     Case: 11-70002     Document: 00511628726         Page: 1     Date Filed: 10/11/2011




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

                                                                            FILED
                                                                         October 11, 2011

                                       No. 11-70002                        Lyle W. Cayce
                                                                                Clerk

JOHN MANUEL QUINTANILLA, JR.,

                                                  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. 6:09-CV-39


Before CLEMENT, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        John Manuel Quintanilla, Jr., was charged in Texas state court with the
murder of Victor Billings.          The jury found Quintanilla guilty of murder
committed in the course of committing or attempting to commit a robbery—a
capital offense—and the state court judge sentenced him to death based on the
jury’s verdict on the issues of punishment. Quintanilla petitioned unsuccessfully
for post-conviction relief in state court. He filed a habeas petition in federal


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-70002    Document: 00511628726      Page: 2   Date Filed: 10/11/2011



                                  No. 11-70002

district court, which the district court denied in all respects and dismissed. The
district court sua sponte declined to issue a certificate of appealability (“COA”).
Quintanilla has filed an application for a COA to this court on two grounds: (1)
whether his confession was obtained in violation of the Fifth Amendment and
therefore improperly admitted at trial; and (2) whether his confession was
obtained in violation of the Sixth Amendment and therefore improperly admitted
at trial. We deny Quintanilla’s application on both grounds.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      The details of the murder giving rise to this case and the factual
circumstances surrounding Quintanilla’s confession are memorialized in
opinions by the Texas Court of Criminal Appeals, Quintanilla v. State, No. AP-
75061, 2007 WL 1839805 (Tex. Crim. App. June 27, 2007) (unpublished) (slip
op.), and the federal district court, Quintanilla v. Thaler, No. 09-CV-39, 2011 WL
284353 (S.D. Tex. Jan. 25, 2011) (slip op.). We do not repeat them here.
      In short, Quintanilla was arrested on January 14, 2003, on a warrant for
an aggravated robbery unrelated to the instant offense. At 2:30 p.m. on January
15, 2003, Quintanilla was taken before a magistrate for Texas Code of Criminal
Procedure Article 15.17 proceedings and warnings, which included informing
Quintanilla that he had the right to request the appointment of counsel and the
right not to make a statement and that all statements he made would be used
against him. Quintanilla requested appointed counsel at the Article 15.17
hearing.
      At approximately 4:00 p.m. on the same day, Quintanilla was interrogated
without counsel regarding his charged robbery offense by Victoria County
Sheriff’s Office Investigator Abel Arriazola and Calhoun County Sheriff’s
Department Investigator Mike Kovorek. Prior to beginning the videotaped
interview, the investigators gave Quintanilla his Miranda warnings, including
notifying him of his right to counsel and right to remain silent, both of which

                                        2
   Case: 11-70002     Document: 00511628726    Page: 3   Date Filed: 10/11/2011



                                  No. 11-70002

Quintanilla waived. The investigators took a break at approximately 7:55 p.m.,
and Quintanilla and Kovorek returned at approximately 8:10 p.m. Kovorek then
left, and at around 8:35 p.m., Arriazola returned with Victoria Police
Department Detectives Alfred Santiago and Tom Copeland. Arriazola told
Quintanilla that “Nothing has changed from the time I’ve talked to you,”
apparently meaning that his rights were still in effect, and Santiago and
Copeland were apparently aware that Quintanilla had been Mirandized at the
beginning of his interview.       Santiago and Copeland then interrogated
Quintanilla, including asking questions about the capital murder with which
Quintanilla was not yet charged. About fifteen minutes into the interrogation
the detectives reminded Quintanilla of his Miranda rights, which Quintanilla
again waived. Quintanilla subsequently made inculpatory statements regarding
the capital murder.
      After a pre-trial hearing, the state trial court judge determined that
Quintanilla’s statements made during his interrogation about the aggravated
robbery offense had been obtained in violation of his Sixth Amendment right to
counsel, which Quintanilla invoked when he requested counsel at the Article
15.17 hearing. The trial judge also ruled that Quintanilla had freely waived his
Fifth Amendment rights to court-appointed counsel and to be silent at the
custodial interrogation, and that the Sixth Amendment violation related to the
aggravated robbery charge did not prohibit the admission of statements
Quintanilla made regarding other then-uncharged offenses, including the
instant capital murder offense.
      Quintanilla was convicted by a jury of capital murder and sentenced to
death. He timely appealed his conviction and sentence in state court, and sought
habeas relief in state court and in federal district court. This application for a
COA timely followed.



                                        3
   Case: 11-70002    Document: 00511628726      Page: 4    Date Filed: 10/11/2011



                                  No. 11-70002

                         II. STANDARD OF REVIEW
      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
petitioner can appeal a district court’s dismissal of a habeas petition only if the
district or appellate court issues a COA. 28 U.S.C. § 2253(c); see also Miller-El
v. Cockrell, 537 U.S. 322, 335–36 (2003). Because the district court sua sponte
declined to issue a COA, Quintanilla must seek a COA from this court to obtain
further review of his claims. See 28 U.S.C. § 2253(c); see also Coleman v.
Quarterman, 456 F.3d 537, 541 (5th Cir. 2006).
      We will issue a COA if Quintanilla can make “a substantial showing of the
denial of a constitutional right” by demonstrating that “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). At this stage, our inquiry
“is a threshold inquiry only, and does not require full consideration of the factual
and legal bases of [Quintanilla’s] claim.” Neville v. Dretke, 423 F.3d 474, 482
(5th Cir. 2005). Because Quintanilla was sentenced to death, “we must resolve
any doubts as to whether a COA should issue in his favor.” Martinez v. Dretke,
404 F.3d 878, 884 (5th Cir. 2005).
      In determining whether reasonable jurists would debate the district
court’s assessment of Quintanilla’s claims, we keep in mind that the district
court’s decision must be made pursuant to AEDPA’s deferential standards.
Tennard v. Dretke, 542 U.S. 274, 282 (2004); see also Leal v. Dretke, 428 F.3d
543, 548 (5th Cir. 2005).
      AEDPA permits a federal district court to grant relief only if the state
court decision (1) “‘was contrary to’ federal law then clearly established” by
Supreme Court precedent, Harrington v. Richter, 131 S. Ct. 770, 785 (2011)
(quoting 28 U.S.C. § 2254(d)(1)), or (2) “‘involved an unreasonable application of’
such law,” id. (quoting 28 U.S.C. § 2254(d)(1)), or (3) “‘was based on an



                                         4
     Case: 11-70002   Document: 00511628726     Page: 5   Date Filed: 10/11/2011



                                   No. 11-70002

unreasonable determination of the facts’ in light of the record before the state
court,” id. (quoting 28 U.S.C. § 2254(d)(2)).
        A decision is contrary to federal law if it is “opposite to that reached by
[the Supreme] Court on a question of law” or if it resolves a case differently from
the way the Supreme Court has “on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A decision unreasonably
applies federal law when it “identifies the correct governing legal rule from
[Supreme Court] cases but unreasonably applies it to the facts of the particular
state prisoner’s case.” Id. at 407. A state court decision also unreasonably
applies federal law if it “either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should
apply.” Id. “The state court’s findings of fact are entitled to a presumption of
correctness and the petitioner may overcome that presumption only by clear and
convincing evidence.” Leal v. Dretke, 428 F.3d 543, 548 (5th Cir. 2005) (citing
28 U.S.C. § 2254(e)(1)).
                                 III. ANALYSIS
        Quintanilla argues in his application for a COA that the state court
unreasonably applied federal law on two grounds: first, that his confession to
capital murder was obtained in violation of his Fifth Amendment right to
counsel and therefore improperly admitted at trial; and second, that his
confession was obtained in violation of his Sixth Amendment right to counsel
and therefore improperly admitted at trial. We address each issue in turn.
A.      Fifth Amendment Right To Counsel
        In his petition for a COA, Quintanilla argues that the Article 15.17
hearing before the magistrate—at which he was informed of and exercised his
right to court-appointed counsel—invoked his Fifth Amendment rights in
addition to his Sixth Amendment rights as found by the state trial court.

                                         5
   Case: 11-70002   Document: 00511628726      Page: 6   Date Filed: 10/11/2011



                                   No. 11-70002

Because the Fifth Amendment right to counsel is not offense-specific,
Quintanilla argues that he was illegally interrogated about the instant offense
without counsel notwithstanding his subsequent waiver of his Miranda rights
during the interrogation itself.
      The Fifth Amendment, which applies to the states by virtue of the
Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6 (1964), provides that
“[n]o person . . . shall be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436 (1966), the
Supreme Court “declared that an accused has a Fifth and Fourteenth
Amendment right to have counsel present during custodial interrogation.”
Edwards v. Arizona, 451 U.S. 477, 481 (2001). The Miranda Court adopted a set
of prophylactic measures to protect a suspect’s Fifth Amendment right from the
“inherently compelling pressures” of custodial interrogation: specifically, that
“police officers must warn a suspect prior to questioning that he has a right to
remain silent, and a right to the presence of an attorney.” Maryland v. Shatzer,
130 S. Ct. 1213, 1219 (2010). The Court defined “custodial interrogation” as
“questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant
way.” Miranda, 384 U.S. at 444.
      Quintanilla undeniably was not subject to “custodial interrogation” at the
time he appeared before the magistrate at the Article 15.17 hearing. Indeed, he
concedes that the magistrate “was not going to interrogate him” and that he was
not subject to questioning by law enforcement officers until approximately two
hours after his appearance before the magistrate. Rather, Quintanilla argues
that his request for counsel at the hearing invoked his Fifth Amendment right
to be free from any future custodial interrogations without the presence of
counsel. The Supreme Court has held, however, that an accused’s request for
counsel at an initial appearance on a charged offense does not constitute an

                                        6
     Case: 11-70002    Document: 00511628726        Page: 7    Date Filed: 10/11/2011



                                     No. 11-70002

invocation of the Fifth Amendment right to counsel. McNeil v. Wisconsin, 501
U.S. 171, 181–82 (1991).
        Quintanilla’s argument—that the Article 15.17 hearing is “basically to
Mirandize the accused” and is “more than” a preliminary hearing such that his
Fifth Amendment rights attached—is without merit and made without a shred
of legal support. Indeed, the Supreme Court has specifically held that Texas’s
Article 15.17 hearing and initial appearance before a magistrate is a preliminary
hearing that invokes the offense-specific Sixth Amendment right to counsel. See
Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 198 (2008).1 Simply put, the Fifth
Amendment right to counsel did not attach at the Article 15.17 hearing because
Quintanilla was not then subject to custodial interrogation.
        It is undisputed that Quintanilla was given his Miranda warnings by law
enforcement officers before they interrogated him, and that he waived his Fifth
Amendment right to counsel at that time. Quintanilla has therefore neither
made a substantial showing that his Fifth Amendment right to counsel was
denied, nor has he demonstrated that reasonable jurists could disagree with the
district court’s determination that Quintanilla did not invoke the Fifth
Amendment right to counsel during the Article 15.17 hearing.
B.      Sixth Amendment Right To Counsel
        The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI. “The Sixth Amendment right [to counsel] . . .
is offense specific. It cannot be invoked once for all future prosecutions, for it
does not attach until a prosecution is commenced, that is, at or after the



       1
         The Supreme Court has also explicitly rejected the argument that an accused can
“combine” the Sixth and Fifth Amendment rights to counsel and that the prior invocation of
the offense-specific Sixth Amendment right voids all subsequent Fifth Amendment waivers
at the time of custodial interrogation on unrelated offenses. See McNeil, 501 U.S. at 177.

                                            7
   Case: 11-70002       Document: 00511628726         Page: 8     Date Filed: 10/11/2011



                                       No. 11-70002

initiation of adversary judicial criminal proceedings—whether by way of formal
charge, preliminary hearing, indictment, information, or arraignment.” Texas
v. Cobb, 532 U.S. 162, 167–68 (2001) (quoting McNeil, 501 U.S. at 175).
Furthermore, “a defendant’s statements regarding offenses for which he had not
been charged [are] admissible notwithstanding the attachment of his Sixth
Amendment right to counsel on other charged offenses.” Id. at 168.2
       The state court held, and Quintanilla does not seek to challenge, that (1)
the Article 15.17 hearing constituted an initial presentment that triggered
Quintanilla’s Sixth Amendment right to counsel on the unrelated aggravated
robbery offense, (2) he exercised his right to counsel for that offense when he
requested an attorney during the hearing, and (3) the subsequent interrogation
by law enforcement officials regarding the robbery without counsel present
violated Quintanilla’s Sixth Amendment right to counsel. In his application for
a COA, Quintanilla argues that his request for counsel on the robbery charge
extended to the then-uncharged offense of capital murder of which he was
eventually charged and convicted. Specifically, Quintanilla argues that the
charged and uncharged offenses were “so inextricably intertwined” or “extremely
closely related” that the invocation of his Sixth Amendment right to counsel on
the robbery charge also attached to the instant (then-uncharged) offense. See
United States v. Cooper, 949 F.2d 737, 743 (5th Cir. 1991).3



       2
         “Even though the Sixth Amendment right to counsel has not attached to uncharged
offenses, defendants retain the ability under Miranda to refuse any police questioning.” Cobb,
532 U.S. at 172 n.2.

       3
          Cooper has been abrogated by Cobb. See Gore v. Sec’y for Dep’t of Corr., 492 F.3d
1273, 1306 n.73 (11th Cir. 2007) (explaining that Cooper’s language purporting to provide for
an “inextricably intertwined”-uncharged-crimes exception to the rule that the Sixth
Amendment is offense-specific is unavailing because the Court’s decision in Cobb articulates
a different standard: the Sixth Amendment does not attach to an uncharged crime unless it
“has elements identical to those of the charged crime and would require proof of no additional
facts”).

                                              8
   Case: 11-70002       Document: 00511628726          Page: 9     Date Filed: 10/11/2011



                                       No. 11-70002

       While Quintanilla states that he made this argument before the state trial
court,4 he did not present this argument to the district court below. In his
petition for habeas corpus to the district court, Quintanilla’s fifth claim for relief
argues that he would not have confessed to the capital murder if he had been
timely appointed counsel as requested at the Article 15.17 hearing. His Sixth
Amendment argument below was framed as one of causation: had his Sixth
Amendment right as to the aggravated robbery charge not been violated and
Quintanilla been appointed counsel before the interrogation began, his attorney
“would have advised him to assert his Fifth Amendment right to silence, rather
than give a detailed account of a crime spree or admit to capital murder.” This
construction of Quintanilla’s argument below is further supported by
Quintanilla’s citation in his habeas petition before the district court to United
States v. Rivas, 157 F.3d 364 (5th Cir. 1998), and its “fruit of the poisonous tree”
discussion in the Fourth Amendment context. Id. at 368.
       Nowhere in his petition for habeas corpus does Quintanilla cite to Cooper
or argue the robbery and the instant offense are “inextricably intertwined” or
“extremely closely related.”          Because this argument is not made in his
application for habeas corpus, we lack jurisdiction to grant a COA on this
argument and the argument is waived. See, e.g., Balentine v. Thaler, 626 F.3d
842, 848–49 (5th Cir. 2010); Brewer v. Quarterman, 475 F.3d 253, 255 (5th Cir.
2006) (explaining appellate jurisdiction over an application for a COA).
                                   IV. CONCLUSION
       For the foregoing reasons, we deny Quintanilla’s application for a COA.
       DENIED.




       4
        Thaler disputes that Quintanilla raised this argument before the state trial court.
Resolving this factual dispute is unnecessary for purposes of deciding Quintanilla’s application
for a COA.

                                               9
