IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-70003

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

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.

United States Court of Appeals

Fifth Circuit

FILED

December 9, 2016

Lyle W. Cayce

Clerk

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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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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 petition17 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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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 subsection (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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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 counsel27—

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. Ryan30 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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procedural default will not bar a federal habeas court from hearing 

a substantial claim of ineffective assistance at trial if, in the initialreview 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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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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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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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 offensespecificity 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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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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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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