Jones v. Stephens, Director TDCJ-CID

Filing 152

Memorandum Opinion and Order. Based on the foregoing, the Court DENIES Jones's petition for a writ of habeas corpus. In accordance with Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. § 2253(c), the Court DENIES Jones a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right. If Jones files a notice of appeal, he may proceed in forma pauperis on appeal. 18 U.S.C. § 3006A(7). (Ordered by Judge Terry R Means on 1/13/2016) (trt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
QUINTIN PHILLIPPE JONES,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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Civil Action No. 4:05-CV-638-Y
(death-penalty case)

MEMORANDUM OPINION AND ORDER
ON PETITION FOR WRIT OF HABEAS CORPUS
Quintin Phillippe Jones petitions for a writ of habeas corpus
under 28 U.S.C. § 2254, contending that his state conviction and
death sentence are unconstitutional.

The Court previously dis-

missed the application as time-barred but later reversed its
decision based upon a change in the law.
560 U.S. 631 (2010).
the

complete

record,

See Holland v. Florida,

Having reviewed the parties’ arguments and
the

Court

now

denies

the

petition

and

dismisses this action with prejudice.

BACKGROUND
I.

State-court proceedings

The victim in this death-penalty case was Quintin Phillippe
Jones’s eighty-three-year-old great aunt, Berthena Bryant, who was
beaten to death with a baseball bat in her home on September 11,
1999.

After speaking to neighbors, the police sought Jones for

questioning about a man named Ricky Roosa, whom Jones had previ-

ously recruited to do yard work for Bryant.

The police set up

surveillance on the home of Jones’s girlfriend, Paula Freeman.
Jones was arrested on outstanding traffic warrants as he attempted
to flee the home in a car driven by Freeman.

While in police cus-

tody, Jones confessed to Detective Ann Gates that his alternate
personality, “James,” had murdered Bryant (the “Gates statement”).
Nine days later, while still in custody and without a lawyer, Jones
made another confession to Texas Ranger Lane Akin that he and Roosa
had murdered two men during a drug deal six months earlier (the
“Akin statement”).
The Gates statement was admitted at trial, along with testimony describing Jones’s whereabouts on the night of the murder, DNA
evidence, and testimony that Jones had called Bryant’s sister from
jail and apologized for the murder.

The prosecution (“the State”)

relied upon the Akin statement at sentencing, along with other
evidence showing Jones’s participation in the double murder, his
juvenile criminal history, his gang membership, jail disciplinary
infractions, and a diagnosis of psychopathic personality disorder.
The defensive theory was that “James,” not Jones, participated in
the murder.

The defense offered testimony that Jones had suffered

a dysfunctional childhood and severe childhood abuse, which caused
him to develop the alternate personality, drug and alcohol addic-

2

tion, and severe self-injuring behavior.
and sentenced him to death.

The jury convicted Jones

(3 CR 408.)1

Jones pursued an appeal through new counsel. (3 CR 459). The
Texas Court of Criminal Appeals (“CCA”) affirmed the conviction.
Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003). The Supreme
Court declined review.

Jones v. Texas, 542 U.S. 905 (2004).

Attorney Wes Ball was appointed to file Jones’s state application for habeas-corpus relief, but he failed to do so.

The CCA

relieved Ball, appointed Jack Strickland as substitute counsel, and
set a new due date for the application.

Ex parte Jones, No.

57,299-01 (Tex. Crim. App. Dec. 3, 2003) (unpublished order).
Strickland filed the application in 2004.

(SHR 2.)

Strickland

filed the application thirty days late, but the CCA accepted it
after finding good cause.
relief in 2005.

(1 SHR Supp. 2.)

The CCA denied habeas

Ex parte Jones, No. WR-57,299-01, 2005 WL 2220030

(Tex. Crim. App. Sept. 14, 2005).

1

The bound, state-court paper record is cited as follows:
RR:
39 volumes of the trial court reporter’s record, preceded by
volume number, followed by page number.
CR:
3 volumes of the trial court clerk’s record, preceded by
volume number, followed by page number.
SHR: unnumbered volume of habeas court clerk’s record, followed by page
number.
SHR Supp.: 2 supplemental volumes of habeas court clerk’s record, preceded by
volume number, followed by page number.

3

II.

Federal Proceedings

Jack Strickland was appointed as federal habeas counsel.
(Doc. 7.)2

Strickland filed the federal petition in 2006, raising

two grounds for relief, but the Court dismissed it as time-barred
on the Respondent’s unanswered motion to dismiss.
Strickland did not appeal the dismissal.

(Doc. 28.)

After receiving communi-

cation from Jones that he did not wish to abandon the appeal, the
Court appointed Lydia Brandt as substitute counsel in 2008.
31.)

(Doc.

The Court vacated the judgment of dismissal, and Ms. Brandt

filed a response to the motion to dismiss.

(Docs. 43, 55.)

Court again found the petition time-barred, however.

The

(Doc. 59.)

Jones appealed, and the appellate court remanded the case for
consideration in the first instance of the Supreme Court opinion in
Holland.
2010).

Jones v. Thaler, 383 F. App’x 380 (5th Cir. June 17,

On remand, the Court held for a third time that equitable

tolling was not appropriate even under the less stringent Holland
standard.

Jones v. Stephens, No. 4:05-CV-638-Y, 2013 WL 4223968

(N.D. Tex. Aug. 15, 2013).

(Doc. 101.)

In a post-judgment motion, however, Jones asserted for the
first time that the magistrate judge’s order appointing Jack
Strickland contained provisions requiring that the petition be
timely filed and that the petition demonstrate its timeliness under

2

The electronic record is cited by CM/ECF number and .pdf page number
(rather than any page numbers on the original document).

4

the statute.

(Doc. 103.)

After receiving supplemental briefing,

the Court concluded that the provisions in the appointment order
dictated a different result in the equitable-tolling analysis. The
Court vacated the dismissal order and reopened the case.

Jones v.

Stephens, 998 F. Supp.2d 529 (N.D. Tex. 2014). (Docs. 106, 113.)
The Court ordered the parties to file amended briefing, as
briefing on the substantive issues was nearly eight years old.
Jones moved for a continuance, which the Court granted in part, and
moved for funding, which the Court denied.

The amended petition

was filed June 22, 2014, the amended answer was filed November 7,
2014, and Jones’s reply was filed February 3, 2015.
THE CLAIMS
Jones raises the following claims for relief:
1.

The trial court violated the Sixth Amendment by failing to
timely appoint trial counsel.

2.

Trial counsel were ineffective under Wiggins v. Smith, 539
U.S. 510 (2003) by failing to adequately investigate and
present mitigating evidence.

3.

Trial counsel were ineffective by failing to investigate and
develop “condition-of-the-mind” evidence.

4.

Trial counsel were ineffective for failing to seek timely and
relevant mental evaluations regarding the reliability of
Jones’s confession, his competency to stand trial, his criminal responsibility for capital murder, and his moral culpability and the appropriate punishment.

5.

The trial court violated the Fifth Amendment by admitting the
Akin statement at sentencing.
Claims 1 and 5 were exhausted in state court.

Claims 2, 3 and

4, as well as an unnumbered subclaim in claim 1, are presented for
5

the first time in this Court.

The amended petition is subject to

the standards set out in 28 U.S.C. § 2254 (“AEDPA”),3 which are
addressed where appropriate below.
CLAIMS LITIGATED IN STATE COURT
I.

Claim 1:

The timeliness of counsel’s appointment

Jones contends that the trial court violated the Sixth Amendment by failing to timely appoint counsel after his arrest.

The

convicting state court ruled that this claim was barred on habeas
review because Jones did not complain about the timeliness of
counsel’s appointment at trial and or on direct appeal.

In the

alternative, the state court held that the claim lacked merit
because: (1) during the time in which Jones was without counsel,
formal adversary judicial proceedings had not been initiated, (2)
Jones knowingly waived his rights and did not request counsel, and
(3) Jones failed to show prejudice.

(2 SHR Supp. 38-42).

Based on

the findings of the convicting court and its own review, the CCA
denied habeas relief.
A. Procedural bar
Respondent first contends the claim is barred from federal
review.

(Doc. 146, p. 38.)

The Court agrees.

Federal habeas

courts do not review a federal claim decided by a state court if
the state court decision rests on a state-law ground that is
independent of a federal question and adequate to support the

3

All subsequent citations to § 2254 are to 28 U.S.C. § 2254.

6

judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991); Finley v.
Johnson, 243 F.3d 215, 218 (5th Cir. 2001).

The contemporaneous-

objection rule is an adequate and independent state-law ground that
procedurally bars federal habeas review. E.g., Cardenas v. Dretke,
405 F.3d 244, 249 (5th Cir. 2005); Rowell v. Dretke, 398 F.3d 370,
375 (5th Cir. 2005).

Likewise, the Texas "Gardner rule," which

bars habeas review of record-based claims that were not raised on
direct appeal, is also an adequate and independent bar to federal
review.

See Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004); Ex

parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1996) (op. on
reh'g). Furthermore, when a state court rules that a claim is procedurally barred, the fact that the court, as here, alternatively
reached the merits of the claim does not vitiate the independent
and adequate state procedural bar.

See Cotton v. Cockrell, 343

F.3d 746, 754 (5th Cir. 2003).
Jones does not dispute that claim 1 was not raised in the
trial court or on direct appeal.

He makes no argument to avoid a

procedural bar based on Coleman.

(Doc. 149, p. 5-32).

procedurally barred.
B.
Respondent

Claim 1 is

See Coleman, 501 U.S. at 729.
§ 2254(d) determination

contends,

in

the

alternative,

that

the

state

court’s denial of the claim on the merits was not unreasonable.
Based on the following discussion, the Court agrees.

7

A claim adjudicated on the merits in state court may not be
relitigated in federal habeas court unless it (1) is “contrary to”
federal law then clearly established in the holdings of the Supreme
Court or “involved an unreasonable application of” such law, or (2)
“is based on an unreasonable determination of the facts” in light
of the record before the state court.

See § 2254(d); Harrington v.

Richter, 562 U.S. 86, 100 (2011). These determinations are limited
to the record that was before the state court that adjudicated the
claim on the merits.

§ 2254(d)(2); Cullen v. Pinholster, 131 S.

Ct. 1388, 1398 (2011).

For purposes of § 2254(d)(1), “clearly

established federal law” is the Supreme Court precedent that
existed when the state conviction became final.
Taylor, 529 U.S. 362, 379-80 (2000).

Williams v.

A state court’s decision is

“contrary to” Supreme Court precedent if the state court applies a
rule that contradicts governing law or confronts facts that are
materially

indistinguishable

from

arrives at an different result.

the

relevant

precedent

and

Coleman v. Thaler, 716 F.3d 895,

901 (5th Cir. 2013) (quoting Williams v. Taylor, 529 U.S. 362
(2000)).

A state court decision is based on a “unreasonable

application” of such law when the state court identifies the
correct governing legal principle but applies it unreasonably to
the facts of the case.
Factual

Id. at 901-02.

“determinations”

in

a

state

court

decision are

presumed correct, and a petitioner bears the burden of rebutting

8

them by clear and convincing evidence.
Titlow, 134 S. Ct. 10, 15 (2013).

§ 2254(e)(1); see Burt v.

A “state-court factual deter-

mination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first
instance.”

Titlow, 134 S. Ct. at 15 (citing Wood v. Allen, 558

U.S. 290 (2010)).

Further, a “decision adjudicated on the merits

in a state court and based on a factual determination will not be
overturned on factual grounds unless objectively unreasonable in
light of the evidence presented in the state-court proceeding.”
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); § 2254(d)(2).
Thus, “even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.”

Richter, 562 U.S.

at 102; White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (stating a
merely wrong holding or even “clear error” will not suffice under
§ 2254(d)(1)).

Congress meant these conditions to be difficult to

meet, and they stop short of imposing a complete bar on the
relitigation of claims already rejected in state proceedings.
Richter, 562 U.S. at 102.
1. Background facts
Bryant was found dead on the morning of Saturday, September
11, 1999. Detective Ann Gates called on Jones at Freeman’s home in
an effort to speak to Jones about a man who did yard work for
Bryant.
door.

When no one answered, Gates left her business card on the
(4 RR 43, 69, 75, 115-16; 31 RR 109-11, 197.)

9

Jones had

outstanding traffic warrants, so Gates instructed police officers
to set up surveillance on Freeman’s house and arrest Jones if
possible.

(4 RR 43-44; 31 RR 119-20.)

While the police were

watching, Freeman drove up in her car, Jones came out of the house,
jumped in the back of the car and kneeled down, and Freeman drove
away.

The police stopped her at a gas station and took Jones into

custody.

They found a syringe on the back floorboard where Jones

had been hiding.

Jones was arrested at 4:45 p.m. on the outstand-

ing warrants and for possession of a controlled substance.

(4 RR

36-41, 56-59, 70, 157-58; 29 RR 271-74.)
Gates began questioning Jones about 7 p.m.
123.)

Initially, she did not Mirandize Jones.

(4 RR 72; 31 RR

But she gave Jones

written Miranda warnings about 9 p.m., after she noticed that Jones
had no reaction to the news of Bryant’s death.
RR 126-27, 183.)

(4 RR 74, 76-81; 31

The written warnings stated:

(1) You have the right to remain silent and not make any
statement at all, and any statement you make may be used
against you at your trial;
(2) Any statement you make may be used as evidence
against you in court;
(3) You have the right to have a lawyer present to advise
you prior to and during any questioning;
(4) If you are unable to employ a lawyer, you have the
right to have a lawyer appointed to advise you prior to
and during any questioning;
(5) You have the right to terminate the interview at any
time.

10

(SX 82; SPX 11.4)

Jones waived these rights.

(4 RR 81.)

Jones then told Gates that he had been visiting various drug
houses at the time of the murder.

He agreed to show Gates those

locations on the following day, Sunday.
polygraph examination on Monday.

He agreed to take a

Additionally, Jones named Ricky

Roosa as the person who had done yard work at Bryant’s house.
RR 76, 87, 89, 92; 31 RR 132-33.)
10:30 on Saturday evening.

(4

This initial interview ended at

(4 RR 81; 31 RR 133.)

Detective Gates

then went to Freeman’s home to collect the clothing that Jones had
worn the previous day.

(4 RR 83-86; 30 RR 10; 31 RR 134.)

also gave Gates a photograph of Jones and Roosa.5

Freeman

(4 RR 86-88,

162-66.)
On Sunday, September 12th, Jones showed Gates the locations
that he had named in his alibi.

(4 RR 89-91; 31 RR 136.)

Gates

returned Jones to the jail, and he agreed to talk with her again
the next day.

(31 RR 137.)

Gates then proceeded to inquire at the

locations that Jones had identified, and she concluded that his
alibi was not checking out.

(4 RR 91.)

At 8:30 p.m., Jones

appeared before a magistrate judge on the drug possession charge.
The

magistrate

set

bail

and

gave

him

the

following

written

warnings:

4

Trial court exhibits are cited as follows:
SX, DX:
State and defense trial exhibits (in 37 RR, 38 RR, 39 RR)
SPX, DPX:
State and defense pretrial exhibits (in 4 RR)

5

On the back, in Jones’s handwriting, it states: “Road Dogs Killa, Li’l
GQ, Red” and the words “Higher then a bitch.” (SPX 13; 4 RR 166-68.)

11

(1) You have a right to hire a lawyer and have him/her
present prior to and during any interview and questioning
by peace officers or attorneys representing the state.
(2) If you are too poor to afford a lawyer, you have the
right to request the appointment of a lawyer to be
present prior to and during any such interview and
questioning. You may have reasonable time and opportunity to consult your lawyer if you desire.
(3) You have the right to remain silent.
(4) You are not required to make a statement, and any
statement you make can and may be used against you in
court.
(5) You have the right to stop any interview or questioning at any time.
(6)
(SPX 27.)

You have the right to have an examining trial.
Jones apparently did not request a lawyer at this time.

At about 9 a.m. on Monday, September 13th, Detective Gates
took Jones to the polygraph examination.

(4 RR 93.)

Meanwhile,

his clothes that had been seized from Freeman’s home tested
positive for blood, and Gates prepared a search warrant for blood
and hair samples.

(4 RR 93, 127; 31 RR 137; SPX 14.)

learned that Jones had failed the polygraph.

(4 RR 95.)

Gates then
She began

another interview about 1:22 p.m. with the intention of asking
Jones for a written statement.

Jones received the Miranda rights

for the third time and agreed to waive them.
written statement to a clerk typist.
83; SPX 15.)

He then dictated a

(4 RR 95-97; 31 RR 138-47; SX

It contained a detailed alibi describing his efforts

to find drugs.

(SPX 16; SX 84; 31 RR 147-57).

In the course of

making this statement, Jones verbally affirmed that he understood
12

his right to have an attorney present but wanted to cooperate with
the investigation.

(31 RR 156; SX 84.)

At 3:10 p.m., after the

statement was completed, Jones’s blood was drawn pursuant to a
warrant.

(4 RR 99-100; SPX 14.)

Gates and another detective continued speaking to Jones.
Gates told Jones that his clothing had tested positive for blood,
which would be compared to his aunt’s, and she confronted him about
the results of his polygraph. Jones began getting emotional, as if
the pressure were mounting on him to tell the truth.

He cried and

said he was not feeling well but declined medical attention. Gates
later acknowledged that it was possible Jones was going through
drug withdrawal, but she did not know.
158-59, 186-87.)
lawyer.

(4 RR 100-01, 112; 31 RR

Jones then asked if they thought he needed a

They told him that it was his decision, and he responded,

“I guess I want one.”

(4 RR 102; 31 RR 160.)

At this point, Gates

informed Jones that they could no longer talk to him, and she got
up to leave.

But Jones told Gates to stop.

He told Gates to stay,

asked the other detective to leave, and asked for a third officer,
Detective Thornhill, to come into the room.
160-61.)

(4 RR 102-03; 31 RR

When these conditions were met, Jones proceeded to give

a second written statement to Gates.

(4 RR 103-04; 31 RR 161-62.)

In this statement, Jones said that he had another personality
named James who killed his aunt with a baseball bat when he could
not find his aunt’s purse. (SX 85; SPX 17; the “Gates statement”.)

13

Jones cried, apologized, and asked for help with his drug problem
and mental problems.

(31 RR 192.)

The statement form provided,

for the fourth time, written Miranda warnings.
5:30 p.m. on Monday, September 13th.

Jones signed it at

(4 RR 105, 139; 31 RR 163;

SPX 17). Gates then prepared a probable-cause affidavit, and Jones
made his initial appearance on the Bryant capital murder charge.
(4 RR 107-08; 31 RR 172-73; SPX 18, 19.)

The magistrate gave the

same written warnings that Jones had received previously during his
appearance on the drug charge.

Jones signed the warning form, but

there is no indication that he requested counsel.

(SPX 19.)

He

remained in the county jail.
Six days later, on September 19th, Jones again appeared before
a magistrate judge and bail was revoked on two drug possession
charges.6

He again received and signed written Miranda warnings

from the magistrate on each charge.

(SX 144, 145.)

Meanwhile, the Texas Rangers had been investigating a double
homicide in a neighboring county.

(4 RR 195; 34 RR 66-94.)

There

had been little progress for months. Then Detective Gates received
information from the probation officer for Jones’s sister, Keisha,
that Jones and Roosa were involved.

Based upon information

obtained from Keisha, Ranger Lane Akin secured a search warrant for
Freeman’s house, which he executed with her consent in the early

6

One charge appears to relate to the syringe found at the time of arrest,
and the other appears to relate to an arrest the previous June while Jones and
Roosa were at a gas station. (35 RR 17; 36 RR 25-29.)

14

morning hours of September 22nd.

(SX 131, 132; SPX 28, 29; 4 RR

169-72, 195-96, 247; 34 RR 94-96, 128; 35 RR 92-101.)
Akin left the search on September 22nd to interview Jones. (4
RR 225; 34 RR 134.)

He informed Jones that he was investigating

the murders of Marc Sanders and Clark Peoples.

Jones admitted he

knew the victims but denied any involvement. Akin asked Jones what
he would say if they told him that Roosa said Jones was the “bad
guy” primarily responsible for the murders.

At that point, Jones

cried and orally admitted his involvement in the murders.
226-29; 34 RR 137-38.)

(4 RR

Jones described the murders as Akin wrote

down what he said on a statement form, asking questions as they
went along. The statement form contained written Miranda warnings,
however, Akin explained the warnings to Jones only after the statement was written out (but unsigned). (4 RR 230-45; 34 RR 139-43; SX
133; SPX 30 (the Akin statement)).
Over the next two days, September 23rd and 24th, Jones accompanied investigators to the river location where the bodies of
Sanders and Peoples had been found.

Along the way, Jones sponta-

neously identified places connected to the crime. (4 RR 255, 275.)
Eleven days later, on October 5, 1999, Jones signed a form requesting counsel.

Rex Barnett was appointed that day.

(1 CR 15.)

After a two-day hearing, the trial court suppressed the oral
statements Jones had made while driving around with Gates and with
the investigators of the double murder.

15

(6 RR 17, 21.)

The Gates

statement was admitted at the guilt stage of trial, and the Akin
statement was admitted at sentencing.

(SX 85; SX 133; 31 RR 164;

34 RR 143.)
2.

Analysis

Jones argues that counsel should have been appointed at each
of his magistrations: September 12 (the drug charge), September 13
(Bryant capital murder charge), and September 19 (the two drug
charges). He also contends that counsel should have been appointed
before the blood draw and all custodial interrogations, as these
were “critical stages” of the proceedings.
doc. 149, p. 13.)

(Doc. 129, p. 47-49;

The Court evaluates the state-court ruling on

the merits under the deferential standards in § 2254(d).
The controlling Supreme Court precedent states that the Sixth
Amendment right to counsel attaches when the adversarial judicial
process is initiated, “whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.”

Brewer v.

Williams, 430 U.S. 387, 398 (1977) (quoting Kirby v. Illinois, 406
U.S. 682, 689 (1972)); see Michigan v. Jackson, 475 U.S. 625, 629
(1986), overruled on other grounds, Montejo v. Louisiana, 556 U.S.
778, 797 (2009)7.

The right to counsel does not depend upon a

request by the defendant.

Brewer, 430 U.S. at 404; Crawford v.

Beto, 383 F.2d 604, 605 (5th Cir. 1967).

7

This does not mean,

The overruling of Jackson does not affect the rule regarding when
adversary judicial proceedings begin. See Rothgery v. Gillespie Co., 554 U.S.
191, 198 (2008).

16

however, that counsel must be appointed for a defendant at the
moment his right attaches.

Rather, once the right attaches, a

defendant must have counsel present at all “critical” stages of the
criminal proceedings.

United States v. Wade, 388 U.S. 218, 224

(1967); Powell v. Alabama, 287 U.S. 45, 57 (1932).
by the State is such a stage.
201, 204-05 (1964).
is not.

Interrogation

Massiah v. United States, 377 U.S.

A blood draw, as Jones concedes in his reply,

Wade, 388 U.S. at 227-28; (doc. 149, p. 22, n.2.)

Further, the right to counsel is offense-specific and does not
attach to uncharged offenses.

McNeil v. Wisconsin, 501 U.S. 171,

175 (1991); Texas v. Cobb, 532 U.S. 162, 167-68 (2001) (declining
to expand Sixth Amendment right to “factually related” offenses).
For suspects who are not charged, they retain the ability under
Miranda to obtain counsel and refuse police questioning. Cobb, 532
U.S. at 171, n.2.
The right to counsel may be waived, so long as the waiver is
voluntary, knowing, and intelligent.
U.S. 285, 292, 292 n.4 (1988).

Patterson v. Illinois, 487

Generally speaking, when a defen-

dant is admonished of his rights according to Miranda and agrees to
waive those rights, the waiver of his Sixth Amendment rights will
be considered a knowing and intelligent one.

Id. at 296.

The

waiver may be direct or, “in at least some cases waiver can be
clearly

inferred

interrogated.”

from

the

actions

and

words

of

the

person

See North Carolina v. Butler, 441 U.S. 369, 373
17

(1979).

Whether there has been a knowing, intelligent, and volun-

tary waiver of the right to counsel depends on the particular facts
and circumstances surrounding the case, including the background,
experience, and conduct of the accused.

Id. at 374-75 (citing

Johnson v. Zerbst, 304 U.S. 458 (1938)).

Waiver may not be pre-

sumed, but “once it is determined that a suspect’s decision not to
rely on his rights was uncoerced, that he at all times knew he
could stand mute and request a lawyer, and that he was aware of the
State’s intention to use his statements to secure a conviction, the
analysis is complete and the waiver is valid as a matter of law.”
See Moran v. Burbine, 475 U.S. 412, 422-23 (1986) (addressing
Miranda waiver).
Jones’s Sixth Amendment right to counsel attached in this
capital

murder

September 13th.

case

when

he

made

his

initial

appearance

on

At that time, Jones was formally charged with

capital murder. The Gates statement occurred prior to that attachment, as did the blood draw (which is not considered a critical
stage anyway).

The Akin statement occurred after attachment, but

the Akin interrogation involved a different, uncharged offense.
There is no suggestion in the record or briefs that law enforcement
resorted to physical or psychological pressure to elicit Jones’s
statements, nor is there any question about Jones’s comprehension
of the Miranda warnings, which he had received multiple times, or
the potential consequences of a decision to relinquish those

18

rights. (4 RR 95-108, 133-43, 226-48; 31 RR 138-95; 34 RR 135-60.)
In fact, the available evidence suggests the opposite. The defense
expert testified at sentencing that Jones was not suggestible and
that there was no evidence to conclude that “the statements he gave
to the police were in any way as a result of some kind of undue
susceptibility on his part to their interrogation procedures.” The
expert did not think Jones's statements were in any sense coerced.
(35 RR 150, 181.)
The state habeas court was not unreasonable when it concluded
that Jones’s Sixth Amendment rights had not attached when he was
cooperating with law enforcement and that, even if they had
attached, Jones voluntarily, intelligently, and knowingly waived
them.

See Montejo, 556 U.S. at 789 (holding that “no reason exists

to assume that a defendant . . . who has done nothing at all to
express his intentions with respect to his Sixth Amendment rights,
would not be perfectly amenable to speaking with the police without
having counsel present”) (emphasis in original).
Jones argues, however, that Maine v. Moulton, 474 U.S. 159
(1985) is the controlling Supreme Court precedent.

He argues that

the police violated the Sixth Amendment by arresting him on traffic
warrants to create an opportunity to interrogate him without
counsel about Bryant’s murder. According to Jones, he was de facto
arrested for the Bryant murder on the 11th, and his right to
counsel was first triggered by his initial appearance before the

19

magistrate on the 12th (for the drug charge).

(Doc. 129, p. 45-

48.) The Court also understands Jones to rely upon Moulton for the
assertion that Ranger Akin violated the Sixth Amendment when he
interviewed Jones about the Sanders/Peoples murders on September
22nd.

(Doc. 149, p. 25-26).

The argument here is that Akin’s

interrogation was a critical stage in the Bryant capital murder
proceedings, as Akin must have known that a confession to the
Sanders/Peoples murders could be useful proof of future dangerousness in the Bryant murder prosecution.

The Court does not read

Moulton to support any of these arguments.
To be clear, the record does not unequivocably establish that
Jones was arrested on traffic warrants because he was a suspect in
Bryant’s murder.

Gates testified that she wanted to speak to him

about people he had brought to his aunt’s house to do yard work.
It was only after speaking to Jones for a while that Gates learned
Jones was in the neighborhood on the night of the murder.
75, 115; 31 RR 110, 121, 125-26, 197-98.)8

(4 RR

But, assuming his

arrest on traffic warrants was a pretext to place him in custody

8

Jones’s asserted facts on this point are incorrect. He contends that,
when Detective Gates sought Jones at Freeman’s home, Jones was not there but
Freeman was present and interviewed by Detective Gates. (Doc. 149, p. 15.)
Actually, nobody answered the door at Freeman’s home, and Gates left her business
card.
Gates was able to interview Freeman later that day because Freeman
willingly followed the police to the station after they had stopped her and
arrested Jones, who was hiding in the back of her car. (4 RR 69, 161-62, 18082.)

20

for questioning about the murder, Moulton does not provide authority for a de-facto-arrest rule.
Jones contends that Moulton stands for the general rule that
the police violate the Sixth Amendment when they intentionally
create an opportunity to confront the accused without counsel being
present.
broad.

(Doc. 149, p. 14-19).

The holding in Moulton is not so

In Moulton, the police used a co-indictee to elicit incri-

minating statements from Moulton.

Moulton was indicted for theft;

thus, there was no dispute that Moulton’s Sixth Amendment right to
counsel, unlike Jones’s, was attached in the theft case when he
made the incriminating statements.

Moulton

did not need to

address, and did not purport to address, when the Sixth Amendment
right attached.

Rather, the critical issue was whether the Sixth

Amendment violation (caused by the police using a co-indictee to
circumvent Moulton’s right to have counsel present) could be cured
by the fact that the police used the co-indictee to also investigate new offenses to which there had been no Sixth Amendment
attachment, namely threats to the co-indictee and a short-lived
plan to murder witnesses in the upcoming trial.

The government

argued that law enforcement had the right and duty to investigate
these new offenses by using the co-indictee, which cured any improprieties under the Sixth Amendment.

The Supreme Court disagreed:

To allow the admission of evidence obtained from the
accused in violation of his Sixth Amendment rights
whenever the police assert an alternative, legitimate
reason for their surveillance invites abuse by law
21

enforcement personnel in the form of fabricated investigations and risks the evisceration of the Sixth Amendment
right recognized in Massiah. On the other hand, to
exclude evidence pertaining to charges as to which the
Sixth Amendment right to counsel had not attached at the
time the evidence was obtained, simply because other
charges were pending at that time, would unnecessarily
frustrate the public’s interest in the investigation of
criminal activities. Consequently, incriminating statements pertaining to pending charges are inadmissible at
the trial of those charges, notwithstanding the fact that
the police were also investigating other crimes, if, in
obtaining this evidence, the State violated the Sixth
Amendment by knowingly circumventing the accused's right
to the assistance of counsel.
Moulton, 474 U.S. 180 (emphasis added) (footnote omitted).

Thus,

Moulton does not address or support Jones’s assertion that his
right to counsel attached in the Bryant murder prosecution when he
was arrested on the traffic warrants.
Moreover, Moulton does not support Jones’s argument that
Ranger Akin violated the Sixth Amendment by questioning him without
counsel about a different, uncharged double murder.
were

not

present

in

Moulton,

as

the

statements

These facts
admitted

at

Moulton’s trial were “principally those involving direct discussion
of the thefts for which Moulton was originally indicted.”

Id. at

167. Moulton did not address the admissibility of Moulton’s statements regarding his inchoate plan to kill witnesses, as the
prosecution did not offer those statements.

Id.

If anything, the

italicized language quoted above suggests that the exclusion of the
Akin statement, simply because other charges were pending at the

22

time, would unnecessarily frustrate the public’s interest in the
investigation of new crimes.
Jones

cites

cases

from

the

Illinois

Supreme

Court,

the

Delaware Supreme Court, and the Texas Court of Criminal Appeals to
support his argument.

Wesbrook v. State, 29 S.W.3d 103, 118 (Tex.

Crim. App. 2000); People v. Kidd, 129 Ill.2d 432, 452, 544 N.E.2d
704, 712-13 (1989); Jackson v. State, 643 A.2d 1360, 1372 (Del.
1994).

These cases extend Moulton to prohibit the admission at

sentencing of post-attachment statements obtained from the accused
that relate to an uncharged offense.

These cases are based on

dicta in a Moulton footnote and are otherwise questionable.

See,

e.g., Thompson v. State, 108 S.W.3d 269, 270 (Tex. Crim. App. 2003)
(Keasler, J., concurring and dissenting) (advocating overruling
Wesbrook); Frye v. Commonwealth, 231 Va. 370, 391-92, 345 S.E.2d
267 (Va. 1986) (holding that the Moulton proscription against the
knowing circumvention of the right to counsel extends only to
pending charges concerning which the right has attached); State v.
Lale, 141 Wis.2d 480, 487, 415 N.W.2d 847 (Wis. Ct. App. 1987)
(holding that Moulton does not stand for the proposition that
initiation of formal proceedings on one set of charges creates a
Sixth Amendment right to counsel on other unfiled charges).
In any event, state-court decisions do not establish controlling precedent for federal habeas review.

And controlling federal

precedent includes only the holdings, as opposed to the dicta, of
23

Supreme Court decisions.
(2014).

White v. Woodall, 134 S. Ct. 1697, 1701

Accordingly, Jones’s interpretation of Moulton does not

control claim 1.
The state court here ruled that no Sixth Amendment right had
attached when Jones cooperated with law enforcement.

It held in

the alternative that Jones knowingly waived his rights and did not
request counsel.

Jones has not met his burden under § 2254(d) to

show that these rulings were “so lacking in justification that
there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”

Richter, 562

U.S. at 103.
C.

Brecht prejudice analysis

Respondent alternatively contends that, regardless of any
error, Jones is not entitled to relief because he has not shown
prejudice.

Under federal law, the harmless-error analysis asks

whether the error had a “substantial and injurious effect or
influence in determining the jury’s verdict.”

See Hopkins v.

Cockrell, 325 F.3d 579, 585 (5th Cir. 2003) (citing Brecht v.
Abrahamson, 507 U.S. 619 637-38 (1993)).

This stringent standard

compels habeas relief only if the constitutional error resulted in
“actual prejudice.”

See Brecht, 507 U.S. at 637.

not

jury,

influence

the

or

had

but

very

If the error did

slight

effect,

the

conviction should stand. See O’Neal v. McAninch, 513 U.S. 432, 437
(1995) (quoting Kotteakos v. United States, 328 U.S. 750, 776
24

(1946)).

If the Court is in “grave doubt” about whether the error

had a substantial and injurious effect, then the error is not
harmless. Id. at 436.
Jones contends that the admission of the Gates statement at
his trial was the equivalent of being forced to represent himself
and that prejudice should be presumed under White v. Maryland, 373
U.S. 59 (1963) because nothing counsel could do at trial could ever
cure the one-sided confrontation that resulted in his confession.
(Doc. 149, p. 22).

White is inapposite, however, because it

involved an uncounseled guilty plea, where the degree of prejudice
can never be known because only counsel could have enabled the
accused to know all the defenses available before he plead guilty.
White, 373 U.S. at 60 (citing Hamilton v. Alabama, 368 U.S. 52, 55
(1961)).

The alleged error in this case is the admission of an

uncounseled confession during the presentation of the case to the
jury.
to

This would be constitutional trial error which “is amenable

harmless-error

analysis

because

it

may

be

quantitatively

assessed in the context of other evidence presented.”
U.S. at 629 (ellipsis and internal quotes omitted).

Brecht, 507
The Court

therefore does not presume prejudice.
Jones also argues that, by the time he was appointed counsel,
he had confessed to all three murders such that his conviction and
death sentence were foregone conclusions. Respondent contends that

25

other, overwhelming evidence at the guilt and punishment phases
rendered any error harmless.
Overwhelming evidence of guilt can render constitutional trial
error harmless.
Cir. 2003).

E.g. Burgess v. Dretke, 350 F.3ed 461, 472 (5th

The Court finds such evidence in this case.

Freeman

testified that Jones never came home after she drove him to his
aunt’s neighborhood on the night of her murder.

(29 RR 270-71; 31

RR 73.) Tiffany testified that she took Jones to his aunt’s house,
and when Jones returned, he had acquired $30 for drugs and was
“wide-eyed and scared” and looking over his shoulder.

(31 RR 73-

79.) After Detective Gates left her card on his door, Jones demonstrated a guilty conscience by convincing Freeman to leave work
early and attempting to flee by hiding in the backseat of her car.
(29 RR 271-74.)

DNA consistent with the victim’s DNA was found on

Jones’s clothing.9

(30 RR 192-93.) And, while in jail and repre-

sented by counsel, Jones called Mattie Long and apologized for the
killing. (29 RR 55-56.)
The Court similarly concludes that, given the other evidence
of

Jones’s

future

dangerousness,

including

evidence

of

his

participation in the Sanders and Peoples murders, the admission of
the

Akin

statement

at

punishment

9

did

not

prejudice

Jones.

The Court includes the blood evidence in this analysis because Jones’s
clothes, containing visible blood and tissue, were seized from Freeman’s house
with her consent. (30 RR 13, 18, 32; 4 RR 83, 165.) The uncounseled blood draw
that Jones complains about in this claim only tied him to his own bloodstain on
a washcloth found in Freeman’s home, with no obvious connection to the murder.
(30 RR 51, 161, 193.)

26

Freeman’s son testified that, one day during a time when Roosa
lived with them, Jones asked him and his brother to go to a
friend’s house because Jones and Roosa might do something bad that
Jones “would have to go to jail for.”

The boys played down the

street for a while, and a black car drove up to their house.

When

they returned home, the black car was gone, nobody was home, and
there was blood on the floor and wall.

Using Luminol, the police

later found blood stains on the floor and wall near the couch, as
well as the couch itself.

(34 RR 54-58, 172-77).

Freeman testi-

fied that when she found the blood stains in her house, Jones told
her that he had been in a fight with a friend.

But the next time

she saw him, he wanted money to leave town.

(35 RR 14-16).

Jones’s sister, Keisha, gave her probation officer and Ranger Akin
information that she had received directly from Jones regarding his
participation in the Sanders and Peoples murders.

Keisha acknow-

ledged much of that information in her testimony, but said Jones
only acted because Roosa had threatened Freeman and her kids.
Keisha testified that Jones told her he had been talking to Peoples
about buying drugs when Roosa hit Peoples on the head with a
barbell.

They tied Peoples around the neck and took his money,

jewelry, and cocaine.

Jones then went out to the car and talked

Sanders into coming into the house, luring him to his death. Jones
and Roosa then loaded the bodies into the car and left.
101).

(35 RR 93-

In addition to the testimony of Freeman, Freeman’s son, and

27

Keisha, mental-health experts for both the State and the defense
spoke frankly about Jones’s participation in the double murder,
based on his statements during his evaluations.

(35 RR 201-03; 36

RR 84-85.)
The jury’s future-dangerousness finding was also supported by
the brutal bludgeoning of the victim, an elderly relative of
Jones, Jones’s involvement in the Hoova Crips gang, and his
juvenile history, including an assault on two teachers, possession
of a handgun, and setting fire to another student’s hair.

Given

all the other evidence presented at trial, Jones fails to show that
his uncounseled confessions had a substantial influence on the
jury’s verdict.

See O’Neal, 513 U.S. at 437.

He fails to demon-

strate prejudice under Brecht.
In sum, claim 1 is procedurally barred. The Court also holds,
in the alternative, that the state court’s denial of the Sixth
Amendment claim was not unreasonable, and alternatively, there is
no Brecht prejudice.

The Court denies claim 1.
D. Claim 1a

In a related, unnumbered claim (“claim 1a”), Jones contends
that trial counsel rendered ineffective assistance by failing to
assert this Sixth Amendment violation at trial. (Doc. 129, p. 50.)
Respondent does not address this new claim in his answer.

In his

Reply, Jones argues that the subclaim is not limitations-barred
because it relates back to claim one.

28

He also argues that his

failure to exhaust does not result in procedural default because
state habeas counsel’s ineffectiveness excuses any default.

Jones

contends the claim may be reviewed by this Court de novo. (Doc.
149, p. 5-11.)
Under the AEDPA’s exhaustion requirement, a federal court may
not grant habeas relief unless it appears that the applicant has
exhausted the remedies available in the courts of the state.
§ 2254(b)(1)(A); Richter, 562 U.S. at 103.

See

This requirement is

satisfied when the substance of the federal habeas claim has been
fairly presented to the highest state court. Morris v. Dretke, 413
F.3d 484, 491 (5th Cir. 2005) (quoting Mercadel v. Cain, 179 F.3d.
271, 275 (5th Cir. 1999)).

“A State shall not be deemed to have

waived the exhaustion requirement or be estopped from reliance upon
the requirement unless the State, through counsel, expressly waives
the requirement.” See § 2254(b)(3); Woodfox v. Cain, 609 F.3d 774,
792-793 (5th Cir. 2010).

An application for habeas relief may be

denied on the merits, notwithstanding the failure of the applicant
to exhaust state remedies.

§ 2254(b)(2).

When a claim has not been exhausted, and the state court to
which the petitioner would be required to present his claim in
order to meet the exhaustion requirement would now find the claims
procedurally barred, the claim is defaulted for purposes of federal
habeas review.

Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991);

Williams v. Thaler, 602 F.3d 291, 305 (5th Cir. 2010).

29

For

unexhausted claims of ineffective assistance of trial counsel that
are deemed “substantial,” however, the ineffective assistance of
state habeas counsel may excuse any procedural bar. See Trevino v.
Thaler, 133 S. Ct. 1911, 1918 (2013); Martinez v. Ryan, 132 S. Ct.
1309, 1320 (2012).
merit.”

A claim is “substantial” if it has “some

Martinez, 132 S. Ct. at 1318.

The Court need not address the arguments lodged by Jones to
surmount limitations and procedural default because the record is
sufficient to review and deny this claim on the merits.

See Busby,

359 F.3d at 720 (noting that habeas court may look past any procedural default if the claim may be resolved more easily on the
merits); Barksdale v. Quarterman, No. 3:08-CV-736, 2009 WL 81124,
at *3, n.4 (N.D. Tex. Jan. 9, 2009) (Kinkeade, J.) (noting that
Court need not address alleged limitations bar because claims lack
merit); Russell v. Cockrell, No. 3:01-CV-1425, 2003 WL 21750862, at
*3, n.3 (N.D. Tex. July 25, 2003) (Fitzwater, J.) (holding that
court need not address potential limitations bar where claim has no
merit). This claim against trial counsel is a derivative claim; it
has merit only to the extent the Sixth Amendment claim upon which
it is based has merit.
Sixth

Amendment

The Court has already addressed Jones’s

argument

and

rejected

his

interpretation

of

Moulton. The Court did so under the deferential standard of review
in § 2254, however, a de novo review yields the same conclusions

30

for the same reasons.

The Court also concluded that any error

would be harmless under Brecht.
Therefore, trial counsel were not ineffective for failing to
lodge a Sixth Amendment objection at trial.

See Koch v. Puckett,

907 F.2d 524, 527 (5th Cir. 1990) (holding that Strickland does not
require counsel to make futile motions or objections); Romero v.
Lynaugh, 884 F.2d 871, 879 (5th Cir. 1989) (holding that counsel is
not ineffective for failing to block the receipt of evidence that
is clearly admissible).

The Court concludes that claim 1a has no

merit and that the procedural-bar exception in Martinez/Trevino is
unavailable because the claim is not “substantial.”

The Court

denies claim 1a.

II.

Claim 5: The Akin statement

The CCA on direct appeal ruled that the admission of the Akin
statement during the punishment phase violated Jones’s Fifth Amendment rights as protected by Miranda, but concluded that it was
harmless error under Chapman v. California, 386 U.S. 18 (1967). In
claim 5, Jones challenges the Chapman analysis.
The CCA first held that Jones’s waiver of his Fifth Amendment
rights was constitutionally invalid under the circumstances.

The

State had argued under Elstad that Jones’s written confession,
signed after Miranda warnings were properly given and waived, need
not have been suppressed solely because Akin had obtained the
31

earlier, unwarned (but voluntary) oral confession.
Elstad, 470 U.S. 298 (1985).

See Oregon v.

The CCA disagreed and distinguished

Elstad, concluding that Jones did not give two statements but gave
one unwarned statement, observing “at the very least, a serious
misunderstanding by law enforcement . . . of the dictates of
Miranda.”

Jones, 119 S.W.3d at 773-75.

But the CCA found the error harmless after a lengthy analysis.
It first noted that the sentencing phase of trial does not focus on
whether Jones committed the extraneous murders, but on whether he
would probably commit future criminal acts of violence that would
constitute a continuing threat to society and whether there are
sufficient mitigating circumstances to warrant a life sentence
rather than a death sentence.
concluded:

With this background, the CCA

(1) the State established Jones’s involvement in the

extraneous murders through several witnesses independent of the
Akin statement, 2) other evidence supported the jury’s answer to
the special issues, namely the brutal beating of his kindly aunt,
several assaultive juvenile offenses, and his gang membership, (3)
the content of the statement itself included self-serving assertions that Roosa was the primary actor and that Jones simply
followed

Roosa’s

directions

which,

if

believed

by

the

jury,

mitigated Jones’s responsibility and supported the defensive theory
that Roosa set Jones down the path toward his alter ego’s murder of
his aunt, (4) the State only mentioned the Akin statement twice

32

during closing arguments, one of which was “troubling” but nevertheless dismissed as a rhetorical flourish in response to the
defense argument, and (5) there were no collateral implications
detrimental to Jones’s overall mitigation case, which rested on an
asserted dissociative mental disorder, and Jones did not dispute at
trial or on appeal that he had, in fact, participated in the
Sanders/Peoples murders.

Jones, 119 S.W.3d at 777-83.

Jones contends that this ruling was unreasonable in law and
fact because (1) the “clearly established federal law” is a fourJustice holding in Arizona v. Fulminante, 499 U.S. 279 (1991) that
the harmless-error rule does not apply to erroneously admitted
coerced confessions, (2) the CCA underestimated the prosecutors’
emphasis on the Akin statement, and (3) the CCA’s finding that the
Akin statement contained “a wealth of mitigating facts” is unreasonable because the statement implicated Jones in the double murder.
(Doc. 129, p. 107-09, 114).

Respondent argues that the CCA pro-

perly conducted its inquiry under Chapman. (Doc. 146, p. 80-84).
In Chapman, the Supreme Court held that “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.”

Chapman, 386 U.S. at 24.

The State bears the burden of

proving that an error passes muster under this standard.
Brecht, 507 U.S. at 630.

Id.;

The parties agree that the Court reviews

the state court’s Chapman analysis for reasonableness under the

33

deferential standard of review in § 2254(d).
doc. 146, p. 81.)

(Doc. 129, p. 104;

In conducting this review, the CCA’s ultimate

decision is tested, not every jot of its reasoning.

Morrow v.

Dretke, 367 F.3d 309, 314 (5th Cir. 2010) (citing Santellan v.
Cockrell, 271 F.3d 190, 193 (5th Cir. 2001)).
For two reasons, the Court initially disagrees that the fourjustice holding in Fulminante is the applicable federal law.
First, Fulminante addresses coerced confessions that violate the
Fifth and Fourteenth Amendments.

The error found in this case, on

the other hand, was a violation of Miranda, which requires the
exclusion of unwarned statements even if they are voluntary and not
coerced.

Jones, 119 S.W.3d at 772-76 (analyzing this claim under

Miranda and Elstad not Fulminante); see Elstad, 470 U.S. at 307.
In a nutshell, the CCA found that Jones’s waiver of his rights was
constitutionally invalid because Akin did not Mirandize Jones
before questioning him.

Jones, 119 S.W.2d at 775.

While inadmis-

sible, such non-Mirandized statements are not necessarily involuntary or coerced within the meaning of Fulminante. See Dickerson v.
United States, 530 U.S. 428, 444 (2000) (noting that the disadvantage of the Miranda rule is that statements which may be by no
means involuntary may nonetheless be excluded). In this very case,
for example, the defense expert did not think Jones’s statements
resulted from undue susceptibility to police interrogation procedures.

(35 RR 150.)
34

Second, even if Fulminante applied, Jones’s interpretation of
its holding does not withstand scrutiny.

For support, Jones cites

Panetti v. Quarterman, 551 U.S. 930 (2007) and its application of
Marks

v.

United

States,

430

U.S.

188

(1977).

Marks

holds,

according to Panetti, that when there is no majority decision, the
narrower holding controls. Panetti, 551 U.S. at 949 (citing Marks,
430 U.S. at 193).

As Jones acknowledges, the Fulminante Court was

not fragmented on the matter of whether a harmless-error analysis
should apply.

Five Justices agreed that a harmless-error analysis

should apply to the erroneous admission of a coerced confession,
though a different majority found the error harmful, resulting in
a

reversal

of

Fulminante’s

conviction.

The

Court

therefore

disagrees with Jones that the alleged error in this claim is
structural error under Fulminante.

Fulminante, 499 U.S. at 309

(noting that admission of involuntary confession is classic trial
error); see also Neder v. United States, 527 U.S. 1, 18 (1999).
The Court next addresses Jones’s argument that the CCA underestimated the State’s emphasis on the error.

His argument on this

point is conclusory; he reiterates the prosecutors’ closing arguments that the CCA specifically quoted and addressed, and then
concludes the CCA failed to give appropriate consideration and
weight to the facts.

Mere disagreement with the state court does

not demonstrate unreasonableness. See Orman v. Cain, 228 F.3d 616,
619 (5th Cir. 2000).

Jones also points to an exchange on cross35

examination between his counsel and Ranger Akin, in which Akin
concedes

he

questioning.

did

not

give

Jones

Miranda

warnings

(Doc. 129, p. 114); (34 RR 148).

prior

to

Jones does not

clarify how defense counsel’s cross-examination can affect an
analysis of the State’s emphasis of the error.

Even if it could,

the exchange does not discuss the contents of the statement but
rather the circumstances surrounding its production.
Next, Jones asserts that the CCA improperly credited mitigating facts contained within the Akin statement.

The essence of

this argument is that a harmless-error analysis must overlook
factors that do not favor Jones’s position.

Jones provides no

clearly established federal law that a harmless-error analysis
cannot consider the total impact–-both the good and the bad--of the
erroneously admitted statement.

On the contrary, a review under

Chapman considers the “trial record as a whole.” See United States
v.
not

Hasting, 461 U.S. 499, 509 (1983).
unreasonable

for

crediting

The state-court ruling is

mitigating

facts

in

the

Akin

statement.
Jones makes two additional arguments in his reply. He asserts
that the emphasis on other evidence showing Jones’s participation
in the murders is improper because the CCA should not have assumed
that the State could have proven Jones’s participation in the
double murder without the Akin statement. To the extent that Jones
may be suggesting that Miranda requires suppression of the “fruits”

36

of an unwarned statement, the Supreme Court has rejected this
argument where the unwarned statement is voluntary.

See United

States v. Patane, 542 U.S. 630, 639 (2004) (citing Elstad, 470 U.S.
at 307).

Moreover, in this case, the other evidence showing

Jones’s participation in the double murder were not “fruits” of
Jones’s unwarned statement but flowed from Keisha’s statements to
her probation officer and the independent recollections of Freeman
and her son, all of which are untainted by any constitutional
violation.

(4 RR 247; 34 RR 94-96.)

Finally, Jones complains that Respondent’s argument fails to
acknowledge the devastating impact a confession has on the jury.
The CCA opinion, however, “emphasizes that a defendant’s confession
is generally likely to have a profound impact on a jury” and
concluded specifically that the Akin statement did not carry the
weight a confession might normally bear. Jones, 119 S.W.3d at 780,
783.

Jones’s suggestion that this concept was overlooked by the

CCA is not supported by the record.
Jones fails to demonstrate that the CCA’s Chapman analysis
was unreasonable.

The Court denies claim 5.

37

CLAIMS NOT PRESENTED IN STATE COURT
I. Claims 2, 3, and 4
In claim 2, Jones asserts that trial counsel rendered ineffective assistance under Wiggins v. Smith by failing to sufficiently
investigate mitigating information about Jones’s life. (Doc. 129,
p. 52).

In claim 3, Jones alleges that counsel failed to develop

condition-of-the-mind evidence that could have negated the mens rea
and lessened Jones’s moral culpability in the punishment phase.
(Doc. 129, p. 79).

In claim 4, Jones argues that counsel failed to

conduct an adequate life-history investigation, causing his experts
to provide unreliable evaluations on sanity, competency to confess,
competency to stand trial, and mental-health based mitigation.
(Doc. 129, p. 91.)
Respondent initially contends these claims are barred by the
statute of limitations. (Doc. 146, p. 22.) Jones replies that the
same facts that justified equitable tolling for the original petition justify equitable tolling for these new claims.

Jones also

argues that it would violate the interests-of-justice standard for
the substitution of counsel to limit his claims to those raised in
the original petition, given that this Court removed original
federal counsel and later concluded (for purposes of equitable
tolling)
undesired.

that

the

attorney-client

relationship

was

mutually

See Martel v. Clair, 132 S. Ct. 1276 (2012).

Jones

argues that limiting his claims to those raised in the original
38

petition would violate Christenson v. Roper, 135 S. Ct. 891 (2015),
which requires the substitution of federal counsel to avoid a
conflict of interest in the pursuit of post-dismissal remedies when
the initial federal petition was time-barred.

Finally, citing to

Fourth Circuit precedent, Jones argues that Jack Strickland was
ineffective as state habeas counsel and that Martinez/Trevino would
have no meaning if claims could not be raised after the statute of
limitations has run. (Doc. 149, p. 33-43.)
Respondent also contends that the new claims are procedurally
barred due to a failure to exhaust in state court and are meritless.

(Doc. 146, p. 23, 48.)

Jones replies that Martinez/Trevino

excuses any procedural default based on a failure to exhaust
because Jack Strickland was ineffective as state habeas counsel.
Jones

asserts

that

he

has

shown

deficient

performance

under

Strickland by pointing to red flags in the record that placed trial
counsel and state habeas counsel on notice that more investigation
needed to be done.

He states that he has attempted to show pre-

judice but, to the extent he has not carried his burden to show
prejudice, it is because this Court denied him the time and funding
to do so.

For the same reason, he asserts that it is premature for

the Court to address these claims against trial counsel on the
merits. (Doc. 149, p. 43-44.)
As stated previously with respect to claim 1a, the Court may
look past any limitations bar, as well as any procedural default,

39

when an asserted claim has no merit.

See Busby, 359 F.3d at 720;

Barksdale, 2009 WL 81124, at *3, n.4; Russell, 2003 WL 21750862, at
*3, n.3; see also § 2254(b)(2).

The Court therefore reviews these

unexhausted claims de novo to determine whether they have merit.
Carty v. Thaler, 583 F.3d 244, 253 (5th Cir. 2009) (recognizing
that the AEDPA-mandated deference to state-court decisions does not
apply when state court did not adjudicate claim on the merits).
Based on the following review, the Court concludes that the claims
have

no

merit

and

Martinez/Trevino
“substantial.”
II.

is

that

the

unavailable

procedural-bar
because

the

exception

claims

are

in
not

See Martinez, 132 S. Ct. at 1318.
Facts relating to claims 2, 3 and 4

Jones was taken into custody on September 11, 1999.
Barnett was appointed as lead counsel on October 5.

Rex

(1 CR 15.)

A

month later, an investigator, E.D. Loven, was appointed with an
initial budget of $1,000.
appointed on March 1, 2000.
set for February 12, 2001.

(1 CR 20.)
(1 CR 23.)
(1 CR 28.)

Co-counsel Larry Moore was
In June of 2000, trial was
In August of 2000, counsel

filed more than fifty pretrial motions, including a motion for
evidence “relative to diminished mental capacity of the defendant”
at the time of the alleged offense and at the time he made any
statements, a motion for grand-jury transcripts, and a motion to
discover punishment evidence including expressions of remorse by
the defendant.

(1 CR 43-106; 2 CR 1-208.)
40

Also in August, Loven

was replaced by investigator Janie Brownlee, who had a budget of
$2,500.

(2 CR 157.)

Five months before trial, on September 8, 2000, counsel
advised the trial court that he had reason to believe Jones was not
competent to stand trial.

The trial court ordered a competency

examination by Dr. Ann Turbeville.

(2 RR 5-6; 2 CR 209-10.)

Dr.

Turbeville examined Jones on September 16, 2000, and concluded,
among other things, that he was competent.

She provided a written

report detailing Jones’s learning disabilities, drug abuse, selfinjuries, psychiatric hospitalization, fighting and truancy, dropping out of school, playing with fire when he was young, extreme
alienation from his family, and feeling like he had two personalities.

(2 CR 211.)

Four months before trial, defense expert Dr. Raymond Finn
examined Jones for competency, intelligence, suggestibility, and
psychopathy, and also administered the Rorschach Inkblot Test and
the Violence Risk Assessment Test.

(2 CR 236-37; 35 RR 113-17.)

On December 21, 2000, the prosecutor notified defense counsel
that Jones had complained of hearing voices in his head. (2 CR
261.)

On January 19, 2001, the prosecutor notified counsel of

potentially mitigating information received from Jones’s twin
brother, Benjamin, including information that Jones had different
personalities known as David and John, talked to himself, heard
voices, severely injured himself, was not alone when he killed his

41

aunt, and that they had never had a good relationship with their
mother, whom Ben described as a crack head who once beat Jones with
a broom.

The prosecution provided additional potential Brady

information from Blaine Holliman that Roosa was with Jones when he
beat his aunt to death, that both men killed Peoples and Sanders,
that Jones cried when he confessed to Holliman, that Jones talked
to himself, and that Holliman believed Jones was “slow, not crazy.”
(2 CR 280-81.)
Two days before trial, on February 13, 2001, trial counsel
retained another psychologist, Carol Wadsworth, to evaluate Jones.
(Doc. 129-13).

Dr. Wadsworth diagnosed Jones with heroin and

cocaine dependence, dysthymic disorder, reading disorder, borderline personality disorder, and antisocial personality disorder.
She summarized his academic, emotional, and behavioral problems
from childhood to present, including early substance abuse and
minimal contact with treatment facilities.
impulsive and self-destructive.

She described Jones as

(Doc. 129-13, p. 2-4.)

Trial began on February 15, 2001.

(29 RR.)

Testimony showed

that, despite her meager monthly income, the victim occasionally
made small loans to various people, including Jones. (29 RR 30-32;
SX 1.) On September 10, 1999, Bryant told her sister, Mattie Long,
that she had refused Jones’s request for a loan earlier in the day.
Long testified that Bryant had seemed uneasy about her conversation
with Jones. (29 RR 51-52.) The next morning, neighbors discovered

42

Bryant deceased. (29 RR 95-96.)

She had suffered defensive bruis-

ing to her wrists and arms, a 9" by 12" bruise on her upper back,
a 9" by 6" bruise on her upper arm, a broken collar bone, a broken
shoulder blade, two fractured ribs, lacerations and an abrasion
over her left ear, and a crushed skull.

(30 RR 113-138.)

A

bloody, broken baseball bat was recovered at the scene, with a
Raggedy Ann doll oddly placed on top of it.

(29 RR 104, 153.)

Blood and brain matter covered the floor, furniture, and ceiling.
(29 RR 147-49.)

There was no sign of forced entry, and shoe

impressions found in the dirt around the victim’s carport had class
characteristics consistent with the tread of Jones’s shoes. (29 RR
138-39, 30 RR 49-50.)
Bryant’s car was located a half-mile from her house.

In the

passenger seat was a canvas car cover, under which was found a step
rug, the victim’s purse and wallet, a Bible, and a square piece of
cloth.

(29 RR 119, 123, 204-07.)

Fingerprints were lifted from

the vehicle, the purse, and a pink receipt inside the purse, but
the police were unable to determine who made them.
223-24.)

(29 RR 208,

Trial counsel elicited testimony from the State’s crime

lab technician that the wallet contained three tithing envelopes
with $60 that were apparently overlooked by the perpetrator.
RR 87-90.)

(30

A DNA analyst testified that the victim’s blood was on

clothing belonging to Jones that had been seized from Freeman’s
home.

(30 RR 192-93.)

43

Freeman testified that she gave Jones a ride to Bryant’s
neighborhood on the evening before the murder and he did not come
home that night.

(29 RR 270; 31 RR 66.)

Tiffany Jones, an

acquaintance, testified that she and Blaine Holliman had spent the
evening with Jones snorting cocaine and smoking marijuana while
they packaged cocaine for resale.

(31 RR 68-71.)

Tiffany testi-

fied that Holliman had fronted Jones some money for drugs, but
Jones wanted more and Holliman refused.

Jones asked Tiffany for a

ride to his aunt’s house. (31 RR 70-73.)

At Jones’s direction,

Tiffany dropped him off some distance down the street from her
house.

Tiffany testified that, when Jones returned a couple hours

later, he was sweaty, wide-eyed, and scared, with $30 cash that he
used to buy more drugs from Holliman.

(31 RR 74-79.)

The Gates statement was admitted. (SX 85; 31 RR 164.)

Mattie

Long also testified that Jones called her from jail after his
arrest and apologized for killing her sister.

(29 RR 55-56.)

The defense recalled Tiffany, who testified that she saw a
white man who could have been Roosa walking down the street earlier
in the evening, and that she did not see any blood on Jones’s
clothes when he returned from Bryant’s house. (31 RR 102, 233-34.)
Defense counsel also recalled Freeman, who testified that she spoke
to Jones about what happened and that she is now afraid of Roosa.
(31 RR 239-40.)

Counsel presented testimony from a neighbor who

had seen a white van parked at the victim’s house between 2:45 and

44

3:15 a.m. on the night she died.

(32 RR 9-11.)

Finally, trial

counsel elicited testimony that Roosa, a white man, had been doing
yard work for the victim during the summer, and that Detective
Gates thought this was suspicious.

(31 RR 198-99; 32 RR 22-31.)

In jury argument, the prosecutor theorized that Jones had
killed his aunt because she decided not to let him take advantage
of her anymore.

The prosecutor emphasized Jones’s confessions to

the police and to Mattie Long, as well as his actions on the night
of the murder and the presence of the victim’s blood on his
clothing.

(33 RR 11-21.)

The State argued that the victim gave

Jones money only to keep him from stealing and that Jones’s
behavior after finding the detective’s card on his door was
indicative of guilt. (33 RR 38-46.)
Trial counsel acknowledged that Jones was present at the time
of the murder based on the blood evidence, but argued that the
State did not bring the proof necessary to conclude beyond a reasonable doubt that he was the killer. Counsel emphasized the State’s
failure to explain the presence of the white van, failure to
identify a footprint in the driveway that did not match Jones’s
shoes, failure to exclude the victim and her sister from fingerprints on the car, even though they were the only two people
allowed to drive it, failure to lift any prints from the house,
failure to use a blood spatter expert, and failure to determine a
time of death.

Counsel argued that the State’s theory did not fit

45

the facts because Bryant had refused to give Jones money on
previous occasions, Tiffany did not testify that Jones was acting
surreptitiously but thought Jones wanted to go to Bryant’s house to
sleep, Tiffany had seen a man in the street earlier in the evening
who looked like Roosa, and the victim’s neighbor was concerned
about Roosa’s being at the victim’s house.

Counsel also pointed

out that the police failed to investigate the doll that was left at
the scene and mini-blinds that were found on the hood of the
victim’s car. Counsel argued that if the purpose of the murder was
theft, it did not make sense that the victim still had $60 in her
wallet. Counsel argued that all these unanswered questions existed
because the police stopped trying after they got a confession out
of Jones. (33 RR 21-33.)
Trial counsel argued that Jones’s confession was involuntary
based on his drug use, youth, lack of sophistication and education,
history of suicide and mental illness, and counsel complained that
law enforcement failed to record the confession.

Counsel argued

that the confession did not comport with the physical evidence.
Finally,

counsel

concluded

that

there

was

no

evidence

Jones

intended to rob his aunt because she had always given him money
before.

(33 RR 33-39.)

At punishment, the State introduced evidence that Jones had
been on juvenile probation for carrying a handgun and for assaulting a teacher.

(33 RR 55-83.)

Jones’s juvenile records, which

46

were in evidence, also showed a referral for arson and for assault.
(SX 99, 100.)

The State introduced evidence of Jones’s drug

problems, his gang tattoos and gang membership, and testimony about
his involvement in the Peoples/Sanders murders that the Court
previously discussed. (33 RR 90-91; 34 RR 29-45, 52-58, 85-148.)
The defense witnesses at sentencing included Freeman and
Keisha, who testified about Jones’s dysfunctional, transient childhood, childhood abuse, his severe drug addiction and self-injuring
behavior, and his alternate personality, “James,” who appeared when
Jones was on drugs or in trouble.

Keisha specifically testified

that, when Jones was seven and she was ten, her stepbrothers made
her and Jones have sex while they watched.

The sexual abuse

continued at the hands of an older brother, Michael.

Freeman and

Keisha also testified that Jones was no longer active in a gang.
(34 RR 208-09; 35 RR 6-34, 49-111.)

Freeman’s son, called by the

State, testified on cross-examination that he was close to Jones,
who acted like a father to him.

He said Jones told him not to do

drugs and never join a gang because once you join, you cannot get
out.

(34 RR 62-64.)
Magistrate Judge Allan Butcher also testified for the defense.

Jones appeared before Butcher in connection with the Bryant capital
murder charge.

Butcher testified that Jones appeared to be

remorseful and that his eyes filled with tears as soon as he told
Jones what he was charged with.

(35 RR 38-41.)

47

Psychologist Raymond Finn testified for the defense that he
has particular expertise in dealing with dissociative or multiple
personality disorders.

He diagnosed Jones with a milder form of

dissociative identity syndrome that consists of amnesia and depersonalization, which is a coping mechanism for dealing with the
self-loathing that results from severe and repeated childhood
trauma and sexual abuse. Jones’s drug abuse was a way of deadening
himself emotionally.

Dr. Finn said “James” murdered Bryant and

that Jones knew what “James” did but had no control over it.

Dr.

Finn said that, with dissociative disorders, it is not unusual for
the milder personality to be very remorseful and apologetic and
that Jones was, in fact, tearful, upset, and very distressed about
what James had done.

He said Bryant was the one person who had

treated Jones decently, and Jones loved the victim “as much as he
probably loved anybody in his life.”

(35 RR 133-59.)

Dr. Finn described Jones’s family life as very unstable,
involving a good deal of abuse of most of the younger siblings.
(35 RR 159, 221-22.)

He explained that when a chid’s parents fail

to provide positive guidance and actually hurt the child or allow
the child to be hurt, the child learns a world view that life is
dangerous, people are no good, and nobody can be trusted. Dr. Finn
testified that when Keisha reported the abuse to their mother, the
mother basically said she was a liar and threw her out of the
house.

Dr. Finn said a mother’s disregard is in many ways worse

48

than the original abuse, and the child grows up believing they will
not be treated fairly or protected by anybody.

(35 RR 160-61.)

Dr. Finn testified that Jones’s likelihood of engaging in
future violent acts if released into the community was moderate to
low.

(35 RR 163-165.)

He believed that the risk of violence was

lower, however, in a highly controlled prison environment where
Jones would have less access to drugs and could take advantage of
treatment programs.
prison.

Dr. Finn believed Jones could be managed in

(35 RR 165-167.)

On rebuttal, the State offered testimony from four additional
witnesses.

Jones’s probation officer from 1994 testified that

Jones had been an eighth grader doing ninth-grade work, was a star
pupil with leadership qualities, and was charming and engaging. He
said Jones was selected to go to Georgia as a representative of his
school, that Jones did not seem weak, meek, or mentally ill, and he
never noticed “James.”

(35 RR 229-43.)

A corrections officer in

the jail testified that Jones refused to comply with a verbal
command, swore at the officer, and told him, “You don’t need to
know my name.”

(36 RR 5-11.)

A deputy sheriff testified that he

arrested both Roosa and Jones at a gas station in June of 1999, and
the men appeared to be friends.

(36 RR 25-29.)

Finally, Dr. J. Randall Price testified for the State that, in
his opinion, Jones did not have any mental illness or dissociative
disorder but had psychopathic personality disorder.

49

He testified

that he was in agreement with Dr. Turbeville on this point.
42-47, 58.)

(36 RR

Dr. Price said that Jones did not hesitate to talk

about the sexual abuse he had experienced and did not appear to
have been dramatically impacted by it, such that it would have led
to a dissociative problem.
Jones

was

malingering

(36 RR 48-51.)

about

having

two

Dr. Price believed

personalities

because

Jones’s simplistic good/evil split is not consistent with what the
experts know about identity problems.

He said that the fact that

“James” manifested before the murder occurred could be explained by
Jones’s drug abuse or his desire to explain away other wrong acts.
Dr. Price said that, when mental illness truly leads to crime,
rarely is a partner involved.

Furthermore, Dr. Price said that

amnesia is one of the classic earmarks for dissociative identity
disorder but there was no “lost time” apparent in the materials or
in Jones’s interview.

(36 RR 52-58.)

Dr. Price agreed that some of Jones’s self-injuring behavior
was suicidal because he was depressed and on a lot of drugs.

Other

times, like when he was striking himself on the head or burning
himself on the arm, could be attributed to attention-seeking or
being under the influence of alcohol or other substances.

Dr.

Price said that self-injury can also trigger endorphin production
in the brain, which makes a person feel good.

Dr. Price did not

think Jones’s expressions of remorse were genuine.

(36 RR 59-71.)

He opined that, when it comes to predicting future violence,

50

instrumental violence, such as the robbery/murder in this case, is
a more stable trait than reactive violence, which results from an
emotional

reaction.

significant

(36

probability

RR

73-74.)

that

Jones

criminal acts of violence.

He

believed

would

there

continue

to

was

a

commit

(36 RR 90–91.)

In addition to the foregoing summary of evidence in the
record, Jones attached several exhibits to his amended petition.10
They include a police report, medical records showing a 1998
admission into John Peter Smith Hospital for suicidal ideations and
drug problems, a written report from Dr. Wadsworth, orders related
to the appointment of investigators and experts, billing statements
from counsel, and an invoice from Dr. Wadsworth.

There is also an

itemized billing statement from Investigator Brownlee and Jones’s
analysis of it, along with a “prospective witness interview list.”

III.

Law applicable to claims 2, 3, and 4

Jones’s allegations concern the timing and extent of counsel’s
investigation into Jones’s life history and mental health, including

counsel’s

use

of

experts.

Such

claims

of

ineffective

assistance are governed by Strickland v. Washington, 466 U.S. 668
(1984).

Under that well-known standard, a petitioner must first

demonstrate that counsel’s representation fell below an objective
10
Some of these exhibits are in the record. The rest are considered under
the Court’s power to review the merits of an unexhausted claim under § 2254(b)(2)
and under the Supreme Court’s directive that procedurally defaulted claims may
be excused under Martinez only if they have “some merit.”

51

standard of reasonableness, considering all the circumstances.
Strickland, 466 U.S. at 687-88. A petitioner must also demonstrate
prejudice, meaning a reasonable probability, sufficient to undermine confidence in the outcome, that but for counsel’s unprofessional

errors

different.

the

result

of

the

proceeding

would

have

been

Strickland, 466 U.S. at 694.

IV. Claim 2:

Analysis

In claim 2, Jones asserts that trial counsel’s sentencing
investigation was ineffective under Wiggins v. Smith, 539 U.S. 510
(2003). He complains generally that the investigation was done on
the eve of trial, terminated prematurely, and underfunded.
The amount of time or money spent on an investigation is not
a litmus test for deficient performance.

Moreover, Jones’s com-

plaint that the investigation was done on the eve of trial and
terminated prematurely is not supported in the record. Trial began
February 15, 2001.

Ten months before trial, counsel met with

counsel for Roosa and spoke with Dr. Finn.

Six to eight months

before trial, counsel conducted legal research for their pretrial
motions, conferred with each other several times, obtained a new
investigator, and participated in the pretrial hearing.

Mr. Moore

began “work on locating defense witnesses” on September 27, 2000,
five months before trial.

About the same time, counsel received

and reviewed the State’s witness list.

52

(Doc. 129-8.)

Investigator Brownlee’s records show that between October 5
and December 12, 2000, she spoke with or tried to speak with
Jones’s mother, father, and girlfriend, Mattie Long; and the
victim’s neighbor, Mrs. Hill; and met or spoke with co-counsel
Larry Moore five times.

From January 10 to February 16, 2001,

Brownlee spoke with or attempted to speak with Jones’s father,
mother, grandmother, sister Keisha, brothers Ben and Mike, Mike’s
wife Brandi, Blaine Holliman, Tiffany Jones, Jason Jackson, Paula
Freeman, Dr. Finn, Kim Moore, the neighbor who saw the white van
(“Mr. Kissentaner”), and “Mrs. Briggs’s brother.”

During that

time, Brownlee’s records document at least fifteen conferences with
counsel, telephone calls to testifying witnesses, the transportation of Ben and Keisha to Dr. Finn, and interviews or attempts to
locate seven witnesses or people who are not identified by name.
(Doc. 129-10.)
“prospective

Jones has also provided the Court with an undated

witness

interview

list”

containing

the

names

of

Tiffany, Blaine, Terri White and Judith Van Hoof (guardians ad
litem in the juvenile cases), Donald Murphy (Jones’s stepfather),
Leeversia Jones (Jones’s grandmother), Richard Bone and Mark Turner
(teacher assault victims).

Attached to the list are notes regard-

ing the conflicting stories of Jones and James regarding the night
of the murder, Jones’s three juvenile referrals (arson, assault on
teacher, and unlawfully carrying a weapon), a referral to an
alternative school for setting a girl’s hair on fire, three self-

53

inflicted

gunshot

Learning Center.

wounds,

and

Jones’s

attendance

at

Pathways

(Doc. 129-11.)

In 2000, Brownlee’s initial budget of $2,500 was certainly
less than the funds expended today, but her hourly rate was only
$35, her voucher exceeded the budget by $440, and there is no
indication that she was held to the initial budget or would not
have been paid more.
locating witnesses.
out-of-court time.

As noted, co-counsel Moore also worked on
Trial counsel together logged 587.9 hours of

(Docs. 129-6, 129-8.)

Mr. Moore was in fre-

quent contact with Brownlee, and he documents at least twenty
conferences with her before trial.

(Doc. 129-8.)

Much of Jones’s argument is based on the assumption that trial
counsel is ineffective if his billing records and file documentation are not detailed enough to show that counsel conducted a
“comprehensive inquiry into the client’s life and background,”
which Jones contends is required under bar-association guidelines
and Wiggins.
for

(Doc. 129, p. 52-61.)

counsel’s

conduct

beyond

But there are no strict rules
the

general

requirement

of

reasonableness. See Pinholster, 131 S. Ct. 1406-07. The deficiency
prong of Strickland asks “whether an attorney’s representation
amounted to incompetence under ‘prevailing professional norms,’ not
whether it deviated from best practices or most common custom.”
Richter, 562 U.S. at 105.
the

standard

for

judging

Even under the Court’s de-novo review,
counsel’s

54

representation

is

a

most

deferential one.

Id.

The purpose of the effective-assistance

guarantee is not to improve the quality of legal representation,
but

simply

to

ensure

that

Strickland, 466 U.S. at 689.

defendants

receive

fair

trials.

Standards such as those promulgated

by the American Bar Association are “only guides” to what is
reasonable, not its definition.

Bobby v. Van Hook, 558 U.S. 4, 8-9

(2009).
Moreover, the presumption is in counsel’s favor.

Counsel is

“strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.” Pinholster, 131 S. Ct. at 1403 (quoting Strickland,
466 U.S. at 690)).

This standard not only gives trial counsel the

benefit of the doubt, but affirmatively entertains the range of
possible reasons counsel may have had for proceeding as they did.
Id. at 1407.
sufficiently

Therefore, Jones’s suggestion that the absence of
detailed

billing

records

demonstrates

deficient

performance is unavailing.
Jones also alleges that counsel overlooked “red flags” that
indicated a need for further investigation. The asserted red flags
are issues that were obviously investigated or known to counsel,
but Jones asserts that counsel should have done “more.” Counsel is
not required to investigate every conceivable line of mitigating
evidence no matter how unlikely the effort would be to assist the
defendant at sentencing.

Wiggins, 539 U.S. at 533.

55

“Counsel has

a duty to make reasonable investigations or to make a reasonable
decision

that

makes

particular

Strickland, 466 U.S. at 691.

investigations

unnecessary.”

Strategic decisions made by counsel

following a thorough investigation are virtually unchallengeable,
while decisions made after a less-than-complete investigation are
reasonable “precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at 690-91.
Jones fails, for the most part, to specify the people and
information counsel overlooked, much less provide evidence of them.
This alone is a basis to deny the claim.

Koch, 907 F.2d at 530

(holding that conclusory allegations are not sufficient to raise a
constitutional issue). The Court will nevertheless examine the
whole record to determine whether the red flags support Jones’s
conclusion that counsel unreasonably limited their investigation.
A.

Pretrial Red Flags

Jones first contends that the reports of Dr. Turbeville and
Dr. Wadsworth signified that further investigation was needed
regarding (1) Jones’s educational disabilities, including what was
meant by “emotional disturbance” in his school records, how Jones’s
behaviors manifested on a daily basis, and the dates the behaviors
first appeared; (2) what testing was administered by the school;
(3) whether Jones had Attention Deficit Disorder (“ADD”) and if so,
whether he was medicated for it; (4) whether Jones’s drug dependency was caused by childhood sexual abuse and other instances of

56

abuse and neglect; (5) whether Jones was genetically predisposed to
drug and alcohol addiction; (6) a possible involuntary intoxication
defense, using the expert opinion of an addiction specialist; (7)
whether the prison could provide an adequate structured environment
if Jones were given a life sentence; and (8) possible brain damage
due to polysubstance abuse.

(Doc. 129, p. 61-70.)

Jones also

contends that counsel had an obligation to request his own competency expert, rather than rely on the trial court’s expert, Dr.
Turbeville, and he complains that Dr. Wadsworth evaluated Jones
only two days before trial began.

(Doc. 129, p. 56.)

First, defense counsel did, in fact, hire their own competency
expert.

Dr. Finn first evaluated Jones four months before trial.

He administered the Georgia Court Competency Test and, like Dr.
Turbeville before him, found Jones competent to stand trial. (35 RR
138, 142, 145.)
Furthermore, Jones’s complaint that Dr. Wadsworth evaluated
Jones only two days before trial, which implies that counsel
received her report too late to investigate any further, overlooks
Dr. Finn’s participation in this case. Although he did not provide
a written report (which made his cross-examination more difficult
for the State, 35 RR 168), the record reveals the breadth of Dr.
Finn’s contributions. Counsel first contacted Dr. Finn in April of
2000, ten months before trial, and he conferred with Dr. Finn about
ten times throughout the case, including concerning counsel’s

57

preparation for the cross-examination of Dr. Price.
p. 5-15.)

(Doc. 129-8,

In addition to the competency test, Dr. Finn adminis-

tered the WAIS-III intelligence test, the Rorschach Inkblot test,
the

Gudjohnnson

Interrogative

Suggestibility

Scale,

the

Hare

Psychopathy Checklist, and the Violence Risk Appraisal Guide. (35
RR 138-49.)

Dr. Finn testified that he was specifically looking

for “any kind of emotional or psychological illnesses or problems
that played any role at all in his actions.” (35 RR 141-42.)
Relevant to Jones’s first complaint about the deficiently
investigated school records, counsel provided Dr. Finn voluminous
school records from about age four up through the time that Jones
dropped out of high school.
testified

that

Jones

had

(35 RR 123-24, 140, 169.)
academic

problems

in

Dr. Finn

grade

school,

attended special education classes for problems with language
skills, received speech therapy for a stutter, and had behavior
problems beginning in middle school.

Jones was expelled from

almost every school he attended after that.
Finn

assessed

Jones’s

IQ

at

79

but

(35 RR 218-19.)

acknowledged

on

Dr.

cross-

examination that Jones’s IQ scores throughout his school career
were higher. (35 RR 144-45, 170-72.)
It is apparent from counsel’s billing activity that Dr. Finn
also assisted trial counsel in preparing to cross-examine the
State’s expert, Dr. Price.

(Doc. 129-8, p. 15.)

Counsel elicited

testimony from Dr. Price that people with dissociative disorders

58

are likely to have problems with behavior, conduct, and school performance, that Jones was in special education until about eighth
grade due to a speech impediment and learning disability, and that
Jones was eventually placed in a self-contained classroom.

(36 RR

123-25.)
In addition to the foregoing, the report of Dr. Wadsworth
describes Jones’s being held back in elementary school, special
education classes, varying grades, problematic classroom behavior,
impulsivity, attention-seeking behavior, short attention span, low
tolerance for frustration, disruptive behavior, assault, truancy,
tardiness, and dropping out.

(Doc. 129-13, p. 3.)

There is no

question that defense counsel were aware of Jones’s difficulties in
school.
Jones contends, however, that counsel should have interviewed
teachers and administrators regarding Jones’s emotional disturbance, his early behaviors, testing administered by the school,
whether Jones had ADD, and school referrals to the Parents Guidance
Center and the YMCA.

(Doc. 129, p. 62.)

According to Dr.

Wadsworth, the school records showed that Jones was evaluated for
emotional

disturbance

in

fourth

grade.

(Doc.

129-13,

p.

3.)

Although Dr. Wadsworth does not state the test results, the fact
that she does not report a diagnosis of emotional disturbance
suggests that the tests ruled it out.

In fact, Dr. Price testi-

fied, based on the school records, that emotional disturbance was

59

ruled out.

(36 RR 78-79.)

Similarly, Dr. Wadsworth reported that

ADD was suspected and that Jones’s parents were asked to have him
evaluated.

There is no indication in any record before this Court

indicating, and Jones does not suggest, that he was ever diagnosed
with ADD.11
referrals

Likewise, there is no suggestion that the school
were

related

to

something

distinct

and

unknown

to

counsel.
In short, counsel possessed a significant body of information
about Jones’s education, as well as significantly more valuable
mitigating evidence of childhood abuse, deprivation, and mental
illness that formed the basis of counsel’s defensive strategy.

A

competent attorney could elect a strategy that did not include
running down additional minutiae about Jones’s behavior in school,
emotional disturbance, possible ADD, and parent referrals.

See

Richter, 562 U.S. at 89 (holding that counsel is entitled to
“balance limited resources in accord with effective trial tactics
and strategies”). The asserted red flags in Jones’s school records
do not suggest a deficient investigation by counsel.
Next, Jones contends counsel should have investigated a correlation between Jones’s drug dependence and possible long-term
changes to Jones’s brain caused by childhood sexual abuse and
neglect. He asserts that counsel never explored or obtained expert

11

The record indicates that Jones’s mother was present in the courtroom,
supporting him during the trial. (35 RR 85.)

60

witness testimony to explain to the jury the significance of
adverse

childhood

between

the

experiences,

childhood

sexual

including

especially

molestation,

(among

the

many

link
other

instances of abuse and neglect), and Petitioner’s escalating drug
dependence

and

contradicted

addiction.

by

the

(Doc.

record.

129,

The

p.

63.)

connection

This
between

claim

is

Jones’s

difficult childhood and his drug abuse was a major theme for the
defense.

(36 RR 174.)

Keisha described the childhood abuse and

neglect.

(35 RR 51-69, 108-10.)

Dr. Finn testified that Jones

developed amnesia and depersonalization disorder as coping response
to severe and repeated childhood abuse and that Jones turned to
drugs

as

a

emotionally.

way

of

medicating

(35 RR 150-52.)

strategy or testimony.

himself

and

deadening

Jones fails to acknowledge this

He therefore fails to argue or show that

counsel’s choice of experts on this issue was
unreasonable.

himself

professionally

See Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014)

(holding that the selection of an expert witness is the paradigmatic example of the type of strategic choice that, when made
after a thorough investigation of the law and facts, is virtually
unchallengeable).

Although Jones relies on a scientific article

from 2006 concerning long-term changes in the brain caused by
childhood trauma, counsel cannot be deficient for failing to pursue
the science discussed in an article that did not yet exist.

See

generally Maryland v. Kulbicki, 136 S. Ct. 2, 4 (2015) (per curiam)

61

(holding that trial attorneys were not ineffective for failing to
find report that presaged future developments in forensic science
for lead-bullet analysis).
Jones next asserts that counsel should have investigated
whether Jones was genetically predisposed to drug and alcohol
addiction and should have used an addiction specialist to testify
that Jones’s addiction was “involuntary.”

Jones asserts that

“counsel did no investigation into alcohol and substance abuse.”
(Doc. 129, p. 64.)

Again, this is contradicted by the record.

Keisha and Freeman described Jones’s early and severe drug abuse
for which they had both independently helped him seek treatment.
(34 RR 208-09; 35 RR 6-8, 27-29, 69-70, 75, 78.)

Keisha testified

that she was once on drugs “real bad” and that their mother was on
crack for most of their lives.

(35 RR 52, 77.)

Dr. Finn attri-

buted Jones’s “long history of drug abuse” to his childhood
circumstances and mental illness.

(35 RR 152.)

And counsel

retained Dr. Wadsworth specifically for an “evaluation of [Jones’s]
substance abuse history to assist with legal proceedings.”
129-13, p. 2.)

(Doc.

Counsel knew from Dr. Wadsworth that Jones’s

brother abused alcohol and drugs, his father abused alcohol, and
his mother used crack cocaine.

(Doc. 129-13, p. 3.)

Counsel

designated Wadsworth as a testifying witness, but then made a
strategic decision not to call her based on their evaluation of the

62

testimony of Dr. Finn and Dr. Price.

(Doc. 129-7, p. 2; doc. 129-

6, p. 8.)
Counsel’s

choice

of

experts,

made

after

a

thorough

investigation of the law and facts, is virtually unchallengeable.
Hinton, 134 S. Ct. at 1089.

This Court is not required to examine

the relative qualifications of the experts hired and called by
trial counsel against the experts that might have been hired.

Id.

In this regard, Jones does not state what an addiction specialist
would have testified about, but instead refers the Court to four
internet articles discussing addiction.

(Doc. 129, p. 64, n.7.)

The Court has attempted to review the articles, but the link to one
article does not work.

The other three are dated in 2014 or 2015.

The Court cannot conclude that these articles, which discuss the
physical science of addiction and recovery, were available to
counsel in 2001.
ineffectiveness.

As such, they cannot support the claim of
Jones does not show that counsel’s failure to

hire an addiction specialist was professionally unreasonable.
Jones relatedly complains, based on Dr. Turbeville’s report,
that counsel did not conduct a sufficient investigation to support
an informed decision about an involuntary-intoxication defense and
did not attempt to locate treating physicians and agencies regarding Jones’s self-inflicted gunshot wounds and drug dependence.
(Doc. 129, p. 67.)

The trial record is replete with testimony

about Jones’s drug abuse, his sister’s drug abuse, his mother’s

63

drug abuse, his self-injuring behavior, and three self-inflicted
gunshot wounds.

Counsel offered sixty-seven pages of psychiatric

records from John Peter Smith Hospital, which were admitted into
evidence and show that Jones shot himself in the chest in 1996 and
shot himself in the hand and leg on two prior occasions.

They

include progress notes and personal information about Jones’s
living situation.

They show a diagnosis of depression, adjustment

disorder with mixed disturbance of emotions and conduct, cannabis
abuse, history of polysubstance abuse, and stuttering.

The diag-

nosis also notes “low finances” and a brother (Ben) “presently
incarcerated.”

(35 RR 141; DX 15.)

The hospital records attached

to Jones’s petition, which do not appear in the trial record,
reflect a voluntary hospital admission for drug dependence on March
27, 1998.

But he was discharged the same day and referred to an

inpatient substance abuse program, which Freeman did testify about
at trial.

(34 RR 208-09; 35 RR 5-7); (doc. 129-12, p. 16, 19-21.)

In

of

light

this

record,

Jones’s

asserted

red

flag

in

Dr.

Turbeville’s report does not demonstrate a deficient investigation
into Jones’s treating physicians and agencies.
Moreover, to the extent this particular complaint relies on
counsels’ having overlooked an involuntary-intoxication defense
based on the involuntary nature of addiction, he provides no legal
authority for this defense. On the contrary, Texas does not appear
to recognize such a defense.

Heard v. State, 887 S.W.2d 94 (Tex.

64

App.–-Texarkana 1994, pet. ref'd) (citing Torres v. State, 585
S.W.2d 746 (Tex. Crim. App. [Panel Op.] 1979, and rejecting
argument that, to an alcoholic, drinking is not voluntary); see
Hernandez v. Johnson, 213 F.3d 243, 250 (5th Cir. 2000) (noting
that Texas courts have consistently ruled that alcoholism may not
be the basis for an involuntary intoxication defense). Jones fails
to demonstrate that counsel was ineffective for failing to investigate an involuntary intoxication defense.
Jones next asserts that counsel was ineffective for failing to
investigate whether the prison could provide an adequate structured
environment if Jones were given a life sentence. In fact, Dr. Finn
administered a violence risk assessment to Jones and testified that
Jones could be managed in prison and would become less violent as
he aged.

(35 RR 166-67.)

Trial counsel also elicited testimony

from Jones’s juvenile probation officer that Jones did well in a
structured environment and eventually completed his probations
successfully.

(35 RR 240, 244-45; 36 RR 124.)

Even the State’s

expert agreed, at least on cross-examination,12 that Jones could be
managed in a confined setting like prison.

(36 RR 150-51.)

Jones does not specify what more counsel should have done.
The Court is aware that capital-defense counsel sometimes present

12

Dr. Price subsequently agreed with the prosecutor on re-direct examination that, given enough resources, anybody can be managed, but he did not think
the prison had the resources to prevent Jones from “ever” committing another act
of violence. (36 RR 153.)

65

expert testimony about prison classification and security systems
in order to demonstrate that the prison can prevent the defendant
from committing further violence.

The Court is also aware,

however, that such expert testimony can be diminished on rebuttal
by detailed descriptions of all the violence that has occurred in
prison despite the measures in place to prevent it.

E.g., Rayford

v. Thaler, No. 3:06-CR-978-B-BD, 2011 WL 7102282, *10-11 (N.D. Tex.
July 12, 2011) (not designated for publication) (rejecting argument
that statistics on prison violence violated due process); Ramey v.
State, No. AP-75678, 2009 WL 335276, at *14 (Tex. Crim. App. Feb.
11, 2009) (upholding admission of testimony graphically describing
incidents of prison violence); Lucero v. State, 246 S.W.3d 86, 97
(Tex. Crim. App. 2008) (holding that trial court properly allowed
testimony about the violence that can occur within Texas prison
system).

Jones fails to demonstrate any deficiency in counsel’s

chosen strategy, which avoided an exploration of prison violence
before the jury.

The asserted red flag regarding prison’s struc-

tured environment does not allege or show a deficient investigation
under these facts.
Jones next contends his counsel failed to investigate possible
drug-induced brain damage, based on the discrepancy between Jones’s
“low average” intellectual functioning at the time of trial and his
largely “average” IQ scores as a juvenile.

As previously noted,

Dr. Turbeville issued a report about five months before trial

66

began.

Dr. Finn conducted an evaluation about four months before

trial.

Dr. Wadsworth completed her evaluation two days before

opening statements.

There is no indication that any of these

mental-health experts suspected brain damage or recommended neurological testing.

Jones’s present allegation of possible brain

damage, which conflicts with the expert opinions at trial, is
insufficient to allege or prove deficient investigation.

Trial

counsel is not deficient for not canvassing the field to find more
favorable experts on the issue of brain damage.

See Storey v.

Stephens, 606 Fed. App’x 192, 196 (5th Cir. 2015).
B.

Guilt-Phase Red Flags

Jones contends that the trial testimony of Mattie Long raised
red flags (1) identifying twenty-four persons in Jones’s extended
family who had not been interviewed and (2) suggesting that Jones
was raised in a dangerous neighborhood.

The record indicates that

counsel’s investigator contacted Mattie Long before trial, but Long
chose not to speak with her.

(29 RR 57.)

As such, counsel cannot

be faulted for failing to investigate any information known to
Long.

Furthermore, Jones does not name the twenty-four allegedly

overlooked family members.

(Doc. 129, p. 70.)

A petitioner who

complains about an uncalled witness must demonstrate that the witness was available to testify and would have testified, and that
the proposed testimony would have been favorable to the defense.

67

See Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
Jones does not satisfy this burden.
Jones also contends there were red flags that Jones suffered
from an extensive “involuntary” drug problem long before the age of
majority and could have suffered from split personality after being
sexually molested, which caused Jones to inflict significant bodily
injury on himself as “James.”

(Doc. 129, p. 70-71.)

He contends

that, with unspecified “further investigation” of Jones’s psychosocial history, the defense could have challenged the mens-rea
element of the capital-murder charge.
Of course, trial counsel presented expert testimony that Jones
had a form of dissociative personality disorder that began in early
childhood as a result of severe and repeated childhood physical and
sexual abuse that led to an extensive drug problem.
52.)

(35 RR 150-

Through the testimony of Dr. Finn, Freeman, and Keisha, the

jury knew that Jones had shot himself, burned himself, hit his head
on the wall, called himself names, placed a coat hanger around his
neck, and hit himself in the head with an iron, a 40-ounce bottle,
and a full can of laundry starch.
fails

to

explain

what

(35 RR 19-21, 28, 71-73.)

additional

evidence

could

have

Jones
been

overlooked on these matters or theorize how counsel should have
used it to negate the mens rea.

See, e.g. Ruffin v. State, 270

S.W.3d 586, 594 (Tex. Crim. App. 2008) (explaining how mental
disease or defect could be relevant to rebutting mens rea for

68

murder).

The mens rea alleged in this case was an intentional -

killing. (1 CR 3; 3 CR 393.) Bryant’s extensive injuries strongly
support the jury’s finding that the killing was intentional, even
if it was committed while Jones was on drugs or acting as “James.”
Because Jones fails to present a hypothesis under which a jury
could

have

acquitted

him

of

capital

murder

for

lacking

the

necessary mens rea, his red flag does not allege or show a
deficient investigation.
C.
Jones

contends

Punishment-Phase Red Flags
that,

although

trial

counsel

presented

“isolated facts in mitigation” such as remorse and childhood abuse,
trial counsel did not provide a “cohesive story” of Jones’s life to
explain why he was “less morally culpable and not worthy of a death
sentence, than someone who did not share his disadvantaged background and suffer from his various mental impairments.” Jones also
specifically complains there was no effort to explain the role of
James in the killing of Jones’s aunt.

(Doc. 129, p. 72.)

The Court disagrees that trial counsel did not present a
cohesive story of Jones’s life. In closing argument, trial counsel
emphasized the divorce of Jones’s parents, a transient home life,
poverty, and lack of security.

Counsel said Jones went to school

with an embarrassing stutter and, when he came home, he had no one
to talk to about it but was instead sexually abused.

Counsel

stated that Jones’s older brother continued to abuse Jones and

69

Keisha even after they moved.

Counsel pointed out that the family

situation was so bad that Ben ended up in juvenile detention and
Keisha became pregnant at fourteen so she could move out.

At this

point, Jones turned to drugs to make everything “go away,” and he
became addicted.
of

Jones’s

While the prosecution had downplayed the effect

childhood

on

his

criminal

choices,

trial

counsel

challenged the jurors to think about whether they would trade their
childhood for his.

Counsel argued that “James” developed as a

survival mechanism to protect him after Ben was locked up. Counsel
reminded the jury that Jones shot himself three times, called
himself names, and injured himself until people had to restrain
him.

Counsel argued that Jones had never been a vicious person

until Roosa, his supervisor at work, showed him new drugs. Counsel
emphasized that, despite this upbringing, Jones found something
good with Freeman and tried to teach Freeman’s sons about the
mistakes he had made.

Counsel reminded the jury that, while the

mental-health experts disagreed about Jones’s diagnosis, they
agreed that whatever was wrong with him was not a conscious
decision on his part and that even sociopaths do not choose to be
that way.

Counsel asserted that, while Jones is responsible for

what he did, Jones did not chose his path.

Counsel argued that

mental illness, not drugs and a desire for money, caused Jones’s
conduct, because being high and wanting more drugs was a scenario
that had happened a thousand times before in Jones’s life. Counsel

70

asked the jury to remember Keisha and “the rage that’s in that
girl, the pain that’s in her,” because she suffered too and nobody
pulled her and Jones out of it.

Counsel pointed out that the State

could not present one witness to dispute the truth of Jones’s
abusive childhood.

Counsel noted that even Dr. Price believed

Jones had been sexually abused and had mental problems long before
the crimes were committed.

Counsel asked the jury to think about

why Jones “is sitting where he is” before making their verdict.
(36 RR 172-90.)
In light of the foregoing, the Court rejects Jones’s argument
that counsel did not present a cohesive life story.

Counsel made

a comprehensive argument based on the evidence of how Jones came to
be on trial for capital murder, beginning with an unstable and
abusive childhood that led to drug abuse and mental illness.
Jones also contends that trial counsel did not explain the
role of “James” in the killing of Bryant.

Dr. Finn explained,

however, that Jones is mild-mannered and passive while James is
angry, suspicious, and prone to violence.

(35 RR 153-54.)

Dr.

Finn testified that James was activated for some reason, partly
because Jones was on drugs, and Jones was either not aware of the
killing or was helpless to stop it.

(35 RR 156-57.)

Dr. Finn

believed this was true because Bryant was the one person in Jones’s
life who showed him kindness and concern, and Jones loved Bryant as
much as he probably loved anybody.

71

Also, counsel presented

evidence that Jones was very remorseful and apologetic every time
he discussed the murder and had gaps in his recollection of it.
(35 RR 158-59, 185-87; 36 RR 148-49.)

To the extent Jones now

complains that Dr. Finn did not more specifically state what
triggered the appearance of “James,” such evidence would not have
furthered the chosen defense.

As discussed during trial, amnesia

is part of dissociative mental illness, and Dr. Finn believed
James’s personality was the murderer because Jones did not remember
parts of it.

A detailed explanation of what triggered James to

appear could have conflicted with this defense by suggesting that
Jones did not, in fact, have amnesia.
counsel’s

overall

strategy

Jones fails to show that

incorporating

evidence

of

Jones’s

childhood and mental illness was professionally unreasonable.
There are countless ways to provide effective assistance.
Jones simply alleges in the abstract that counsel could have done
more or takes issue with counsel’s strategic choices.

His “red

flags” provide nothing more than what is already in the trial
record. He has not overcome the “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689; see Pape v. Thaler, 645
F.3d 281, 291 (5th Cir. 2011) (recognizing that conscious and
informed decision on trial tactics and strategy cannot be the basis
of constitutionally ineffective assistance of counsel unless it is
so ill chosen that it permeates the entire trial with obvious

72

unfairness); Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999)
(holding that arguments about whether counsel investigated enough
or presented enough mitigating evidence come down to a matter of
degrees and are even less susceptible to judicial second-guessing).

D. Prejudice
Jones must also demonstrate that there is a reasonable probability that he was prejudiced by counsel’s alleged deficiencies.
See Strickland, 466 U.S. at 694.

A “reasonable probability” of

prejudice requires a substantial, not just a conceivable, likelihood of a different outcome.

Pinholster, 131 S. Ct. at 1403.

For

claims that challenge counsel’s sentencing investigation, the
reviewing court reweighs the evidence in aggravation against the
totality of available mitigating evidence and determines whether
there is a probability--a probability sufficient to undermine
confidence in the outcome--that the jury would have assessed a life
sentence. See Wiggins, 539 U.S. at 534.
Jones first contends that a reasonable investigation would
have revealed additional adverse childhood experiences, including
his sister’s mental illness, alcohol abuse on his father’s side,
and a drug and gambling addiction of the mother, that would have
shown that his own drug addiction was not a volitional choice.
(Doc. 129, p. 73-74.)

The Court does not agree that the lack of

additional testimony of this sort undermines confidence in the

73

verdict.

The jury received a substantial amount of information

about Jones’s childhood.

They heard about Jones’s abandonment by

his

his

biological

father,

mother’s

addiction

to

crack

and

gambling, his mother’s shooting at him with a gun, the children’s
being locked in the house when their mother went out, Keisha’s drug
use and early pregnancies, gang involvement by Jones and his twin
Ben, Ben’s juvenile detention, Jones’s being raised by an aunt and
grandparents, the separation of the siblings, Jones’s stuttering,
his learning disabilities, his attempted suicide and two other
self-inflicted gunshot wounds, his frequent changes in residences
and schools, his school expulsion, and sexual abuse. (35 RR 51-54,
69, 77, 84, 88-90, 107-110, 150-51, 188, 197, 208, 212, 217-21.)
The jury knew Jones began using drugs at the early age of thirteen,
used $50 to $300 worth of drugs a day, and attended drug rehabilitation in 1998 and 1999 without success.

(34 RR 208-09; 35 RR 5-

6, 70, 78-79). The evidence showed he used heroin, cocaine, crack,
and marijuana and that his gang associates did not want him around
because of the heroin use.

(35 RR 10, 197-98.)

The jury received

testimony that Jones had another personality who hurt Jones and
called him names, and it received records related to a psychiatric
hospital admission in 1996 for shooting himself in the chest and
for depression.

(35 RR 19-25, 71-74, 106, 153-55; DX 15.)

The jury heard evidence elicited by both sides connecting
Jones’s drug addiction to his abusive childhood and mental illness.

74

(35 RR 150-52.)

The theory that Jones was shaped by his adverse

childhood was not seriously disputed by the State.13

The State’s

expert in fact agreed that childhood sexual abuse occurred, that
parental

neglect

and

childhood

abuse

negatively

affect

one’s

behavior and judgment, and that a mental disorder such as Jones’s
increases the probability of substance abuse.
33, 135-38.)

(36 RR 111-12, 132-

Keisha testified that she and her mother also used

crack, which reasonably suggested a biological or family component
to Jones’s addiction.

(35 RR 52-53, 77, 84.)

Dr. Finn testified

on cross-examination about Jones’s drug dependency, that is, having
to take drugs to avoid withdrawal, rather than simply to get high.
(35 RR 196.)
Jones’s lack of volitional choice caused by a dysfunctional
childhood that led to mental illness and addiction was the major
theme for the defense.

(36 RR 173-76, 181.)

Counsel summarized

that it would have been better for Jones if he “had been raised by
wolves . . . because at least wolves are social animals.”
177.)

(36 RR

The prosecutor argued simply that it was not an excuse and

that, at some point, we know the difference between right and wrong
and “regardless of our upbringing or the lack thereof, we make a
choice.”

(36 RR 170-71, 195-96.)

Given the evidence and theories

argued by both sides, Jones’s assertion that the trial outcome

13

During cross-examination of Keisha, the prosecutor mitigated some of the
negative testimony about their mother and aunts and the sexual activity between
Keisha and Jones. (35 RR 85-88, 103-04.)

75

would have been changed by even more evidence of his dysfunctional
upbringing is unrealistic.
Jones next asserts that further investigation would have shown
that Jones has brain damage from prolonged alcohol and drug abuse.
Except for one low-average IQ score of 79, achieved during his
preparation for trial, Jones provides no support for the contention
that he has brain damage.

Certainly, a defendant awaiting trial

for capital murder may achieve lower IQ scores for any number of
reasons besides brain damage.

Even assuming that Jones could now

present the opinion of an expert who believes that he has brain
damage, it would merely contradict the State’s expert.

Dueling

expert opinions do not establish a “substantial likelihood” of a
different

trial

outcome,

as

required

for

prejudice

under

Strickland.
Moreover, assuming Jones’s has brain damage from his prolonged
alcohol and drug abuse, the Court does not view low-average
intelligence as a significantly mitigating circumstance.

Cf.

Tennard v. Dretke, 542 U.S. 274, 287 (2004) (holding that IQ of 67
is inherently mitigating); Atkins v. Virginia, 536 U.S. 304, 318-19
(2002) (explaining why mental retardation diminishes personal
culpability). There is no suggestion in this record that Jones has
subaverage intelligence or is intellectually disabled.

On the

contrary, Dr. Finn testified unequivocally that Jones is not
mentally challenged.

(35 RR 172.)

76

Dr. Turbeville stated he

appeared to be of low-average intelligence. (2 CR 212.) Dr. Price
estimated his IQ to be average, based on the scores in his school
records.

(36 RR 39.)

In addition, a defensive theory that

emphasized low intelligence and brain damage would have conflicted
with, and is no better than, the chosen defensive strategy that
Jones had a dissociative disorder.

Dr. Finn testified that the

higher his actual IQ, the more Jones would fit the profile of a
person with dissociative disorder.

(35 RR 172-73, 209.)

For all

these reasons, Jones’s assertion that counsel overlooked brain
damaged based on a pre-trial IQ score of 79 does not undermine
confidence in the jury’s verdict, as required for Strickland
prejudice.
Jones also contends that further investigation would have
provided evidence that Jones would not be a future danger in a
structured prison environment.

Counsel enacted a reasonable stra-

tegy on this issue by presenting testimony, including testimony
from two State’s witnesses, that Jones could be managed in prison
and previously did well in the structured, probation environment.
(35 RR 167, 234, 245; 36 RR 124, 150-51.)

Jones fails to show what

more counsel could have done and therefore fails to demonstrate
that counsel’s chosen strategy on this issue undermines confidence
in the verdict.
Jones alleges that further investigation into Keisha’s mental
illness would have “cast further light” on the Jones family’s

77

history of mental illness, neutralizing Dr. Price’s testimony that
Jones was merely a psychopath and a drug addict.

The record indi-

cates that Keisha was admitted to Charter Hospital for suicidal
tendencies and to get away from her older brother’s sexual abuse.
(Doc. 129-13, p. 3); (35 RR 56.) Jones presents no factual support
for his suggestion that another family member was diagnosed with
dissociative disorder.

He presents no factual support that disso-

ciative order is genetic.
Assuming there is a genetic component to his dissociative
disorder, however, Jones fails to demonstrate that it would have
been any more effective with the jury than the theory counsel
presented--that his disorder was caused by severe and repeated
childhood abuse.

This is in part because trial counsel’s cross-

examination of Dr. Price met or exceeded reasonable professional
standards.

Co-counsel Moore conferred with Dr. Price before he

testified, received material from Dr. Price, and apparently spoke
with Dr. Finn to help prepare for Dr. Price’s cross-examination.
(Doc. 129-8, p. 15.)

Under Moore’s cross-examination, Dr. Price

agreed that Jones was forthright and truthful during the interview,
that Jones was in fact sexually abused as a child, that Jones had
episodes of self-mutilation, and that “James” manifested prior to
the offense for which Jones was on trial.

(36 RR 107-08, 111-14.)

Dr. Price admitted under Mr. Moore’s cross-examination that scoring
for the psychopathy checklist is in good part subjective.

78

Price

agreed that, with any mental disorder or psychopathy, there is an
increased probability of substance abuse because the person is
trying to medicate himself.

(36 RR 116, 119-20, 134.)

Dr. Price

testified about the effects of Jones’s history of parental neglect
and child abuse.

He agreed it could lead to behavior problems and

affect a person’s judgment of what is right and wrong.

When asked

what causes psychopathy, Dr. Price testified that the current
thinking is that “a person has a [biological] tendency and then
lack of early attachments to others, lack of early . . . bonding
experiences with others has been investigated and found to be more
common in the childhoods of psychopaths.”

He clarified, “this is

not something that, you know, at the age of 12 that some kid
decides they want to grow up and be.
to it.”

(36 RR 135-38.)

It’s – their life leads them

Dr. Price agreed that Jones shot himself

in the chest in a serious suicide attempt and not just because
Jones was abusing drugs.

(36 RR 142.)

Dr. Price agreed there was

evidence of Jones’s remorse. Counsel also established that, unlike
Dr. Finn, Dr. Price did not speak to Jones’s family members and did
not know that Jones had apologized in a phone call and letter to
Mattie Long.
Dr.

Price

(36 RR 143-46.)

read

the

jail

Under counsel’s cross-examination,

interview

notes

to

the

jury,

which

indicated that Jones was tearful and said he is turning into
“James,” that “James” hurts him, and that he did not mean to kill
anybody.

(36 RR 147-49.)

Trial counsel also pointed out that Dr.

79

Price probably misinterpreted a jail infraction in which Jones had
demanded some “rank.”

(36 RR 121.)

Finally, under counsel’s

questioning, Dr. Price admitted Jones could be manageable in
prison.

(36 RR 150-51.)

Counsel’s effective cross-examination allowed counsel to argue
extensively

to

the

jury

that

Jones

was

mentally

ill,

not

a

sociopath but that, whatever was wrong with Jones, the experts
agreed that it was not a conscious decision on his part.
180, 183-89.)

(36 RR

Given the concessions from Dr. Price and the

arguments asserted to the jury, evidence of a family history of
mental illness would add little additional support to the defense,
and its absence does not undermine confidence in the verdict.
Jones next argues that further investigation would have shown
that Jones’s drug use and gang membership was a product of the
dangerous neighborhood in which he grew up.
Jones

fails

to

present

evidence

that

his

(Doc. 129, p. 76.)
drug

use

and

gang

membership is attributable to the character of his neighborhood.
He presents a newspaper article about life in the Riverside area of
Fort Worth in the 1980s, but its relevance is unclear.

Jones

points to evidence that the victim’s neighborhood was dangerous,
but the record indicates that Jones grew up with a grandmother or
the victim’s sister, Mattie Long, not the victim.

And he does not

connect any of these addresses to the “Riverside area.” (35 RR 52,
86-88; SPX 2.)

80

Assuming for the sake of argument that Jones grew up in a bad
neighborhood, counsel’s chosen strategy of explaining Jones’s drug
addiction as a product of his childhood abuse and mental illness is
improved little, if at all, by that fact.

Trial counsel also

employed a reasonable strategy for dealing with the gang evidence.
Freeman and Keisha testified that Jones was no good at being in a
gang because he could not hurt anybody, that his membership was
inactive, and that he joined a gang to get a reputation so he would
not have to fight.

Dr. Finn learned from Ben that Ben quickly

surpassed Jones in terms of gang hierarchy, and Jones left the gang
after a year because his heroin use made the other gang members
avoid him.

Freeman’s son also testified that Jones told him to

never join a gang because one cannot get out.
76, 80, 197-98.)

(34 RR 63; 35 RR 29,

Growing up in a bad neighborhood, assuming it is

true, contributes little to lessening the aggravating impact of
Jones’s drug use and gang violence.

Counsel’s failure to pursue

such a theory does not undermine confidence in the verdict.
Finally, Jones asserts that Dr. Finn did not have the factual
foundation needed for his evaluation and could not “tell the jury
who Petitioner is, why Petitioner was so severely drug addicted, or
explain what propelled Petitioner to commit the offense.”

Jones

states that, if the investigation had been sufficient, Dr. Price
would not have been able to testify that Dr. Finn was mistaken
because he “had not been given all the information that Dr. Price

81

had” been given. Jones contends counsel “did little to assist” both
of

his

experts,

unreliable.

and

their

evaluations

were

incomplete

and

(Doc. 129, p. 77-78.)

Based on his cross-examination, the information Dr. Finn
lacked referred to (1) Keisha’s grand-jury testimony that she had
never seen “James”; (2) information in Jones’s juvenile probation
records that others thought Jones was very likeable and a leader,
and that people followed him eagerly; (3) a jail incident in April
where Jones used abusive language and demanded some “rank”; and (4)
a juvenile conviction for assaulting two teachers.

(36 RR 61; 35

RR 189-90, 193-95, 203). This information was known to counsel and
therefore not overlooked.

(4 RR 11 (Keisha’s grand jury testi-

mony); 33 RR 77-83; 2 CR 217 (assault on teachers), 240 (April jail
incident), 283 (juvenile probation records)).
Moreover, there is no evidence that Dr. Finn’s opinion would
have changed had he possessed the unknown information. At best, he
conceded that Keisha’s grand-jury testimony could under certain
circumstances change his opinion.

(35 RR 189, 193-96, 214-15.)

But both experts in this case were subject to very thorough and
effective cross-examination.

In fact, as discussed earlier, coun-

sel showed that Dr. Price lacked information because he did not
talk to Jones’s family members and did not know about Jones’s
contacts with Mattie Long.

(36 RR 145-46.)

Counsel also showed

that Dr. Price had probably misinterpreted the April jail incident

82

as a demand for respect.

(36 RR 121.)

Overall, Jones does not

support his conclusion that his experts lacked information that
would have changed the outcome at both phases of trial.
Jones

fails

to

demonstrate

that

counsel’s

alleged

defi-

ciencies, either individually or considered in their totality,
demonstrate prejudice sufficient to undermine confidence in the
verdict.

The Court denies claim 2.

V.

Claim 3

In claim 3, Jones alleges counsel was ineffective for failing
to develop condition-of-the-mind evidence that could have negated
the mens-rea element and lessened Jones’s moral culpability at
punishment. He argues that the frenzied and out-of-control character of the killing plus other red flags in the record suggested a
need to further investigate Jones’s mental health.

Counsel’s

selection of expert witnesses is the paradigmatic example of the
type of strategic choice that, when made after a thorough investigation of the law and facts, is virtually unchallengeable.
Hinton, 134 S. Ct. at 1089.

See

The Court will address the alleged red

flags to determine if counsel’s selection of experts amounted to
deficient representation.
A. Alcohol Addiction and “Settled Insanity”
Jones first contends his counsel should have investigated
further into his alcohol addiction, which would have supported a
83

settled-insanity defense. (Doc. 129, p. 81.) The Texas common law
defense of settled insanity was otherwise known as “delirium
tremens.”
1892).14

See Evers v. State, 20 S.W. 744, 748 (Tex. Crim. App.
It did not survive the enactment of the Texas Penal Code.

The CCA has unanimously held that the only affirmative defense
available for those who commit crimes while suffering from an
abnormal mental disease or defect is insanity under Texas Penal
Code section 8.01.

Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim.

App. 2010); see also Sprouse v. Thaler, No. 3:10-CV-00317-P, 2013
WL 1285468, at *9 (N.D. Tex. Mar. 29, 2013), aff'd sub nom. Sprouse
v. Stephens, 748 F.3d 609 (5th Cir. 2014), cert. denied, 135 S. Ct.
477 (2014). Counsel was not ineffective for failing to investigate
a defense that did not exist.

See Koch, 907 F.2d at 527 (counsel

is not required to make futile motions or objections).
Nevertheless, Jones contends that today’s scientific literature refers to settled insanity as frontal-lobe dysfunction, and he
cites a scientific article and an internet website.
fails in several respects.

This argument

Although Jones quotes from these

14

In his Reply, Jones asserts that settled insanity is not a defense but
a “straight up denial” of the mens rea element of the offense. (Doc. 149, p.
60.) He appears to confuse the discussion in Evers about temporary insanity
caused by intoxication (which, at the time, could determine the degree of murder
depending on how it affected mens rea) with the later discussion in Evers of
settled or fixed insanity, which Evers clearly refers to as “a complete defense
to crime” “from the earliest of times.” Evers, 20 S.W. at 748; see also Thomas
v. State, 177 S.W.2d 777, 779 (Tex. Crim. App. 1944) (stating that a settled
insanity produced by long-continued use of ardent spirits is a full defense.)
In any event, the characterization of settled insanity as a defense or as the
denial of mens rea does not affect the outcome of this case since, as discussed
later, there is no factual support for it.

84

sources extensively, he does not provide authority that equates the
former legal defense of settled insanity with the frontal-lobe
damage discussed in the articles. In addition, the articles do not
appear to have been in existence when trial was conducted in
February of 2001.

Thus, counsel could not be ineffective for

failing to investigate their content as the modern-day version of
settled insanity.

See Kulbicki, 2015 WL 5774453, at *2 (holding

that counsel were not ineffective for failing to predict developments in forensic science).
The gist of the proffered sources is that alcohol abuse
damages the frontal lobe and possibly weakens a person’s ability to
inhibit his behavior.

(Doc. 129, p. 83-84.)

Assuming this is

true, the inability to inhibit one’s behavior does not show a lack
of criminal intent; it shows, at best, that a person does not have
the ability to resist acting upon his criminal intent.
evidence is not a defense in Texas.

Such

See generally Ruffin, 270

S.W.3d at 593 (holding that Texas does not recognize defenses that
would permit the exoneration or mitigation of an offense because of
a person’s supposed psychiatric compulsion or an inability to
engage in normal reflection or moral judgment).

Simply put, Jones

offers no viable legal theory under which a jury could conclude
that, at the time he beat the victim to death with a baseball bat,
he did not intend the deadly consequences of that act.

85

Finally, assuming a settled-insanity defense (or the proffered
modern version of it) had been available to Jones, it is caused by
long-continued drunkenness and brought on by the “abstinence of
drink.”

Evers, 20 S.W. at 748 (defining settled insanity as

delirium tremens, "caused by the breaking down of the person’s
system by long-continued or habitual drunkenness, and brought on by
the abstinence of drink”) (emphasis added).

But there is no indi-

cation in the record that Jones was suffering from the effects of
alcohol withdrawal at the time of the murder.

Jones merely points

to testimony that Tiffany Jones did not recall Jones’s drinking
cognac while packaging drugs for sale in the hours before the
murder. (31 RR 69, 84).
For all these reasons, Jones does not show that counsel was
deficient in his investigation or use of evidence regarding Jones’s
alcohol abuse.

Further, Jones fails to demonstrate, based on the

alleged deficiency, that the result of the proceeding would have
been different.
B.

Childhood trauma

Jones alleges that counsel failed to sufficiently investigate
Jones’s childhood abuse and its potential to cause long-term
changes in the brain, as explained in a scientific article from
2006.

As stated previously, counsel cannot be ineffective for

failing to investigate the contents of a scientific article that
did not exist at the time of trial.

86

Jones
evidence

hypothesizes

of

traumatic

that

he

childhood

was

prejudiced

abuse

can

be

because

“such

relevant

and

admissible . . . in the guilt/innocence phase to negate the mens
rea element of capital murder when traumatic childhood events
affect memory, learning, ability to regulate mood, and social
development, and result in frontal lobe pathology.”
84-85.)

(Doc. 129, p.

Jones again fails to explain how, given the facts of this

murder, such characteristics could show a lack of intent to kill,
rather than simply psychiatric compulsion or an inability to engage
in normal reflection or moral judgment. Jones fails to demonstrate
deficient representation or prejudice in counsel’s investigation
and use of childhood trauma evidence.
C.

Polysubstance abuse

Jones alleges that counsel failed to sufficiently investigate
his drug addiction.

He asserts that individuals with histories of

childhood abuse are at greater risk for trying drugs as a means of
reducing the emotional pain and for developing an addiction.

He

further contends that addiction that occurs prior to the age of
majority is admissible to negate the mens rea of capital murder “if
it could be shown that his drug craving on the night of the offense
increased his agitation, exaggerated his response to stimuli,
reduced his threshold for anger, and thereby impaired the ability
of [Jones] to govern his conduct.”

87

(Doc. 129, p. 85-86.)

Jones fails to acknowledge that his counsel did present
evidence of childhood abuse as the cause of Jones’s mental disorder
and drug abuse.

Dr. Finn testified that Jones developed dissocia-

tive disorder in early childhood as a result of “severe and
repeated abuse, both physically and sexually,” which developed even
more in adolescence.

He testified that Jones used drugs to medi-

cate himself and deaden himself emotionally.

(35 RR 150-52.)

To

the extent Jones relies on the scientific theory that childhood
trauma causes physical changes to the brain, the sources Jones
relies upon are the same article referenced previously plus links
to internet articles that are either not available or post-date the
trial.

Counsel cannot be deficient for failing to investigate

information that did not exist at the time of trial.
Jones also fails to assert or demonstrate prejudice because he
provides no authority for his argument that drug addiction before
the age of majority negates the mens rea of capital murder.

As

with the two prior subclaims, his argument that drug cravings
increased his agitation, exaggerated his response to stimuli,
reduced his threshold for anger, and impaired his ability to govern
his conduct would not show that he lacked intent to kill.

Such

characteristics would actually support the State’s theory of the
offense by showing that drug addiction was Jones’s motive for
committing murder.

E.g., Jackson v. State, 160 S.W.3d 568, 572

(Tex. Crim. App. 2005) (holding that paranoia due to schizophrenia

88

does not negate intent to kill but provides motive for murder).
Jones fails to demonstrate a deficient investigation into his drug
addiction and fails to allege or prove prejudice.

D. Dissociative personality and antisocial disorder
In two lightly briefed subsections, Jones appears to contend
that counsel should have further investigated his dissociative
disorder and his life history to refute Dr. Price’s testimony that
Jones was a psychopath.

The complaint appears to be that counsel

overlooked

a

physiological

basis

for

disorder.15

antisocial

personality

(Doc. 129, p. 86-87, 89.)

The experts for the defense and the State both administered
the same psychopathy checklist, but unlike Dr. Price, Dr. Finn did
not diagnose Jones with antisocial personality disorder.
58, 61.)

(36 RR

Offering a physiological explanation for antisocial

personality disorder would therefore have undermined the defense
expert or, at best, confused the jury, since the defense expert did
not make that diagnosis.

Further, Jones appears to rely on a July

2001 article to support the notion that psychopathy is not a choice
but a product of frontal-lobe pathology.

(Doc. 129, p. 89.)

This

article did not exist in February of 2001 when the trial occurred.

15

As do the parties, the Court uses the terms “antisocial personality,”
“psychopathic personality,” “sociopathy,” and “psychopathy” interchangeably, as
referring to a personality disorder characterized by a lack of conscience.

89

Counsel is not deficient for failing to pursue a scientific theory
underlying a diagnosis that his expert did not make, and that was
postulated in an article that did not yet exist.
Further, Jones cannot show prejudice.

To the extent the

State’s expert opined that Jones was a psychopath, trial counsel
elicited a concession from Dr. Price that psychopaths do not “wake
up one day and decide” to be antisocial, but rather are a product
of their life circumstances.

(36 RR 138.)

This concession

accomplished the same end that Jones’s frontal-lobe theory would
have accomplished, namely, that psychopaths do not chose to be that
way.
In any case, Jones provides no evidence that he actually
suffers from a frontal-lobe pathology that might explain his
violent behavior.

And the article he relies upon discusses

methodological flaws in its supporting data, one of which is that
few

studies

adequately

address

concurrent

causes

of

violent

behavior, such as emotional stress, drug and alcohol misuse,
physical and sexual abuse, family breakdown, and poverty. See M.C.
Brower and B.H. Price, Neuropsychiatry of Frontal Lobe Dysfunction
in Violent and Criminal Behavior: A Critical Review, 71 J. NEUROLOGY,
NEUROSURGERY

AND

PSYCHIATRY 720 (July 2001).

Significantly, all of

these other potential causes of violence were present in Jones’s
life, which would greatly diminish the value of the article as an
explanation for his crime.

90

Counsel presented a cohesive theory that Jones’s childhood
trauma and abuse led to dissociative disorder and drug addiction,
which ultimately caused “James” to murder the victim.

Jones’s

childhood abuse and early drug and alcohol addiction were not
seriously refuted by the State or its expert, a fact that counsel
emphasized to the jury.

(36 RR 184.)

So, even assuming that

counsel could have discovered and presented the scientific theory
that childhood abuse and drug and alcohol addiction affect brain
development as Jones suggests, it would add little additional
support to the defense theory that Jones’s behavior was not a
product of volitional choice.

With respect to condition-of-mind

evidence, Jones does not demonstrate deficient performance or
prejudice sufficient to undermine confidence in the outcome.

The

Court denies claim 3.

VI.

Claim 4

In claim 4, Jones argues that counsel’s inadequate life history investigation caused his experts to provide unreliable evaluations on sanity, competency to confess, competency to stand trial,
and mental-health-based mitigation.

(Doc. 129, p. 91-93.)

Jones

reasserts the deficiencies alleged in claim 2 regarding Brownlee’s
time and budget.

Jones then argues that, due to the financial and

time constraints, Dr. Finn and Dr. Wadsworth had an inadequate life
history, and Dr. Finn did not have all the information needed for

91

the Hare Psychopathy checklist and could not explain discrepancies
in Jones’s IQ scores.

(Doc. 129, p. 92-93.)

The Court has already addressed these alleged inadequacies.
While Jones argues that counsel should have spent more time and
money, these things do not demonstrate a deficient investigation.
Counsel can always do “more.”

See Kitchens, 190 F.3d at 703

(holding that arguments about whether counsel investigated enough
or presented enough mitigating evidence come down to a matter of
degrees and are even less susceptible to judicial second-guessing).
The Court has also addressed Jones’s complaint about Dr.
Finn’s cross-examination.

The information that was unknown to Dr.

Finn was known to counsel and would not have changed Dr. Finn’s
diagnosis. Furthermore, the assertion that Dr. Finn was “unable to
explain the discrepancies in the IQ scores” is not shown by the
testimony that Jones cites.

In the exchange with the prosecutor,

Dr. Finn was not asked to explain why Jones’s pretrial IQ score was
lower than his childhood scores. (35 RR 170-71.) The Court denies
claim 4.
VII. FUNDING
In his Reply, Jones argues that the Court’s denial of his
requested funding and a one-year continuance prevented him from
carrying his burden to show “some merit” to his claims against
trial counsel and state habeas counsel.

92

He contends this violates

18 U.S.C. § 3599, McFarland v. Scott, 512 U.S. 849 (1994), and
Martinez/Trevino.

(Doc. 149, p. 43-59.)

The Court vacated its dismissal order and reopened this case
on February 6, 2014.

(Doc. 113.)

The Court ordered Jones to file

an amended petition within ninety days. Jones requested the assistance of co-counsel to meet this deadline on the ground that Ms.
Brandt’s efforts during the preceding six years had been directed
toward the equitable-tolling issue. In response, Michael Mowla was
appointed a week later on February 13, 2014.

(Doc. 114, 115.)

On March 23, Jones filed a motion for continuance, seeking a
new due date that was one year from the date the case was reopened.
The motion again argued that Ms. Brandt’s appointment had been
limited to litigating the issue of equitable tolling.

The motion

implied that Ms. Brandt had never had the opportunity to conduct a
full investigation and records review.

(Doc. 116.)

On April 1,

2014, the Court granted the motion in part, allowing Jones six
weeks, in addition to the original ninety days, to file amended
briefing.

(Doc. 118.)

Court denied.

Jones moved for reconsideration, which the

(Docs. 119, 120.)

Twenty-eight days before the due date, Jones moved for leave
to file a first application for funding to be heard ex parte and
under seal, which the Court denied. (Docs. 121, 122, 123.) Twenty
days before the due date, Jones publicly filed a motion seeking
$30,000 to fund a 400-hour mitigation investigation.

93

(Doc. 124.)

Jones again argued that it was Ms. Brandt’s first opportunity to
seek funding because she had been previously appointed for the sole
purpose of litigating the equitable tolling issue.
5, 7.)

(Doc. 124, p.

One week before the due date, Jones filed a second motion

for continuance, reasserting his request for a full year to file
the amended petition.

(Doc. 126.)

The Court denied the request

for funds because, among other things, Jones failed to demonstrate
that

$30,000

was

reasonably

necessary

exceeding the $7,500 statutory limit.

and

failed

(Doc. 127.)

to

justify

The Court

denied the second motion for continuance because Jones presented no
authority that equitable tolling restored him to the position he
was in at the conclusion of the state habeas proceedings, with
another one-year limitations period.

(Doc. 128.)

Jones contends the above orders violate 18 U.S.C. § 3599,
McFarland, and Martinez/Trevino.

Jones appears to have abandoned

the argument that Ms. Brandt’s appointment was limited to equitable
tolling matters.

(Doc. 149, p. 46.)

Indeed, this argument had

been flatly refuted by the order appointing Ms. Brandt, which
authorized her to pursue “whatever legal avenues” were available to
Jones in federal court.

(Doc. 31.)

It was also refuted by the

fact that, in 2009, Ms. Brandt filed a reply to Respondent's answer
to the original petition, a stay and abeyance to return to state
court and exhaust new claims, a proposed eighty-four page amended
petition, which raised claims of actual innocence, claims related

94

to the absence of mental impairment evidence at guilt, and an
ineffective-assistance claim against trial counsel for failing to
timely investigate, develop, and present in all phases of trial,
crucial

information

about

Jones’s

mental

impairment

and

life

history. (Docs. 55, 53, 57.)
Instead, Jones now contends, for the first time in this Court,
that Ms. Brandt has had the opportunity to conduct only a “due
diligence inquiry” rather than an “investigation” in this case.
(Doc. 149, p. 49.)

This is so, he contends, because (1) he could

not have obtained funding in federal court after the original
petition was dismissed in 2007, (2) circuit precedent prior to
Martinez precluded funding for claims that were unexhausted and
procedurally defaulted, and (3) the Court denied his request for
abeyance, so he could not have obtained funding in state court.
(Doc. 149, p. 50-55.)

Jones makes no showing, however, that he

ever asked for funding in these various stages of the litigation.
Jones filed his first and only funding motion after the Court
granted equitable tolling and reopened the case.
“Opposed First Motion for Funding.”)

(Doc. 124,

In it, Jones claimed that,

based on Ms. Brandt’s “due diligence review,”16 funding was needed
to investigate a Wiggins claim against trial counsel that was

16

According to the motion, counsel’s due-diligence review included
attempted interviews of Paula Freeman and Michael and Brandi Jones. It also
included requests for school records, medical records, incarceration records, and
“numerous other documents,” and attempts to locate Dr. Finn’s files. (Doc. 124,
p. 24-25.)

95

viable under Martinez/Trevino.

Jones asserts that the Court’s

denial of his request for funds effectively required him to prove
his claim before funding it, and therefore conflicts with § 3599
and McFarland, under which the right to counsel (and funding)
attach prior to the formal filing of a federal habeas petition. He
also contends the Court’s ruling conflicts with Martinez/Trevino
because it thwarts the investigation of claims against trial
counsel that may satisfy the exception to procedural bar in
Martinez/Trevino.
First, Martinez does not mandate pre-petition funding.

See

Crutsinger v. Stephens, 576 Fed. App’x 422, 431 (5th Cir. 2014).
Second, Jones makes global arguments about the timing of and need
for adequate funding of habeas petitions with which the Court does
not necessarily disagree.

But Jones sought well in excess of the

statutory maximum amount to fund a 400-hour mitigation investigation, to be conducted in accordance with the 2008 American Bar
Association Supplementary Guidelines for the Mitigation Function of
Defense Teams in Death Penalty Cases.

Even if the ABA Guidelines

controlled ineffective assistance claims, which they do not, the
2008 Guidelines would not apply in this case because the trial was
held in 2001.
motion

simply

Van Hook, 558 U.S. at 8-9.
identified

so-called

Further, Jones’s funding

red

flags

in

the

record

involving matters that were clearly investigated by trial counsel
and presented at trial. Jones did not provide any information that

96

exceeded what was known to counsel and did not demonstrate a
reasonable necessity for the investigation that he requested.

He

simply sought to re-investigate any and all aspects of trial
counsel’s 2001 performance under 2008 guidelines.

He also failed

to demonstrate that funds in excess of the statutory maximum were
“necessary to provide fair compensation for services of an unusual
character or duration.”

See 18 U.S.C. § 3599(g)(2).

Ms. Brandt has represented Jones since 2008.
appointed on February 13, 2014.

Mr. Mowla was

Both counsel had the time between

February 13, 2014, to June 23, 2014, to file the amended petition,
request reasonably necessary funding, or make a reasonable request
for additional time.

Instead, counsel creatively sought to expand

the Court’s equitable-tolling ruling to include an additional oneyear limitations period and requested $30,000 to conduct a fullblown mitigation investigation under standards that do not govern
this case.

The Court remains convinced that it ruled correctly on

the motions for continuance and for funding.

CONCLUSION
Based on the foregoing, the Court DENIES Jones's petition for
a writ of habeas corpus. In accordance with Federal Rule of
Appellate Procedure 22(b) and 28 U.S.C. § 2253(c), the Court DENIES
Jones a certificate of appealability because he has failed to make
a substantial showing of the denial of a constitutional right. See
97

Miller-El v. Cockrell, 537 U.S. 322, 338 (2003); Slack v. McDaniel,
529 U.S. 473, 483-84 (2000); 28 U.S.C. § 2253(c)(2).

If Jones

files a notice of appeal, he may proceed in forma pauperis on
appeal. 18 U.S.C. § 3006A(7).
SIGNED January 13, 2016.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/ks:

98