Jones v. Stephens (157 F. Supp. 3d 623, 2016)

MEMORANDUM OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

TERRY R. MEANS, UNITED STATES DISTRICT JUDGE

Quintín 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 dismissed the application as time-barred but later reversed its decision based upon a change in the law. See Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Having reviewed the parties’ arguments and the complete record, 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 Quintín 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 previously 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 custody, 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 addiction, and severe self-injuring behavior. The jury convicted Jones and sentenced him to death.'(3 CR 408.)

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, 124 S.Ct. 2836, 159 L.Ed.2d 270 (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. (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. (1 SHR Supp. 2.) The CCA denied habeas relief in 2005. Ex parte Jones, No.,299-01, 2005 WL 2220030 (Tex.Crim.App. Sept. 14, 2005).

II. Federal Proceedings

Jack Strickland was appointed as federal habeas counsel. (Doc. 7.) 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. (Doc. 28.) Strickland did not appeal the dismissal. After receiving communication from Jones that he did not wish to abandon the appeal, the Court appointed Lydia Brandt as substitute counsel in 2008. (Doc. 31.) The Court vacated the judgment of dismissal, and Ms. Brandt filed a response to the motion to dismiss. (Docs. 43, 55.) The Court again found the petition time-barred, however. (Doc. 59.)

Jones appealed, and the appellate court remanded the case for consideration in the first instance of the Supreme Court opinion in Holland. Jones v. Thaler, 383 Fed.Appx. 380 (5th Cir.2010). 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 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, 123 S.Ct 2527, 156 L.Ed.2d 471 (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 the first time in this Court. The amended petition is -subject to the standards set out in 28 U.S.C. § 2254 (“AED-PA”), 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. (Doe. 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 judgment. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (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). Claim 1 is procedurally barred. See Coleman, 501 U.S. at 729, 111 S.Ct. 2546.

B. § 2254(d) determination

Respondent 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.

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, 131 S.Ct. 770, 178 L.Ed.2d 624 (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, 563 U.S. 170, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). For purposes' of § 2254(d)(1), “clearly established federal law” is the Supreme Court precedent that existed when the state conviction became final. Williams v. Taylor, 529 U.S. 362, 379-80, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). 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 the relevant precedent and arrives at an different result. Coleman v. Thaler, 716 F.3d 895, 901 (5th Cir.2013) (quoting Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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. Id. at 901-02.

Factual; “determinations” in a state court decision are presumed correct, and a petitioner bears the burden of rebutting them by clear and convincing evidence. § 2254(e)(1); see Burt v. Titlow, — U.S. —, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013). A “state-court factual determination 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, 130 S.Ct. 841, 175 L.Ed.2d 738 (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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 131 S.Ct. 770; White v. Woodall, — U.S. —, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (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, 131 S.Ct. 770.

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. When no one answered, Gates left her business card on the door. (4 RR 43, 69, 75, 115-16; 31 RR 109-11, 197.) 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 outstanding 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. (4 RR 72; 31 RR 123.) Initially, she did not Mirandize Jones. 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. (4 RR 74, 76-81; 31 RR 126-27, 183.) 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.

(SX 82; SPX 11.) 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. He agreed to take a polygraph examination on Monday. Additionally, Jones named Ricky Roosa as the person who had done yard work at Bryant’s house. (4 RR 76, 87, 89, 92; 31 RR 132-33.) This initial interview ended at 10:30 on Saturday evening. (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.) Freeman also gave Gates a photograph of Jones and Roosa. (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:

(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)You have the right to have an examining trial.-

(SPX 27.) 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.) Gates then learned that Jones had failed the polygraph. (4 RR 95.) 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.-.He then dictated- a written statement to- a clerk typist. (4 RR 95-97; 31 RR 138-47; SX 83; SPX 15.) 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 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. (4 RR 100-01, 112; 31 RR 158-59, 186-87.) Jones then asked if they thought he needed a lawyer. 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 pould 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. (4 RR 102-03; 31 RR 160-61.) 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”.) 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. Jones signed it at 5:30 p.m. on Monday, September 13th. (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. 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 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. (4 RR 226-29; 34 RR 137-38.) 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, AMn 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 spontaneously identified places connected to the crime. (4 RR 255, 275.) Eleven days later, on October 5, 1999, Jones signed a form request-ing 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. (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 magistra-tions: 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. 129, p. 47-49; doc. 149, p. 13.) 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, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)); see Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), overruled on other grounds, Montejo v. Louisiana, 556 U.S. 778, 797, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009). The right to counsel does not depend upon a request by the defendant. Brewer, 430 U.S. at 404, 97 S.Ct. 1232; Crawford v. Beto, 383 F.2d 604, 605 (5th Cir.1967). This does not mean, however, that counsel must be appointed for a defendant at the moment his right attaches. Rather, once the right attaches, á defendant must -have counsel present at all “critical” stages of the criminal proceedings. United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Interrogation by the State is such a stage. Massiah v. United States, 377 U.S. 201, 204-05, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). A blood draw, as Jones concedes in his reply, is not. Wade, 388 U.S. at 227-28, 87 S.Ct. 1926; (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, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991); Texas v. Cobb, 532. U.S. 162, 167-68, 121 S.Ct. 1335, 149 L.Ed.2d 321 (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, 121 S.Ct. 1335.

The right to counsel may be waived, so long as the waiver is voluntary, knowing, and intelligent. Patterson v. Illinois, 487 U.S. 285, 292, 292 n. 4, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). Generally speaking, when a defendant 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, 108 S.Ct. 2389. The waiver may be direct or, “in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” See North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Whether there has been a knowing, intelligent, and voluntary 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, 99 S.Ct. 1755 (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Waiver may not be presumed, but “once it is determined that a suspect’s decision not to rely on his rights was un-coerced, 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, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (addressing Miranda waiver).

Jones’s Sixth Amendment right to counsel attached in this capital murder case when he made his initial appearance on September 13th. 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 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, 129 S.Ct. 2079 (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, 106 S.Ct. 477, 88 L.Ed.2d 481 (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 defacto arrested for the Bryant murder on the 11th, and his right to counsel was first triggered by his initial appearance before the 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 unequi-vocably 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. (4 RR 75, 115; 31 RR 110, 121, 125-26, 197-98.) But, assuming his arrest on traffic warrants was a pretext to place him in custody for questioning about the murder, Moulton does not provide authority for a defacto-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. (Doc. 149, p. 14-19). The holding in Moulton is not so broad. In Moulton, the police used a co-indictee to elicit incriminating 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 eo-indict-ee, 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 enforcement personnel in the form of fabricated investigations and risks the evisceration of the Sixth Amendment right recognized in Massi-ah. 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, 106 S.Ct. 477 (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 AMn violate ed the Sixth Amendment by questioning him without counsel about a different, uncharged double murder. These facts were not present in Moulton, as the statements admitted at Moulton’s trial were “principally those involving direct discussion of the thefts fpr 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 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, 136 Ill.Dec. 18 (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 Supreme Court decisions. White v. Woodall, — U.S. —, 134 S.Ct. 1697, 1701, 188 L.Ed.2d 698 (2014). 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 103,131 S.Ct. 770.

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, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). This stringent standard compels habeas relief only if the constitutional error resulted in “actual prejudice.” See Brecht, 507 U.S. at 637, 113 S.Ct. 1710. If the error did not influence the jury, or had but very slight effect, the conviction should stand. See O’Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (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, 115 S.Ct. 992.

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, 83 S.Ct. 1050, 10 L.Ed.2d 193 (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, 83 S.Ct. 1050 (citing Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961)). The alleged error in this case is the admission of an uncounseled confession during the presentation of the case to the jury. This would be constitutional trial error which “is amenable to harmless-error analysis because it may be quantitatively assessed in the context of other evidence presented.” Brecht, 507 U.S. at 629, 113 S.Ct. 1710 (ellipsis and internal quotes omitted). 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 other, overwhelming evidence at the guilt and punishment phases rendered any error harmless.

Overwhelming evidence of guilt can render constitutional trial error harmless. E.g. Burgess v. Dretke, 350 F.3d 461, 472 (5th Cir.2003). 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. (30 RR 192-93.) And; while in jail and represented 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 did not prejudice Jones. 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 Lumi-nol, 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 testified 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 acknowledged 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. (35 RR 93-101). In addition to the testimony of Freeman, Freeman’s son, and 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-OS; 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, 115 S.Ct. 992. He fails to demonstrate 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 la

In a related, unnumbered claim (“claim la”), 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 sub-claim is not limitations-barred because it relates back to claim one. 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 habe-as relief unless it appears that the applicant has exhausted the remedies available in the courts of the state. See § 2254(b)(1)(A); Richter, 562 U.S. at 103, 131 S.Ct. 770. 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, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Williams v. Thaler, 602 F.3d 291, 305 (5th Cir.2010). 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, — U.S. —, 133 S.Ct. 1911, 1918, 185 L.Ed.2d 1044 (2013); Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309, 1320, 182 L.Ed.2d 272 (2012). A claim is “substantial” if it has “some merit.” Martinez, 132 S.Ct. at 1318.

The Court need not address the argu-mentslodged 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. The Court has already addressed Jones’s Sixth Amendment 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 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 la 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, 87 S.Ct. 824, 17 L.Ed.2d 705 (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 earlier, unwarned (but voluntary) oral confession. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). 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. With this background, the CCA concluded: (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 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 four-justice holding in Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (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 properly 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, 87 S.Ct. 824. The State bears the burden of proving that an error passes muster under this standard. Id., Brecht, 507 U.S. at 630, 113 S.Ct. 1710. The parties agree that the Court reviews the state court’s Chapman analysis for reasonableness under the deferential standard of review in § 2254(d). (Doc. 129, p. 104; doc. 146, p. 81.) 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.2004) (citing Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.2001)).

For two reasons, the Court initially disagrees that the four-justice holding in Ful-minante 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, 105 S.Ct. 1285. 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 inadmissible, 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, 120 S.Ct. 2326, 147 L.Ed.2d 405 (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.)

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, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) and its application of Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). Marks holds, according to Panetti, that when there is no majority decision, the narrower holding controls; Panetti, 551 U.S. at 949, 127 S.Ct. 2842 (citing Marks, 430 U.S. at 193, 97 S.Ct. 990). 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, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

The Court next addresses Jones’s argument that the CCA under-estimated 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-cross-examination between his counsel and Ranger Akin, in which Akin concedes he did not give Jones Miranda warnings prior to questioning. (Doc. 129, p. 114); (34 RR 148). 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. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). The state-court ruling is not unreasonable for crediting 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” 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, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (citing Elstad, 470 U.S. at 307, 105 S.Ct. 1285). 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.

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) that the attorney-client relationship was mutually undesired. See Martel v. Clair, — U.S. —, 132 S.Ct. 1276, 182 L.Ed.2d 135 (2012). Jones argues that limiting his claims to those raised in the original petition would violate Christeson v. Roper, — U.S. —, 135 S.Ct. 891, 190 L.Ed.2d 763 (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 merit-less. (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 prejudice 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 la, the Court may look past any limitations bar, as well as any procedural default, 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 that the procedural-bar exception in Martinez/Trevino is unavailable because the claims are not “substantial.” See Martinez, 132 S.Ct. at 1318.

II. Facts relating to claims 2, 3 and 4

Jones was taken into custody on September 11, 1999. Rex Barnett was appointed as lead counsel on October 5. (1 CR 15.) A month later, an investigator, E.D. Lo-ven, was appointed with an initial budget of $1,000. (1 CR 20.) Co-counsel Larry Moore was appointed on March 1, 2000. (1 CR 23.) In June of 2000, trial was set for February 12, 2001. (1 CR 28.) 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.) 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, self-injuries, psychiatric hospitalization, fighting and truancy, drop-ping 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 aunt, and that they had never had a good relationship wi