Ortiz v. Quarterman

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

____________ FILED
October 10, 2007
No. 06-70020
____________ Charles R. Fulbruge III
Clerk

RICARDO ORTIZ,

Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
For the Western District of Texas

Before SMITH, GARZA, and PRADO, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Texas death row inmate Ricardo Ortiz (“Ortiz”) appeals the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition in which he claimed that the Texas retaliation statute was an

unconstitutional ex post facto law when applied to him. He also moves for a certificate of

appealability (“COA”) to appeal two additional issues, arguing that reasonable jurists would find

debatable whether the trial court improperly excluded a veniremember from jury service because of
her views regarding the death penalty and whether the trial court improperly instructed the jury on

the requisite burden of proof for imposition of the death penalty.

I

On August 6, 1997, Ortiz was arrested in El Paso, Texas, for violating the terms of his parole.

He told arresting officers that, in exchange for his release from custody, he would give them

information about a series of unsolved bank robberies. The officers contacted the F.B.I., who had

been investigating the bank robberies and already had suspected Gerardo Garcia (“Garcia”) to be the

main bank robber. The F.B.I. did not yet know the identity of the get-away driver, but after hearing

that Ortiz had special information about the robberies, they suspected Ortiz might be the man for

whom they were looking. By the time the F.B.I. arranged to speak with him, however, Ortiz had

changed his mind and refused to talk. In light of Ortiz’s refusal, the F.B.I. scheduled an interview

with Garcia, who was already in the custody of El Paso police, hoping that Garcia would name Ortiz

as the get-away driver.

When Garcia, too, refused to talk, the F.B.I. concocted a plan that it hoped would convince

Ortiz to implicate Garcia, and vice versa, in the bank robberies. Agents scheduled a second interview

with Garcia and arranged for Ortiz to be brought past the interrogation room so that the two men

could see each other and make eye contact. The F.B.I. hoped that each would assume his accomplice

was cooperating with investigators and would do the same. When neither suspect was forthcoming

with incriminating information, however, agents drafted a federal arrest warrant for Garcia on bank

robbery charges and attached a probable cause statement that falsely mentioned Ortiz as one of the

individuals implicating him. The F.B.I. showed Ortiz the probable cause statement and warned Ortiz

that Garcia would be shown the warrant and would learn that Ortiz had “snitched him off,” implying

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that Garcia might then retaliate by implicating Ortiz.

When neither suspect would talk about the robberies, Ortiz and Garcia were placed in the

same tank in the El Paso Detention Center. This unit was reserved for members of the Texas

Syndicate, an aggressive and violent gang notorious for its rigid hierarchy and ruthless intolerance

of disloyalty. Ortiz was a high-ranking officer of the Texas Syndicate and “tank boss” of this unit.

On August 19, 1997, Garcia was found dead in the bed of his jail cell. An autopsy revealed

that Garcia died of a heroin overdose, one so high that it was three times greater than the amount

sufficient to cause death. There were fresh needle marks and bruises on his left arm, but no needle

track marks, indicating that Garcia probably was not a heroin addict. Prison witnesses revealed that

Ortiz had obtained heroin the evening before Garcia was found dead and, that night, had injected

Garcia with the syringe. Ortiz’s cellmate revealed that Ortiz had told him that Garcia “must die” for

implicating him in the bank robberies that he and Garcia had committed together.

Ortiz was indicted by a Texas grand jury with “intentionally caus[ing] the death of an

individual, namely, Gerardo Garcia, by injecting Gerardo Garcia with heroin . . . then and there in the

course of committing and attempting to commit the offense of retaliation against Gerardo Garcia.”

The retaliation component elevated Garcia’s murder to a capital offense. See TEX. PENAL CODE §

19.03(a)(2) (Vernon 1997).1

On June 16, 1999, the jury found Ortiz guilty of capital murder. During the punishment

phase, Ortiz did not present any mitigating evidence. Ortiz was sentenced to death, and his

conviction and sentence were affirmed on direct appeal. Ortiz v. State, 93 S.W.3d 79 (Tex. Crim.

1
Texas Penal Code § 19.03(a)(2) defined capital murder as murder and “intentionally
commit[ting] the murder in the course of committing or attempting to commit kidnapping, burglary,
robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat . . . .”

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App. 2002), cert. denied, 538 U.S. 998 (2003).

Ortiz timely filed a state petition for a writ of habeas corpus. Deciding that a hearing was

unnecessary, the state habeas court entered findings of fact and conclusions of law recommending that

all relief be denied. The Texas Court of Criminal Appeals (“TCCA”) denied relief in an unpublished

order based on those findings and conclusions and its own review of the record. Ex parte Ortiz, No.

54,488-01 (Tex. Crim. App. 2003) (per curiam) (unpublished order). Ortiz filed a federal habeas

petition asserting seven claims for relief, including the three presented in the instant appeal and

application for COA. The district court denied Ortiz’s claims but granted a COA for us to decide

whether the Texas retaliation statute is an unconstitutional ex post facto law as applied to Ortiz.

Ortiz v. Livingston, 420 F. Supp. 2d 670, 673 (W.D.Tex. 2006). Ortiz now appeals that decision and

also petitions this Court for a COA to appeal two additional issues.

II

We first address Ortiz’s ex post facto claim. We review the district court’s findings of fact

for clear error and review its conclusions of law de novo, applying the same standard of review to the

state court’s decision as the district court. Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998).

We review questions of constitutional law, including the constitutionality of a State statute, de novo.

United States v. Guidry, 456 F.3d 493, 506 (5th Cir. 2006). Under AEDPA, Ortiz is not entitled to

federal habeas relief unless the state court’s adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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28 U.S.C. § 2254(d).

Whether Texas’s retaliation statute violates the Ex Post Facto Clause, U.S. CONST. art. I, §10

(“No State shall ... pass any ... ex post facto Law ...”), when applied to Ortiz is a question of law and,

accordingly, is governed by section 2254(d)(1). See Martin v. Cain, 246 F.3d 471, 475 (5th Cir.

2001). A decision is “contrary to” clearly established federal law “if the state court arrives at a

conclusion opposite to that reached by th[e Supreme] Court on a question of law or if the state court

decides a case differently than th[e Supreme] Court has on a set of materially indistinguishable facts.”

(Terry) Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision involves an “unreasonable

application of” clearly established federal law “if the state court identifies the correct governing legal

principle from th[e] Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case.” Id. at 413.

Ortiz’s ex post facto claim concerns the change in the crime of “retaliation” between the time

of Garcia’s murder and the time Ortiz was tried. On the day of Garcia’s murder, August 19, 1997,

Texas defined the crime of “retaliation” as “intentionally or knowingly harm[ing] or threaten[ing] to

harm another by an unlawful act: in retaliation for or on account of the service of another as a public

servant, witness, prospective witness, informant, or a person who has reported or who the actor

knows intends to report the occurrence of a crime.” TEX. PENAL CODE § 36.06(a)(1) (effective Sept.

1, 1994 through Sept. 1, 1997) (emphasis added). Texas amended its retaliation statute to take effect

on September 1, 1997, only a few days after Garcia’s alleged murder. In contrast to the pre-

amendment statute which specified only “service,” the amended statute criminalizes harming or

threatening to harm another for his “service or status” as one of those named persons. Id. §

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36.06(a)(1) (effective Sept. 1, 1997) (emphasis added).2 The indictment did not include a particular

version of the retaliation statute; the document simply charged Ortiz with murder in the course of

retaliation. The trial judge, though, instructed the jury with the amended definition of retaliation

rather than the definition in effect at the time of the offense.3

Although he did not object to the charge during trial, Ortiz challenged the jury instruction on

direct appeal, arguing that jury instructions that included the amended version of the statute violated

the Ex Post Facto Clause. The TCCA rejected Ortiz’s claim on two grounds. First, the TCCA

concluded that the Ex Post Facto Clause “is directed at the Legislature, not the courts,” and, as a

result, “an ex post facto problem does not arise from a trial court’s erroneous retroactive application

of a statute, but only if the statute itself has retroactive effect.” Ortiz, 93 S.W.3d at 91 (citing Rogers

v. Tennessee, 532 U.S. 451, 457-62 (2001); Johnson v. United States, 529 U.S. 694, 701-02 (2000)).

Therefore, the court held that “in order to prevail on his ex post facto claim, Ortiz would have to

2
The amended statute in full reads: “intentionally or knowingly harm[ing] or threaten[ing]
to harm another by an unlawful act: (1) in retaliation for or on account of the service or status of
another as a (A) public servant, witness, prospective witness, or informant; or (B) person who has
reported or who the actor knows intends to report the occurrence of a crime . . . .” TEX. PENAL
CODE § 36.06(a)(1) (effective Sept. 1, 1997) (emphasis added).
3
At trial, the jury was instructed:

As to the law of capital murder and murder, our law provides that a person commits
murder when he intentionally or knowingly causes the death of an individual. A
person commits capital murder when such person intentionally commits the murder
the course of committing or attempting to commit the offense of retaliation.

As to the law of retaliation, our law provides that a person commits an offense if he
intentionally or knowingly threatens to harm another by an unlawful act in retaliation
for, or on account of, the service or status of another, A, as a prospective witness; or
B, a person who has reported or who the actor knows intends to report the
occurrence of a crime. (emphasis added).

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show that § 36.06 itself operates retroactively, rather than [merely showing] that the trial court

retroactively applied it. He does not do so.” Id. Second, the TCCA held that, although the jury

instruction did not violate the Ex Post Facto Clause, “the trial court’s charge to the jury was

erroneous because it relied on the wrong version of the statute.” Id. However, because Ortiz failed

to object to the jury instruction, the TCCA reviewed the trial court’s error for only “egregious harm,”

id. at 91-92, and held that Ortiz was not sufficiently harmed to warrant reversal of his conviction.

The TCCA explained:

The evidence supports a conclusion that Ortiz murdered Garcia due to either his
status or his service as a prospective witness . . . . With the other options in the
statute—public servant, witness, and informant—there is a clear difference between
that person’s status versus his service. But with a “prospective witness,” the line is
blurred, since the word “prospective” denotes a future event. There is little difference
between a prospective witness’ status and his service. As a result, we cannot
conclude that Ortiz was egregiously harmed by the erroneous charge.

Id. at 92.

On one occasion, in a case cited by neither party, the Supreme Court was presented with a

question of whether jury instructions violated the Ex Post Facto Clause.4 See Splawn v. California,

431 U.S. 595 (1977). The defendant-petitioner in Splawn was convicted under California law of

selling obscene materials. Id. at 596. Pursuant to a statute that the California legislature enacted after

the petitioner’s unlawful conduct but before trial, the trial judge instructed the jury to consider “the

circumstances of sale and distribution, and particularly whether such circumstances indicate that the

matter was being commercially exploited by the defendants for the sake of its prurient appeal.” Id.

at 597. Accordingly, the Supreme Court observed that the newly-enacted statute did “not create any

4
We note that challenges to the accuracy of jury instructions generally are raised as due
process violations. See e.g., Middleton v. McNeil, 541 U.S. 433, 437 (2004). We do not address
due process, however, because the parties have not raised it.

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new substantive offense, but merely declare[d] what type of evidence may be received and

considered.” Id. at 600. Thus, the petitioner’s challenge was limited to whether “a change in

procedural rules governing his trial amount[ed] to the enactment of an ex post facto law.” Id.

Relying on a decision of the California Court of Appeal, the Supreme Court found that such evidence

had been admissible prior to the enactment of the statute and thus found “it unnecessary to determine

whether if [the statute] had permitted the introduction of evidence which would have been previously

excluded under California law, the petitioner would have had a tenable claim under the Ex Post Facto

Clause of the United States Constitution.” Id. at 600-01. In the absence of a Supreme Court decision

determining whether jury instructions violated the Ex Post Facto Clause, we cannot hold that the

TCCA’s rejection of Ortiz’s ex post facto claim was contrary to or an unreasonable application of

clearly established Supreme Court precedent.5

Even if we were to entertain Ortiz’s ex post facto challenge, we still would conclude that he

is not entitled to habeas relief. Under the Ex Post Facto Clause, Ortiz must prove that the law,

5
We reach no conclusion as to whether the TCCA erred in holding that “an ex post facto
problem does not arise from a trial court’s erroneous retroactive application of a statute, but [rather]
only if the statute itself has retroactive effect.” We note, however, that the Supreme Court has
entertained Ex Post Facto Clause challenges premised on a trial court’s retroactive application of a
statute to acts completed before the statute’s effective date. See Weaver v. Graham, 450 U.S. 24,
31 (1981) (“[I]t is the effect, not the form, of the law that determines whether it is ex post facto,” and
a statute may violate the Ex Post Facto Clause when applied to a defendant, even if “on its face, it
applies only after its effective date.”); Carmell v. Texas, 529 U.S. 513, 530-33 (2000) (concluding
that the trial judge’s application of an amendment to a statute, which authorized conviction of certain
sexual offenses on the victim’s testimony alone, to offenses committed before the statute’s effective
date was unconstitutional in violation of the Ex Post Facto Clause); Collins v. Youngblood, 497 U.S.
37, 39 (1990) (entertaining an ex post facto challenge when the court denied the defendant’s habeas
petition based on a Texas statute passed after the respondent’s crime); Miller v. Florida, 482 U.S.
423, 435-36 (1987) (holding that the trial court’s ruling that revised sentencing guidelines applied to
the petitioner, whose crimes occurred before their effective date, violated the Ex Post Facto Clause).
None of these challenges, however, concerned jury instructions.

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retroactively applied to him, caused him some disadvantage. See Weaver v. Graham, 450 U.S. 24,

29 (1981) (“[F]or a criminal or penal law to be ex post facto[,] it must be retrospective, that is, it

must apply to events occurring before its enactment, and it must disadvantage the offender affected

by it.”). Ortiz cannot make this showing. As far as Ortiz is concerned, the law as explained in the

jury instructions was no different from the law that existed at the time of Garcia’s murder because

the amendment had no effect on Ortiz. See, e.g., Dobbert v. Florida, 432 U.S. 282, 300 (1977)

(explaining that the change in law must have also had a specific “effect on the defendant in the

proceedings of which he complains”).

The pre-amendment version of the statute criminalized harming another on account of his

service as a public servant, witness, prospective witness, informant, or a person who has reported or

who the actor knows intends to report the occurrence of a crime. The amended statute criminalizes

harming another on account of his service or status as one of these named persons. Ortiz was

charged only with retaliating against “a prospective witness” or a “person who has reported or who

the actor knows intends to report the occurrence of a crime.” He was not charged with committing

retaliation against those other named persons—“public servant,” “witness,” or “informant.”

Ortiz argues that rendering “service” requires a prospective witness to take steps toward

testifying and that Garcia never performed any “service” because he never provided information to

the authorities. Any distinction, however, does not turn on the definitions of “status” and “service,”

but rather on the definition of “prospective witness.” As the TCCA explained:

With the other options in the statute—public servant, witness, and informant—there
is a clear difference between that person’s status versus his service. But with a
“prospective witness,” the line is blurred, since the word “prospective” denotes a
future event.

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Ortiz, 93 S.W.3d at 92. At the time of Garcia’s murder, Texas law clearly did not require a person

to take steps toward testifying to be considered a “prospective witness;” one “serve[d]” as a

prospective witness by acquiring knowledge of the criminal activity. Morrow v. State, 862 S.W.2d

612, 614-15 & n.3 (Tex. Crim. App. 1993) (holding that prospective witnesses include “every

conceivable category of persons with information regarding criminal activity”). Thus, a person with

the “status” of a prospective witness already “serves” as a prospective witnesses by acquiring

knowledge of criminal activity. Id. At the time of his murder, Garcia allegedly possessed knowledge

of Ortiz’s criminal activity, and law enforcement had placed him in a position to acquire further

knowledge of such criminal activity. Therefore, as the district court concluded, “[t]he amended

version of the retaliation statute did not criminalize previously innocent conduct, because murdering

Garcia in retaliation for his perceived or expected cooperation with authorities would have been an

offense under either version of the statute.” Ortiz, 420 F. Supp. 2d at 726.

In sum, the Supreme Court has never held jury instructions to be unconstitutional under the

Ex Post Facto Clause. Even if there were such a decision, Ortiz’s ex post facto claim cannot prevail

because the amended version of Texas’s retaliation statute did not change the definition of retaliation

as applied to Ortiz. Accordingly, it was not unreasonable for the TCCA to deny Ortiz’s claim.

III

We next address Ortiz’s petition for a COA. We grant a COA only when the petitioner has

made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This

standard requires Ortiz to demonstrate that “jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude that the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

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(2003). In considering a COA, we do not give full consideration to the factual or legal bases in

support of the petitioner’s claims. Id. at 336. Rather, we conduct an overview of the issues

presented and a general assessment of their merits under the deferential standard of 28 U.S.C. §

2254(d). Id.; accord Tennard v. Dretke, 542 U.S. 274, 282 (2004) (“The petitioner’s arguments

ultimately must be assessed under the deferential standard required by 28 U.S.C. §2254...”).

A

First, Ortiz petitions for a COA to appeal the district court’s denial of his claim that the trial

court erred in granting the State’s challenge for cause to Anna Doporto (“Doporto”), a member of

the venire, because she voiced opposition to the death penalty.6 Ortiz argues that Doporto’s

exclusion from the jury violated his Sixth and Fourteenth Amendment rights as set out by the

Witherspoon-Witt rule. See Wainwright v. Witt, 469 U.S. 412, 424 (1985); Witherspoon v. Illinois,

391 U.S. 510, 521-22 (1968). Under this line of cases, a veniremember may not be excluded from

sitting on a capital jury simply because she voices general objection to the death penalty or expresses

conscientious or religious scruples against its infliction. See Witherspoon, 391 U.S. at 521-22.

However, a veniremember may be excluded for cause when her views on the death penalty would

“prevent or substantially impair the performance of h[er] duties as a juror in accordance with h[er]

6
In the district court, Ortiz claimed that the trial court erred in excluding eighteen other
veniremembers for cause. The district court found that this claim was procedurally defaulted in state
court for failure to object to each veniremember’s exclusion. See Ortiz v. Livingston, 420 F. Supp.
2d at 688-691; see also Ortiz v. State, 93 S.W.3d at 88 (“A party must object to the granting of a
challenge for cause before he can complain of that action on appeal. Because Ortiz failed to object,
his complaints were not preserved with respect to all the challenges except for the complaint raised
[regarding Doporto].”) (footnotes omitted). To the extent Ortiz suggests that these eighteen
veniremembers improperly were excluded, we reject his argument for failure to brief the district
court’s conclusion that these claims were procedurally defaulted. See Hughes v. Johnson, 191 F.3d
607, 613 (5th Cir. 1999).

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instructions and h[er] oath.” Witt, 469 U.S. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45

(1980)). Whether a juror is excludable under the Witherspoon-Witt standard is a question of

fact. See Witt, 469 U.S. at 423-24 (citing Patton v. Yount, 467 U.S. 1025, 1036 (1984)).

Accordingly, the TCCA’s determination of this claim “shall be presumed to be correct,” 28 U.S.C.

§ 2254(e)(1), and Ortiz “shall have the burden of rebutting the presumption of correctness by clear

and convincing evidence.” Id.; see also Witt, 469 U.S. at 412-13. We thus examine the context

surrounding Doporto’s exclusion to determine whether the trial court’s determination that Doporto’s

beliefs would “substantially impair the performance of her duties as a juror” is belied by “clear and

convincing evidence.”

During voir dire, but prior to individual questioning on this point, the trial court spoke to the

entire venire, including Doporto, saying:

I am now going to ask you some questions about your convictions regarding the
death penalty. Be assured that I am not now assuming that you will find the
defendant guilty of capital murder or of any other crime in this case. Nevertheless,
it is necessary to learn your state of mind about capital punishment in general, to
determine whether you have an open mind as regards [to] what might be a just and
proper sentence in a capital case if the defendant in that case is found guilty as
charged.

So I am asking about your state of mind regarding capital murder in general. I am not
asking in this next question what you think would be a just penalty in this or any
particular case. I’m not at this time even asking you about your opinion as regards
the death penalty in a retaliation capital murder case. And I am most especially not
asking what you might think would be a just verdict in this case—in this particular
case. I am asking, rather, whether for religious or philosophical or any other reason
you believe that the death penalty should never be inflicted in any case, regardless of
what the evidence might be.

In answering this next question, keep in mind that the circumstances and motives for
the commission of crimes, including capital murder, are unlimited. Place a check
mark by your answer, yes or no. Do you have conscientious scruples in regard to the
infliction of death for a person convicted of capital murder? Yes or no?

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 If you answered the proceeding [sic] question yes, come up to the bench now.

Doporto was one of several veniremembers who identified themselves as having significant

conscientious scruples against the death penalty. She approached the bench, and the following

exchange ensued:

Ms. Doporto: Number 88, Anna Doporto. I have seen other murder cases and have
agreed with the death penalty, but I don’t feel I could bring a death
penalty for somebody, to put that pressure on me.

The Court: Ma’am it’s not a question right now of how you feel about your
serving as a juror. Right now, are you opposed to the death penalty
in all cases?

Ms. Doporto: No, sir.

The Court: Could you ever, sitting as a juror, no matter—no matter what the
evidence showed, vote to inflict the death penalty?

Ms. Doporto: No, sir.

The Court: Anybody want to ask a further question[?]

Neither the State nor the defense accepted the trial court’s invitation to ask additional questions. The

State then moved to exclude Doporto for cause, the judge granted the State’s motion, Ortiz’s counsel

objected, and the judge overruled the objection.

On direct appeal, the TCCA rejected Ortiz’s claim that Doporto had been improperly

excluded for cause because of her views on capital punishment. Applying the Witherspoon-Witt

standard, the TCCA concluded:

The trial court’s question to Deporto [sic], asking whether she could vote to inflict
the death penalty, was not clearly worded, and any answer to that question, in
isolation, would be inconclusive on the question of whether a prospective juror is
challengeable under Witt. However, the trial court had earlier phrased the issue
clearly and correctly . . . , and the question directed specifically at Deporto [sic] was

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 asked in the context of a juror who had already expressed doubt about her ability to
personally assess the death penalty. A prospective juror is challengeable for cause
under Witt if she could never personally impose the death penalty, regardless of the
facts of the case, even though she might support imposition of the death penalty in the
abstract or if someone else imposed it. Although the trial court’s question to Deporto
[sic] was ambiguous, the record in this case was sufficient for the trial court to believe
that Deporto [sic] could never personally vote in such a manner that the death penalty
would be assessed. The trial court did not abuse its discretion in granting the State’s
challenge for cause.

Ortiz, 93 S.W.3d at 90.

On federal habeas review, the district court also denied relief out of deference to the state trial

court’s determination that Doporto was unwilling to impose the death penalty even when the law or

facts called for it. The court explained: “whether a particular member of the jury pool is or is not

biased and therefore properly seated on the jury is a question of fact based on the trial judge’s on-the-

spot assessment of credibility and demeanor,” and the TCCA’s “decision did not represent an

unreasonable determination of the facts in light of the evidence before it.” Ortiz, 420 F. Supp. 2d at

699, 700.

On this record, we do not find the district court’s conclusion to be debatable or wrong. The

TCCA identified and applied the correct Witherspoon-Witt rule and deferred to the trial court’s

assessment of Doporto’s inability to apply the law of capital punishment. The TCCA’s decision to

defer to the trial court is not an unreasonable application of law, as the Supreme Court has explicitly

held that “[s]uch determinations [are] entitled to deference even on direct review; ‘the respect paid

such findings in a habeas proceeding certainly should be no less.’” Witt, 469 U.S. at 428 (internal

quotations and citations omitted).

Ortiz’s argument that the colloquy between the trial judge and Doporto was too ambiguous

to support the trial court’s decision is unavailing. Doporto was asked if she could “ever, sitting as

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a juror, no matter—no matter what the evidence showed, vote to inflict the death penalty,” and she

replied “No, sir.” Her answer supports the trial court’s finding of “substantial impairment” under

Witt. Even though Doporto gave conflicting signals of her ability to serve on the jury given her

opposition to capital punishment—she seemed to both “agree[] with the death penalty” in some cases

but did not “feel” that she could impose it herself—ambiguity alone does not undermine the trial

court’s decision to exclude her. Rather, “the trial court, aided as it undoubtedly [is] by its assessment

of [the veniremember’s] demeanor, [is] entitled to resolve [ambiguity] in favor of the State.” Uttecht

v. Brown, 127 S. Ct. 2218, 2223 (2007) (quoting Witt, 469 U.S. at 434); see also Darden v.

Wainwright, 477 U.S. 168, 178 (1986) (“[Even when t]he precise wording of the question asked of

[the veniremember], and the answer he gave, do not by themselves compel the conclusion that he

could not under any circumstance recommend the death penalty,” the need to defer to the trial court

remains because so much may turn on a potential juror’s demeanor.); Ruiz v. Quarterman, 460 F.3d

638, 646 (5th Cir. 2006) (observing that the trial judge sees the juror’s demeanor, which is oftentimes

more indicative of the real character of the [juror’s] opinion, but demeanor “cannot always be spread

upon the record.”).7

We also reject Ortiz’s contention that the wording of the questions asked Doporto during voir

dire did not correctly state the relevant legal standard under Witt. Ortiz takes issue with the fact that

the trial court, at one point, asked the entire venire: “do you have conscientious scruples in regard

to the death penalty?” Under Witherspoon, this is an impermissible reason for excluding

7
We note, however, that “[t]he need to defer to the trial court’s ability to perceive jurors’
demeanor does not foreclose the possibility that a reviewing court may reverse the trial court’s
decision where the record discloses no basis for a finding of substantial impairment.” Uttech, 127
S.Ct. at 2230 (emphasis added). We deny a COA on this claim because there was a basis in the
record for finding substantial impairment.

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veniremembers from the jury. 391 U.S. at 520-21. He also asserts that the trial court erred by not

expressly asking Doporto whether her views would prevent or disable her from answering the

statutory mitigation questions regarding the death penalty honestly.

Clearly established law, however, does not mandate precise voir dire questions, as

“determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results

in the manner of a catechism.” Witt, 469 U.S. at 424. Contrary to Ortiz’s contentions, the Supreme

Court previously has held that a line of questioning virtually identical to the questioning in this case

was an acceptable means to determine whether a veniremember should be excluded under the

Witherspoon-Witt standard. In Darden v. Wainwright, a juror was excluded properly for his

affirmative answer to “Do you have any moral or religious, conscientious moral or religious principles

in opposition to the death penalty so strong that you would be unable without violating your own

principles to vote to recommend a death penalty regardless of the facts?” 477 U.S. at 178. This

colloquy is hardly different from Doporto’s affirmative answer to “Could you ever, sitting as a juror,

no matter—no matter what the evidence showed, vote to inflict the death penalty?” Moreover, the

circumstances surrounding Doporto’s questioning show that she understood that she was to answer

whether she would be able to follow the law in spite of her views on the death penalty.8 See id.

During voir dire, prior to the questioning specific to the death penalty, the trial judge instructed the

venire on how they were to answer questions on their role in applying the law:

8
Ortiz contends that Doporto reasonably could have understood the trial judge’s question
to have meant whether she would be willing to vote for the death penalty “no matter what the
evidence showed” or, in other words, whether she would always vote for the death penalty. Not only
is this interpretation far-fetched, but as explained below, the entire colloquy, viewed as a whole,
reveals that a juror must have understood the opposite—whether Doporto would have been unwilling
to vote for the death penalty, even if it were mandated by the facts.

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 There are certain rules of law that the Court—that means the Judge—instructs every
juror to obey in every criminal case. To be qualified to serve as a juror, a person must
be able to obey those instructions. Now, a person may not be able to obey the
instruction because he has such a deep-seated disagreement with the law or for any
other reason. [But] the jury has to be able to accept the law and say, All right, I don’t
like it, but I can rule according to it, judge the case according to it. Or you can say,
I don’t like it so much there’s no way I can follow that law.

The trial court also explained the eight circumstances under which murder becomes capital murder

in Texas, and detailed the “special issues” questions that would be asked during sentencing if the jury

were to find the defendant guilty. It was in this context—after being instructed on the importance

of separating one’s personal beliefs from applying the law and after being told the mitigation facts that

must be found during capital sentencing—that Doporto was asked whether she could ever vote for

the death penalty. Like the veniremember in Darden, Doporto “was present throughout an entire

series of questions that made the purpose and meaning of the Witt inquiry absolutely clear,” 477 U.S.

at 178, and we thus defer to the trial judge’s determination of Doporto’s capabilities under that

standard.9 Accordingly, reasonable jurists would not debate the district court’s decision.

B

Second, Ortiz petitions for a COA to appeal the district court’s denial of his claim that the

Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona,

536 U.S. 584 (2002), render the Texas death penalty sentencing scheme unconstitutional because the

scheme does not require the State to prove beyond a reasonable doubt the absence of those mitigating

factors that would warrant life imprisonment rather than a death sentence. Ortiz did not present any

mitigating evidence during sentencing, but he challenges the mitigation “special issue” that was asked

9
Also probative is Ortiz’s counsel’s decision not to question Doporto, which deprived
reviewing courts of additional factual findings that may have further explained the trial court’s
decision or indicated that Doporto was not substantially impaired. Uttech, 127 S.Ct. at 2229.

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of the jury:

Whether, taking into consideration all of the evidence, including the circumstances of
the offense, the defendant's character and background, and the personal moral
culpability of the defendant, there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment without parole rather
than a death sentence be imposed.

See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(e) (Vernon 1999). Texas law does not assign a

burden of proof to the mitigation question, and Ortiz asserts that the lack of a beyond-a-reasonable-

doubt instruction is constitutional error.

The TCCA rejected Ortiz’s claim based on Williams v. State, 937 S.W.2d 479 (Tex. Crim.

App. 1996), which held that “[b]ecause Texas law imposes the burden of proof upon the State to

prove certain prescribed aggravating elements, a burden of proof need not be prescribed for

aggravating circumstances that might be considered in conjunction with Texas’ open-ended mitigation

issue.” Id. at 491. The district court concluded that the TCCA’s decision was not unreasonable

when neither Apprendi, nor Ring, nor any other Supreme Court case requires a burden of proof for

the absence of mitigating factors presented during sentencing. Ortiz v. Livingston, 420 F. Supp. 2d

at 728.

We decided this question in Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 2007).

The Texas death penalty scheme does not violate Apprendi or Ring by failing to require the State to

prove beyond a reasonable doubt the absence of mitigating circumstances. Id.; see also Granados

v. Quarterman, 455 F.3d 529, 536 (5th Cir.), cert. denied, 127 S.Ct. 732 (2006).

IV

For the foregoing reasons, we AFFIRM the judgment of the district court DENYING habeas

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relief, and we DENY the application for a COA.

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