that he had an alter ego named
James who lived in his head and was responsible for the murder. 3 Several days
later, Jones confessed in detail to two additional murders. 4
      Jones was convicted by a Texas jury of capital murder and sentenced to
die. 5 The Texas Court of Criminal Appeals affirmed his conviction and
sentence. 6 The United States Supreme Court denied certiorari. 7 Jones then
filed a state petition for habeas corpus, which the Texas Court of Criminal
Appeals denied. 8
      Jones filed a federal petition for habeas corpus in the Northern District
of Texas. 9 His petition was dismissed as time-barred. 10 The district court
appointed new counsel and vacated its dismissal to give Jones a chance to
respond. 11 After his response, his petition was again dismissed as time-



      1  Jones v. State, 119 S.W.3d 766, 770-71 (Tex. Crim. App. 2003).
      2  Id. at 771.
       3 Id.
       4 Id. at 771-72. Jones was never charged with these two additional murders, but

evidence of them was admitted as relevant to his punishment. Id.
       5 Id. at 770.
       6 Id.
       7 Jones v. Texas, 542 U.S. 905 (2004).
       8 Ex parte Jones, No. WR-57299-01, 2005 WL 2220030 (Tex. Crim. App. Sept. 14, 2005)

(unpublished).
       9 ROA.84-119.
       10 ROA.763-69.
       11 ROA.891-900; Respondent’s Br. 14-15 (ECF 71, 20-21).

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                                       No. 16-70003
barred. 12 Jones appealed, and we vacated and remanded for reconsideration in
light of the principles of equitable tolling announced in the Supreme Court’s
then-recent decision Holland v. Florida. 13 On remand, the district court found
that no grounds existed for equitable tolling and once again dismissed Jones’s
federal habeas petition as time-barred. 14 Then on Jones’s motion to alter
judgment, the district court reversed course, persuaded that equitable tolling
relieved Jones’s petition from the AEDPA limitations bar. 15 It granted leave to
file an amended petition for federal habeas with additional briefing by both
parties. 16
       Finally, in January of 2016, the district court issued the relevant
memorandum and opinion denying each of Jones’s six claims for relief in the
amended petition 17 and denying a COA on all claims. 18 Jones seeks a COA on
two out of the six denied claims: claim 1a for ineffective assistance of trial
counsel and claim 5 for violation of his Miranda rights.
                                             II.
       “This court may issue a COA only if the applicant has ‘made a
substantial showing of the denial of a constitutional right.’ . . . To make a
substantial showing, a petitioner must show that ‘reasonable jurists could
debate whether . . . the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement




       12 ROA.1223-34; Respondent’s Br. 15 (ECF 71, 21).
       13 Jones v. Thaler, 383 F. App’x 380 (5th Cir. 2010) (unpublished) (referencing 560
U.S. 631 (2010)); Respondent’s Br. 15 (ECF 71, 21).
       14 ROA.1574-1601; Respondent’s Br. 15 (ECF 71, 21).
       15 ROA.1671-84; Respondent’s Br. 16 (ECF 71, 22).
       16 Respondent’s Br. 16 (ECF 71, 22). [The state’s opposition erroneously describes

Jones’s amended petition as being filed in “June 2004;” it was in fact filed June 2014, and can
be found at ROA.1951-2069.]
       17 Respondent’s Br. 16 (ECF 71, 22); ROA.2424-2521.
       18 ROA.2520.

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                                       No. 16-70003
to proceed further.’” 19 Although a petitioner seeking a COA must demonstrate
“‘something more than the absence of frivolity’ or the existence of mere ‘good
faith,’” 20 our analysis of a COA application entails only a “limit[ed],” “threshold
inquiry,” 21 and “[w]here the petitioner faces the death penalty, ‘any doubts as
to whether a COA should issue must be resolved’ in the petitioner’s favor.’” 22
When the district court denied relief on procedural grounds, the petitioner
seeking a COA must further show that “jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” 23
       Under 28 U.S.C. § 2254(d),
       An application for a writ of habeas corpus on behalf of a person in
       custody pursuant to the judgment of a State court shall not be
       granted with respect to any claim that was adjudicated on the
       merits in State court proceedings unless the adjudication of the
       claim—
             (1) resulted in a decision that was contrary to, or involved an
             unreasonable application of, clearly established Federal law,
             as determined by the Supreme Court of the United States;
             or
             (2) 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.

       We “review pure questions of law under the ‘contrary to’ standard of sub-
section (d)(1), mixed questions of law and fact under the ‘unreasonable




       19   Allen v. Stephens, 805 F.3d 617, 624-25 (5th Cir. 2015) (quoting 28 U.S.C.
§ 2253(c)(2) and Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)).
        20 Miller–El, 537 U.S. at 338 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
        21 Id. at 327
        22 Allen, 805 F.3d at 625 (quoting Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir.

2004)).
        23 Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (quoting Slack v. McDaniel, 529 U.S.

473, 484 (2000)).
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                                      No. 16-70003
application’ standard of sub-section (d)(1), and pure questions of fact under the
‘unreasonable determination of facts’ standard of sub-section (d)(2).” 24
                                            III.
       Claim 1 of Jones’s federal habeas petition, on which the instant claim 1a
was based, was the denial of Jones’s Sixth Amendment right to counsel at
critical stages of his prosecution. 25 The district court denied that claim, 26 and
Jones does not challenge that determination. An additional, unnumbered claim
came with the heading of claim 1: that Jones’s trial counsel was ineffective for
failing to object to this denial of Jones’s Sixth Amendment right to counsel 27—
a claim raised for the first time in Jones’s amended federal habeas petition.
The district court styled this claim “claim 1a” and denied it, ruling it
procedurally as unexhausted in state court and lacking merit. 28 Jones seeks a
COA on claim 1a.
       Admitting that claim 1a is procedurally defaulted for failing to raise it
to the Texas state habeas court, 29 Jones rests on the exception to procedural
default announced in Martinez v. Ryan 30 and applied to Texas procedural
defaults in Trevino v. Thaler. 31 In Martinez, the Court held
       Where, under state law, claims of ineffective assistance of trial
       counsel must be raised in an initial-review collateral proceeding, a

       24 Simmons v. Epps, 654 F.3d 526, 534 (5th Cir. 2011) (quoting Murphy v. Johnson,
205 F.3d 809, 813 (5th Cir. 2000)).
       25 ROA.1996.
       26 ROA.2451.
       27 ROA.2001.
       28 ROA.2452-55.
       29 Petitioner’s Br. 27-28 (ECF 38, 38-39) (Jones argues for application of the

Martinez/Trevino procedural default exception, thereby implicitly admitting that the claim is
procedurally defaulted); Respondent’s Br. 34-36 (ECF 71, 40-42); Williams v. Thaler, 602 F.3d
291, 305 (5th Cir. 2010) (“Procedural default . . . occurs when a prisoner fails to exhaust
available state remedies and the court to which the petitioner would be required to present
his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred.” (quoting Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004)).
       30 132 S. Ct. 1309 (2012).
       31 133 S. Ct. 1911 (2013).

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                                      No. 16-70003
       procedural default will not bar a federal habeas court from hearing
       a substantial claim of ineffective assistance at trial if, in the initial-
       review collateral proceeding, there was no counsel or counsel in
       that proceeding was ineffective. 32

Subsequently, in Trevino, the Court applied its holding in Martinez to Texas
prisoners’ federal habeas petitions. 33
       The district court ruled that the Martinez/Trevino exception was not
available because Jones’s ineffective assistance of trial counsel claim was not
“substantial,” 34 concluding that the underlying Sixth Amendment claim was
without merit. 35
       We find that reasonable jurists could not debate the correctness of the
district court’s procedural ruling. The ineffective assistance of counsel claim
that Jones seeks to have excused from procedural default is not substantial. It
rests on the premise that Jones’s trial counsel should have objected to Texas’s
failure to timely appoint counsel to Jones to assist him with critical stages of
his prosecution. 36 However, Jones’s Sixth Amendment right to counsel had not
yet attached in connection with the capital murder charge at the time that he
complains about.
       On September 11, 1999, the day after Jones murdered his great aunt, he
was arrested for outstanding traffic citations and possession of a controlled
substance. 37 Jones argues that this arrest was merely a pretext to question




       32 Martinez, 132 S. Ct. at 1320.
       33 Trevino, 133 S. Ct. at 1921.
       34 ROA.2455; see Martinez, 132 S. Ct. at 1318 (“To overcome the default, a prisoner

must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that the claim has some
merit.”).
       35 ROA.2455.
       36 Petitioner’s Br. 27 (ECF 38, 38).
       37 Petitioner’s Br. 12 (ECF 38, 23).

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                                       No. 16-70003
him about the murder. 38 And indeed, Jones was questioned by a Fort Worth
detective that night about the murder. 39 The following day, on September 12,
Jones was arraigned for possession of a controlled substance. 40 The next day,
on September 13, Fort Worth police collected a blood sample from Jones that
implicated him in the murder and conducted another interview, during which
Jones confessed to the murder of his great aunt. 41 Later that night, Jones was
arraigned for capital murder. 42 A few weeks later, on September 22, while
Jones remained incarcerated for the murder of his great aunt, Texas Rangers
learned of evidence implicating Jones in two additional, unrelated murders, so
they questioned him about those. 43 Jones confessed to the two additional
murders. 44 On October 5, Jones requested and was appointed counsel. 45
       Jones’s trial counsel did not assert an objection under the Sixth
Amendment. 46 Jones asserted to the district court in his amended petition for
habeas corpus, for the first time in any court, that his trial counsel was
ineffective for failing to do so. He does not argue that the taking of a blood
sample was a “critical stage” of his prosecution necessitating representation. 47
Instead, he focuses on two interrogations—the September 13 interrogation by
a Fort Worth detective concerning the eventually charged murder, and the
September 22 interrogation by Texas Rangers concerning the two uncharged
murders—arguing that they were “critical stages” of his prosecution during


       38 Petitioner’s Br. 12-13 (ECF 38, 23-24).
       39 Respondent’s Br. 30 (ECF 71, 36).
       40 Petitioner’s Br. 13 (ECF 38, 24).
       41 Petitioner’s Br. 13-15 (ECF 38, 24-26).
       42 Petitioner’s Br. 15 (ECF 38, 26).
       43 Petitioner’s Br. 17 (ECF 38, 28).
       44 Petitioner’s Br. 17 (ECF 38, 28).
       45 Petitioner’s Br. 18 (ECF 38, 29).
       46 Respondent’s Br. 33 (ECF 71, 39). His counsel did pursue objections under the

Fourth and Fifth Amendments. Respondent’s Br. 33 n.7 (ECF 71, 39).
       47 See United States v. Wade, 388 U.S. 218, 227 (1967) (the taking of a blood sample is

not a critical stage that triggers the Sixth Amendment right to counsel).
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                                       No. 16-70003
which he was entitled to counsel. Jones is correct that interrogations by the
state are “critical stages” within the meaning of the Supreme Court’s Sixth
Amendment jurisprudence. 48 Jones claims that he was entitled to counsel
under the Sixth Amendment during those two interrogations, and therefore
that his trial counsel were ineffective for failing to raise the issue.
        The flaw in Jones’s position is that his Sixth Amendment right to counsel
had not yet attached in connection with the crimes that those interrogations
concerned at the times they occurred. “[A] person’s Sixth [] Amendment right
to counsel attaches only at or after the time that adversary judicial proceedings
have been initiated against him”—specifically “at the time of arraignment” or
“at the time of a preliminary hearing.” 49 And this Sixth Amendment right “is
offense specific.” 50 At the time that a Fort Worth detective questioned Jones
about the murder of his great aunt, Jones had not yet been charged with or
arraigned for that murder, so his Sixth Amendment right to counsel in
connection with that murder charge had not yet attached. Further, at the time
that Texas Rangers questioned Jones about the two unrelated murders, Jones
had not been charged with or arraigned for those murders (and indeed he never
was).
        Essentially acknowledging this flaw, Jones argues that his Sixth
Amendment right to counsel in connection with the capital murder charge
actually attached the day before the interview with Fort Worth police, at his
arraignment for possession of a controlled substance. He characterizes his drug
arrest as “pretext” for police to question him about the murder, and reasons
that he therefore should have been provided with counsel during the
interrogation that occurred prior to his murder arraignment notwithstanding


        48 Montejo v. Louisiana, 556 U.S. 778, 786 (2009).
        49 Kirby v. Illinois, 406 U.S. 682, 688-89 (1972).
        50 McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).

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                                       No. 16-70003
that no right to counsel had attached in connection with the crime that the
interrogation concerned. He relies on Maine v. Moulton, 51 in which the
Supreme Court held that a state violated the Sixth Amendment by sending a
wired informant to gather incriminating statements from a defendant who had
been indicted for the subject crime. 52 Critically, the Moulton defendant’s Sixth
Amendment right to counsel had clearly attached, but the police circumvented
it by use of an informant. 53 Nevertheless, Jones argues here that the reasoning
of Moulton means that the state of Texas had an obligation to provide him with
counsel during interrogations that concerned crimes for which he was not yet
charged because he had previously been arraigned for an unrelated drug
offense. That reading of Moulton—which appears to side step the offense-
specificity of the Sixth Amendment by requiring states to supply counsel
during an interrogation concerning any crime after a suspect has been charged
with any crime—lacks support.
       This is not to say that Jones’s reading of Moulton has no validity
whatsoever. Contrary to his assertion, the validity of the reading he urges is
not before us. Rather, Jones’s claim 1a raises the question whether his trial
counsel were ineffective for failing to have urged his reading in the convicting
trial court. Trial counsel cannot be ineffective for failing to assert a novel
extension of the reasoning of a Supreme Court case. 54 We find that reasonable
jurists could not debate that Jones has no substantial ineffective-assistance


       51  474 U.S. 159 (1985).
       52  Id. at 176-77.
        53 Id. at 170 (“Once the right to counsel has attached and been asserted, the State must

of course honor it.”) (emphasis added).
        54 See Ragland v. United States, 756 F.3d 597, 601 (8th Cir. 2014) (“[C]ounsel’s failure

to anticipate a rule of law that has yet to be articulated by the governing courts, and failure
to raise a novel argument based on admittedly unsettled legal questions does not render his
performance constitutionally ineffective. While the Constitution guarantees criminal
defendants a competent attorney, it does not insure that defense counsel will recognize and
raise every conceivable . . . claim.”) (internal quotations and citations omitted).
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                                      No. 16-70003
claim based on the failure to raise a Sixth Amendment objection. The district
court was inarguably correct that Jones is not entitled to the Martinez/Trevino
exception from his procedural default of claim 1a. Accordingly, we deny a COA
on claim 1a.
                                            IV.
      We turn to claim 5. It is undisputed that Jones’s September 22 confession
to the two unrelated murders taken by the Texas Rangers was taken in
violation of Miranda. 55 However, the Texas Court of Criminal Appeals held in
Jones’s direct appeal that the admission of this confession during the
punishment phase of the trial, while erroneous, was harmless error beyond a
reasonable doubt, two judges dissenting. 56 In the district court, Jones
challenged that harmless-error determination as contrary to and an
unreasonable application of clearly established Supreme Court precedent. The
district court found that it was not, and denied relief on claim 5.
      The admission at trial of a confession taken in violation of Miranda is
subject to harmless-error analysis. 57 But the standard is high: “before a federal
constitutional error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt.” 58 We are cognizant
that “confessions have profound impact on the jury.” 59 Notwithstanding that
the confession in question was admitted only during the punishment phase of
Jones’s trial, we find that jurists of reason could debate whether the state
court’s application of the Supreme Court’s harmless-error test was reasonable.
We grant a COA on claim 5.




      55 Miranda v. Arizona, 384 U.S. 436 (1966).
      56 Jones, 119 S.W.3d at 777-83.
      57 Milton v. Wainwright, 407 U.S. 371, 372-73 (1972).
      58 Chapman v. California, 386 U.S. 18, 24 (1967).
      59 Bruton v. United States, 391 U.S. 123, 140 (1968) (White, J., dissenting).

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                                  No. 16-70003
      We acknowledge the respondent’s extensive argument that the AEDPA
statute of limitations bars this claim. While that would normally bar a COA if
true, our inspection of the record reveals that the respondent may have waived
this argument in the district court. However, we do not foreclose the issue;
more searching review on a merits appeal may reveal that inclination to be
incorrect.
                                        V.
      In sum, we deny a COA on Jones’s claim 1a of ineffective assistance of
trial counsel for failing to raise a Sixth Amendment objection. We grant a COA
on Jones’s claim 5 regarding the harmlessness of the admission of a confession
obtained in violation of Miranda. Further, we deny Jones's motion for
reconsideration of our denial of leave to file a separate brief on his § 3599 claim.
Jones should brief that claim along with the claim that we grant COA on here.




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