     Case: 16-70003    Document: 00514916154     Page: 1   Date Filed: 04/15/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                             United States Court of Appeals

                                  No. 16-70003
                                                                      Fifth Circuit

                                                                    FILED
                                                                April 15, 2019

QUINTIN PHILLIPPE JONES,                                       Lyle W. Cayce
                                                                    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


Before HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      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
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.
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                                     No. 16-70003
                                            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. 1
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. 2 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. 3
      Based on a lead from Jones’s sister, the police also investigated Jones’s
involvement in the murders of Marc Sanders and Clark Peoples. 4 Nine days
after Jones confessed to killing Bryant, a Texas Ranger and sheriff’s deputy
interrogated Jones about the Sanders and Peoples murders. 5 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. 6
Authorities only informed Jones of his Miranda rights after this statement was
written down and he was about to sign; he proceeded to sign it. 7 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.




      1 Jones v. State, 119 S.W.3d 766, 770–71 (Tex. Crim. App. 2003).
      2 Id. at 771.
      3 Id.
      4 Id.
      5 Id.
      6 Id. at 781, 792–94.
      7 Id. at 772.

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                                      No. 16-70003
      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.” 8 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. 9 The Texas Court of Criminal Appeals, or CCA,
affirmed his conviction and sentence, 10 and the United States Supreme Court
denied certiorari. 11
      Jones’s appointed post-conviction attorney failed to file his state
application for habeas corpus. The CCA appointed Jack Strickland as
substitute counsel and set a new deadline for Jones’s application. Although
Strickland filed Jones’s application thirty days after the extended deadline had
passed, the CCA found that Strickland’s workload constituted good cause for
the delay and accepted Jones’s petition. Throughout the state habeas
proceedings, Strickland failed to respond to letters Jones sent urging him to
investigate or discuss certain issues; Jones wanted Strickland to raise
ineffective assistance of counsel, while Strickland saw this as “casually
impugn[ing] the “integrity [and] competence” of Jones’s previous attorneys.
Jones twice wrote to the state court asking it to contact Strickland and “have




      8 Id. at 777.
      9 Id. at 770.
      10 Id.
      11 Jones v. Texas, 542 U.S. 905 (2004).

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                                       No. 16-70003
him . . . do his job.” The CCA did not intervene in Strickland’s representation
of Jones and ultimately denied Jones’s habeas application in 2005. 12
       Despite Jones’s persistent efforts to have substitute or additional counsel
appointed for his federal postconviction proceedings, the district court
appointed 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. § 2244(d)(1).” Jones
continued to send Strickland letters about the federal petition and upcoming
deadline, which Strickland told Jones was September 14, 2006.
       Strickland filed Jones’s federal petition on September 14, 2006, exactly.
The district court dismissed the petition as time-barred because Strickland had
miscalculated the filing deadline. 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. 13 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
Strickland filed Jones’s state petition. Jones’s federal petition was precisely
149 days late. 14



       12  Ex parte Jones, No. WR-57,299-01, 2005 WL 2220030, at *1 (Tex. Crim. App. Sept.
14, 2005) (per curiam).
        13 See 28 U.S.C. § 2244(d).
        14 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 Strickland received an extension allowing Jones to file the state petition
after the Supreme Court denied certiorari.
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                                      No. 16-70003
       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. Jones responded, and
the district court once again dismissed his petition as time-barred. He
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 in Holland v. Florida. 16 On remand, 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
punishment phase, 17 and instructed Jones to simultaneously brief his appeal
from the district court’s denial of investigative funding. 18
       We must now resolve three issues: whether Jones’s petition is time-
barred, whether Jones is entitled to relief on his Fifth Amendment claim, and
whether Jones is entitled to investigative funding.




       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.
        16 Jones v. Thaler, 383 F. App’x 380, 380 (5th Cir. 2010) (per curiam) (remanding in

light of Holland, 560 U.S. 631 (2010)).
        17 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).
        18 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.
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                                         No. 16-70003
                                              II
      AEDPA prescribes a one-year statute of limitations for a person in state
custody to bring a federal habeas claim, tolled while the state habeas petition
is pending. 19 Accounting for the period between denial of Jones’s petition for
certiorari on direct appeal and Jones’s filing of his state habeas petition,
Jones’s federal application was 149 days late—absent the equitable tolling
applied by the district court.
      The Director argues that Jones’s entire petition is time-barred and that
the district court improperly applied equitable tolling. Jones argues that the
Director waived this argument before the district court, and that in any event,
the district court did not err in tolling the deadline for his petition.
                                              A
      In granting the certificate of appealability, we observed that the Director
may have waived her limitations defense, but that we would not decide the
issue without further review of the record. 20 We now conclude that she did not.
After we remanded the case for the district court to consider equitable tolling
in light of Holland, both parties briefed the issue further, with the Director
arguing that Holland did not affect the district court’s decision to deny
equitable tolling. The Director extensively argued that Jones was not entitled
to equitable tolling under Holland because he had failed to exercise diligence
and Strickland’s error in calculating the deadline was not an extraordinary
circumstance. Following this briefing, the district court once again dismissed
Jones’s petition as time-barred.
      Jones then filed a motion to alter or amend the judgment under Federal
Rule of Civil Procedure 59(e). There, he raised for the first time the argument



      19   28 U.S.C. § 2244(d).
      20   Jones, 673 F. App’x at 376.
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                                       No. 16-70003
that Jones detrimentally relied on the district court’s order appointing
Strickland as counsel and directing Jones—and, by extension, Strickland—to
timely file his petition and affirmatively demonstrate its timeliness. The
Director’s response did not directly address this issue, instead arguing that
Jones had more generally not met the requirements for relief under Rule 59(e).
The district court ordered the Director to submit additional briefing specifically
addressing Jones’s argument that he was entitled to rely on the district court’s
order appointing counsel, and the Director did so, making much the same
arguments that she has on this appeal. This time, the district court granted
Jones’s request for equitable tolling.
       Jones filed an amended habeas petition. In response, the Director fully
briefed the limitations defense regarding Jones’s new claims. But the Director
did not specifically argue or brief the limitations defense regarding Jones’s
original claims. Instead, in a footnote, she stated:
              It is still the Director’s contention that the claims
              raised in this original petition (claims 1 and 5 above)
              are barred under AEDPA’s statute of limitations.
              Because this issue has already been thoroughly
              litigated in this Court, however, the Director will not
              reiterate this argument. In the interests of brevity, the
              Director will address only the application of the
              statute of limitations to Jones’s new claims (claims 2-
              4 above).

       Jones contends that the Director’s failure to fully brief the statute of
limitations issue in response to claims 1 and 5 of Jones’s amended petition—
including the Miranda claim on which we granted a COA—resulted in waiver.
He correctly points out that ordinarily, an affirmative defense not set forth in
a responsive pleading is waived. 21 But “[b]ecause Rule 8(c)’s purpose is to give


       21See Fed. R. Civ. P. 8(c); Motion Med. Techs., L.L.C. v. Thermotek, Inc., 875 F.3d 765,
771 (5th Cir. 2017).
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                                        No. 16-70003
the plaintiff fair notice, we recognize ‘some play in the joints.’” 22 A defendant
can avoid waiver if “(1) the defendant raised the affirmative defense at a
pragmatically sufficient time, and (2) the plaintiff was not prejudiced in its
ability to respond.” 23 The Director thoroughly raised her argument that Jones’s
Miranda claim was time-barred and that the district court should not grant
equitable tolling, and Jones had the opportunity to thoroughly brief his
response. She therefore did not waive her statute of limitations argument. 24
                                               B
       This said, we will affirm the district court’s decision to treat Jones’s
application as timely. The one-year statutory limitations period for a person in
state custody to bring a federal habeas claim is subject to equitable tolling if a
petition shows “(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely
filing.” 25 The decision to grant equitable tolling is based in a flexible, case-by-
case analysis, and so we review the district court’s decision to apply equitable
tolling for abuse of discretion. 26 While we have recognized that equitable
tolling should only be available in “rare and exceptional circumstances,” 27 we
have also observed that “‘the statute of limitations must not be applied too




       22  Motion Med. Techs., 875 F.3d at 771 (quoting Rogers v. McDorman, 521 F.3d 381,
385 (5th Cir. 2008)).
        23 Id. (internal quotation marks omitted).
        24 Jones suggests that the Director waived the argument by not appealing the district

court’s decision to treat his petition as timely; he argues that by failing to re-raise the issue
after the district court’s order, the Director failed to raise it in the “present proceeding.” But
the district court’s opinion and order altering its judgment vacated its previously final
judgment and reopened the proceedings, setting a schedule for an amended petition and
briefing. Jones’s argument on this point therefore lacks merit.
        25 Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted).
        26 Manning v. Epps, 688 F.3d 177, 182 (5th Cir. 2012).
        27 United States v. Wheaten, 826 F.3d 843, 851 (5th Cir. 2016).

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                                       No. 16-70003
harshly’ because ‘dismissing a first . . . habeas petition is a particularly serious
matter.’” 28
       The district court “[did] not reach [its conclusion that equitable tolling
was warranted] lightly.” First, it concluded that Jones had diligently pursued
his rights. He promptly wrote to the district court asking it not to appoint
Strickland as his federal habeas attorney, filed pro se motions to remove
Strickland and to have co-counsel appointed, and wrote to Strickland directly
to attempt to convince him to step down. During the state proceedings, he
pointed out to Strickland that Strickland had previously failed to timely file
the state writ application. 29 And after Strickland was appointed as Jones’s
federal counsel, Jones sent Strickland a letter specifically reminding him of
what he believed to be a September deadline—because Strickland had told him
that was the deadline—and asking him what steps he was going to take to file
the petition. These reflected “multiple, timely steps toward ensuring
competent habeas representation.” Further, the district court observed that its
appointment order—explicitly addressing the timeliness requirement—"could
have reasonably caused Jones to relax his vigilance regarding the exact filing
deadline, as well as his obligation to make sure Strickland met it.”
       We have scrutinized petitioners’ failure to inquire about the status of
applications for post-conviction relief even where their legal representation
was arguably inadequate. 30 But this is not a case where the petitioner slept on


       28  Manning, 688 F.3d at 183–84 (quoting United States v. Wynn, 292 F.3d 226, 230
(5th Cir. 2002)).
        29 The Director argues that this communication makes clear that the late filing of

Jones’s state petition was an afterthought, and that Jones’s primary concern was that
Strickland was not willing to engage with him on other potential claims. But the district court
could reasonably conclude that this at least reflected concern on Jones’s part about timely
filing. Cf. Holland, 560 U.S. at 653 (observing that equitable tolling requires a fact-intensive
inquiry).
        30 See Palacios v. Stephens, 723 F.3d 600, 606–09 (5th Cir. 2013); Manning, 688 F.3d

at 185–87.
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                                      No. 16-70003
his rights for months after learning that his counsel had failed to timely pursue
relief. 31 The district court did not abuse its discretion in determining that
“Jones’s independent efforts to avoid, to remove, and then to provide co-counsel
for Strickland, all of which occurred during the period he seeks to toll, together
with the appointment order, show that Jones exercised reasonable diligence in
the pursuit of his federal habeas rights.”
       Second, the district court determined that extraordinary circumstances
prevented Jones’s timely filing: the existing tension between Jones and
Strickland, compounded by the court’s appointment order insisting on
timeliness. It acknowledged that at base, the untimely filing was caused by
Strickland’s negligent miscalculation of the filing deadline—and that such a
“garden variety” claim of excusable neglect ordinarily will not justify equitable
tolling. 32 But here, the problem went beyond mere negligence. Jones and
Strickland were trapped in a “mutually undesired attorney-client relationship
that had broken down.” 33 In response to Jones’s concerns about Strickland’s
representation, the district court entered an order affirmatively addressing
potential timeliness issues by ordering Jones—and by extension Strickland,
the attorney who had just been appointed to represent him—to timely file the
petition. The district court therefore concluded that while Jones had not
demonstrated that Strickland engaged in “extreme neglect” or that his limited


       31  Cf. Manning, 688 F.3d at 187 (“Even if his counsel’s course of conduct starting on
November 17, 2000 would constitute due diligence if it had begun earlier, such activity does
not negate the nineteen-month-long period during which Manning is not, as far as the record
reveals, focus any attention on his petition for habeas relief.”).
        32 See Holland, 560 U.S. at 651–52; Lawrence v. Florida, 549 U.S. 327, 336–37 (2007).
        33 The court observed that part of the hostility between Jones and Strickland was

because Strickland refused to pursue what he believed to be frivolous claims—something
Jones had no right to demand—but was also due to Strickland’s failure to meet the state
filing deadline. The Director argues that Jones’s communications to Strickland demonstrate
that his sole concern was Strickland’s unwillingness to raise certain claims. But as we have
explained, Jones also raised the issue of timeliness. The district court did not err in
identifying timeliness as one concern Jones had with Strickland’s representation.
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                                      No. 16-70003
mental capacity and resources while incarcerated were “severe obstacles” that
prevented him from exercising his rights, the appointment order likely caused
Jones to reasonably relax his vigilance.
       The Director argues that these were not extraordinary circumstances
because the district court expressly determined that Strickland did not
abandon Jones. We recently declined to express a view on the burgeoning
circuit split over whether attorney wrongdoing must amount to effective
abandonment for it to constitute extraordinary circumstances warranting
equitable tolling. 34 To be sure, we have observed that a “simple ‘miscalculation’
that leads a lawyer to miss a filing deadline” is insufficient to warrant
equitable tolling where the attorney’s conduct did not “cross the line between
‘garden variety’ neglect and attorney abandonment” 35—but this case presents
more than a simple miscalculation. The crux of the district court’s decision to
grant equitable tolling was that Jones “lodged multiple, timely requests to
avoid counsel’s appointment based, at least in part, on concerns about counsel’s
previous failure to meet a state deadline, and the Court nevertheless forced
the continuation of a mutually undesired attorney-client relationship in an
order that, while not misleading or preventing Jones from doing anything,
probably caused Jones to relax his vigilance regarding the federal deadline.”
The district court did not abuse its discretion, especially given the flexibility
we must accord it in determining whether to equitably toll the limitations
period. 36




       34  See Jimenez v. Hunter, 741 F. App’x 189, 192–93 (5th Cir. 2018).
       35  Wheaten, 826 F.3d at 852.
        36 For example, this case is unlike Manning v. Epps, where we held that a district

court had abused its discretion in granting equitable tolling. In Manning, we held that
precedent squarely required the petitioner to show that he had exercised due diligence even
when represented by incompetent counsel, and therefore reversed the district court’s finding
of diligence based solely on the petitioner’s actions once he was appointed by competent
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                                      No. 16-70003
                                            III
       We turn next to Jones’s Fifth Amendment claim. We review a district
court’s grant of summary judgment denying federal habeas relief de novo. 37
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.” 38 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 from [Supreme
Court] precedent.” 39 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.” 40 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.” 41




counsel. See Manning, 688 F.3d at 183–87. Here, Jones persistently engaged with Strickland
at all points of the state and federal proceedings.
        37 Whitaker v. Davis, 853 F.3d 253, 257 (5th Cir. 2017).
        38 28 U.S.C. § 2254(d).
        39 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).
        40 Holland v. Jackson, 542 U.S. 649, 652 (2004) (quoting Williams, 529 U.S. at 413).
        41 White, 572 U.S. at 426 (emphasis omitted).

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                                       No. 16-70003
       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. 42 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.
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. 43 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. 44 And the Fulminante “plurality” Jones cites was in fact
a dissent on the precise point at issue—Justice White explicitly acknowledged



       42 Jones, 119 S.W.3d at 770–83.
       43 499 U.S. 279 (1991).
       44 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.
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                                       No. 16-70003
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. 45 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. 46 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. 47 We disagree, mindful of the Chapman
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. 48 The jury was
presented with extensive evidence that Jones murdered Peoples and Sanders.



       45 Fulminante, 499 U.S. at 282, 288, 295.
       46 See, e.g., 3B Fed. Prac. & Proc. Crim. § 855 (4th ed.).
       47 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).
       48 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).
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                                      No. 16-70003
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. 49 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.” 50 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. 51 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.” 52 Jones
did not dispute at trial or on appeal that he participated in the murders. 53
      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. 54 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.” 55 While it
concluded that the prosecution’s reference to the written confession in its




      49 Id. at 779–80 (majority opinion).
      50 Id. at 780.
      51 Id. at 782, 792.
      52 Id. at 780.
      53 Id. at 782.
      54 Id. at 780–81.
      55 Id. at 780.

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                                    No. 16-70003
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. 56 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.” 57
       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.” 58 The
confession “by no means belittled [Jones’s] overall mitigation case”—which
rested on evidence of Jones’s dissociative mental disorder. 59 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.” 60
       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


       56 Id. at 782.
       57 Id. at 783.
       58 Id. at 781.
       59 Id. at 782.
       60 Id. at 783.

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                                       No. 16-70003
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. 61
                                              IV
       Finally, we conclude that the district court did not improperly deny
Jones 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
court’s denial of funding under this section for abuse of discretion. 62
       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. 63 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




       61 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)).
       62 See Ayestas v. Davis, 138 S. Ct. 1080, 1094 (2018).
       63 Id. at 1092–93.

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                                       No. 16-70003
relief.” 64 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.” 65
       Jones sought investigative funding to develop a potential claim under
Wiggins v. Smith 66 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. 67 The district court, writing before the Supreme Court
decided Ayestas, offered several reasons for denying Jones § 3599 funding. It
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



       64  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.”).
        65 Id.
        66 539 U.S. 510 (2003).
        67 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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                                      No. 16-70003
Jones’s history of drug and alcohol abuse and other factors in his history
contributing to emotional disturbance. 68 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.” 69 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,” 70 but wholly failed to address this
requirement.
       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. 71 Because “the reasons
the district court gave for its ruling remain sound after Ayestas,” 72 we conclude
that remand is unnecessary and affirm the denial of funding.


       68   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.
        69 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.
        70 18 U.S.C. § 3599(g)(2).
        71 See Ayestas, 138 S. Ct. at 1094–95.
        72 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
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                                       No. 16-70003
                                              V
       We affirm the judgment of the district court.




“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’”).
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