United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 10, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-70047
ROLANDO RUIZ,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN,
Respondent-Appellee.
Appeal from the United States District Court
For the Western District of Texas
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Rolando Ruiz was sentenced to death after a jury in Bexar
County, Texas, convicted him of capital murder. Texas state courts
affirmed his conviction and sentence and refused habeas relief. The
federal district court dismissed his federal habeas petition,
finding his claims of ineffective assistance of counsel and
unconstitutional strictures of argument in mitigation procedurally
barred and rejecting his contention that the state trial court erred
in sustaining the State’s challenge for cause of a member of the
venire. The court refused certificate of appealability except as
to the last claim. We refuse Ruiz’s request for certificate of
appealability on the first two claims and affirm the district
court’s judgment on the third.
I
-1-
On January 18, 1995, a jury in Bexar County, Texas, convicted
Ruiz of capital murder and in the punishment phase gave affirmative
answers to the two interrogatories required by Texas law. He was
then sentenced to death. The Texas Court of Criminal Appeals
affirmed the conviction and death sentence.1 Ruiz filed a state
habeas application on September 15, 1997, for which the state trial
court issued its findings of fact and conclusions of law on December
30, 2002, recommending that the Texas Court of Criminal Appeals deny
relief. It did.2
Ruiz then filed his federal petition, claiming ineffective
assistance of counsel, unconstitutional strictures of argument in
mitigation, and error in the state trial court’s sustaining the
State’s challenge for cause of a member of the venire, assertedly
“Witherspoon error.”3 The district court denied relief, finding the
first two claims procedurally barred because Ruiz failed to exhaust
1
State v. Ruiz, unpub. op., No. 72,072 (TEX. CRIM. APP. Feb.
25, 1998).
2
Ex Parte Rolando Ruiz, unpub. op., No. 27,328 (TEX. CRIM. APP.
April 2, 2003).
3
See Witherspoon v. Illinois, 391 U.S. 510 (1986); Wainwright
v. Witt, 469 U.S. 412 (1982). Ruiz made other claims that he does
not pursue here.
2
them in state court, thus raising an independent state procedural
bar to relief, and rejecting the third claim. The court refused
certificate of appealability on its procedural rulings but granted
COA on the Witherspoon claim.4
-2-
There was sufficient evidence at trial from which the jury
could conclude that Ruiz was hired by Mark and Michael Rodriguez to
murder Michael’s wife, Theresa, for two thousand dollars; that he
did so by shooting her in the head at close range with a .357
revolver.
II
We turn first to the request for COA. COA will issue only if
Ruiz makes a substantial showing of the denial of a constitutional
right, a showing that “reasonable jurists could debate whether (or,
for that matter, agree that)” the court below should have resolved
the claims in a different manner or that this Court should encourage
Ruiz to further litigate his claims in federal court.5
4
Mr. Ruiz moved to alter or amend the judgment under Federal
Rule 59(e). That motion was denied on September 13, 2005. He also
moved to stay the proceedings and hold the case in abeyance. His
request was denied on September 15, 2005. He requested COA from
the U.S. District Court on the issues previously denied, and this
request was denied on October 13, 2005. Finally, Mr. Ruiz’s motion
to reconsider, alter or amend the judgment and order denying the
COA application was denied on November 30, 2005.
5
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)); Dowthitt v.
Johnson, 230 F.3d 733, 740 (5th Cir. 2000).
3
As the lower court denied the first two claims on procedural
grounds without reaching the merits of the underlying constitutional
claims, COA should issue only if Ruiz demonstrates that “jurists of
reason would find it debatable whether the petition states a valid
claim of a denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.”6 The determination of either
issue requires “an overview of the claims in the habeas petition and
a general assessment of their merits,” but not “full consideration
of the factual or legal bases adduced in support of the claims.”7
We find it plain that the soundness of the district court’s denials
of the claims as procedurally barred is not debatable among
reasonable jurists and we refuse Ruiz’s request for COA.
The exhaustion doctrine of 28 U.S.C. § 2254(b)(1) codifies
long-developed principles of comity.8 Before a federal court can
find merit in alleged errors by state courts, a petitioner must have
first provided the state’s highest court with a fair opportunity to
apply (1) the controlling federal constitutional principles to (2)
6
Slack, 529 U.S. at 484 (emphasis added); Kutzner v. Johnson,
242 F.3d 605, 608 (5th Cir. 2001).
7
Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004) (quoting
Miller-El, 537 U.S. at 336 ).
8
Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-10 (1992); Picard v.
Connor, 404 U.S. 270, 275, 277-78 (1971); Dowthitt, 230 F.3d at
745-46.
4
the same factual allegations.9 This requirement is designed to give
state courts the initial opportunity to pass upon and, if necessary,
correct errors of federal law in a state prisoner’s conviction or
sentence.10 The purpose of exhaustion “is not to create a
procedural hurdle on the path to federal habeas court, but to
channel claims into an appropriate forum, where meritorious claims
may be vindicated and unfounded litigation obviated before resort
to federal court.”11
A fair opportunity requires that all the grounds of the claim
be first and “fairly presented” to the state courts.12 In other
words, in order for a claim to be exhausted, the state court system
must have been presented with the same facts and legal theory upon
which the petitioner bases his current assertions.13 “[I]t is not
enough ... that a somewhat similar state-law claim was made.”14 An
argument based on a legal theory distinct from that relied upon in
9
Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Rose v. Lundy,
455 U.S. 509, 522 (1982); Anderson v. Harless, 459 U.S. 4, 6
(1982); Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990).
10
Picard, 404 U.S. at 275-76.
11
Keeney, 504 U.S. at 10.
12
Picard, 404 U.S. at 275.
13
Id. at 275-77.
14
Wilder v. Cockrell, 274 F.3d 255, 260 (5th Cir. 2001)
(citing Anderson, 459 U.S. at 6).
5
the state court does not meet the exhaustion requirement.15
“Exhaustion ‘requires a state prisoner to present the state courts
with the same claim he urges upon the federal courts.’”16 AEDPA
excuses these requirements only if the petitioner shows “(i) there
is an absence of available state remedies in the courts of the
State, or (ii) circumstances exist that render such processes
ineffective to protect the rights of the applicant.”17
Furthermore, where a petitioner has failed to exhaust claims
in state court, and that failure would now result in the state
procedurally rejecting those claims, the petitioner has procedurally
defaulted the claims and we must find them procedurally barred.18
Exceptions to procedural default exist where the petitioner shows
“cause and actual prejudice” or that application of the procedural
bar will result in a “fundamental miscarriage of justice.”19
Ruiz’s relevant claims of ineffective assistance of counsel at
trial and unconstitutional strictures of argument in mitigation
first came in his petition for habeas relief filed in federal
district court. The state responded that the court could not hear
those claims because Ruiz did not present them to the state courts,
15
Id. at 259 (citing Vela v. Estelle, 708 F.2d 954, 958 n.5
(5th Cir. 1983)).
16
Id. at 261 (citing Picard, 404, U.S. at 276).
17
28 U.S.C. § 2254(b)(1)(b).
18
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
19
Id. at 750.
6
although he could have done so, at the least in a petition for state
habeas relief; moreover, Texas courts would now dismiss the claims
as an abuse of the writ without reaching their merits. The court
agreed, finding that Ruiz had not established excuse under AEDPA for
failure to exhaust or an applicable exception to procedural default.
It then refused to grant COA, a request now made to this court.
Ruiz does not contend that he did not know that state habeas
offered an avenue for presenting his claims or that the claims were
presented. Rather, his present counsel argues, as he did to the
district court, that for two reasons there should be no procedural
bar here. First, Ruiz contends that his state habeas counsel was
ineffective. Ruiz’s state habeas counsel filed a petition on behalf
of Ruiz asserting seventeen claims, eight of which claimed
ineffective assistance of trial counsel. Ruiz’s present claim is
that his lawyer failed to allege two claims. First, a claim of
ineffective assistance of trial counsel with two specifications:
that trial counsel failed to perform a social history and background
investigation in preparing for the sentencing phase of the trial and
failed to offer the report or the testimony of Dr. Harry Munsinger
at the sentencing stage. Second, a claim that Ruiz was denied due
process by the state trial court’s instruction to the jury to
disregard a portion of defense counsel’s closing argument regarding
the co-defendant who hired Ruiz to murder, as charged in the
indictment. The federal district court agreed that trial counsel
was ineffective and suggested that state habeas counsel was
7
ineffective, but it properly rejected Ruiz’s argument for the reason
that incompetence of habeas counsel is not an excuse under 28 U.S.C.
§ 2254 (b)(1)(B) of AEDPA for failure to exhaust or “cause” for an
exception to procedural default because Ruiz had no constitutional
right to counsel in habeas proceedings.20 This is true even where
a claim cannot be brought, or brought effectively, until state
habeas proceedings.21
Second, Ruiz re-characterizes his claim of ineffective habeas
counsel by asserting that the State obstructed his efforts to
prosecute the claims by appointing incompetent counsel, effectively
making his state remedy illusory and, hence, insulating his claims
from federal review through the doctrine of procedural default. In
Ruiz’s view, he would be better off if there had been no state
habeas proceeding available or if he had had no appointed counsel.
According to Ruiz, this situation resulted from a “structural
deficiency” in the state habeas system, rendering that system
“absent” or “ineffective to protect [his] rights” under AEDPA and
providing cause for his procedural default. Yet the law of this
Court is clear: ineffective state habeas counsel does not excuse
20
See, e.g., Coleman, 501 U.S. at 722; Martinez v. Johnson,
255 F.3d 229, 239-40 (5th Cir. 2001); Beazley v. Johnson, 242 F.3d
248, 270-72 (5th Cir. 2001); Elizalde v. Dretke, 362 F.3d 323, 330
(5th Cir. 2004). The district court analyzed the issue only when
discussing “cause.”
21
See Martinez, 255 F.3d at 239-40; Beazley, 242 F.3d at 256;
Elizalde, 362 F.3d at 330.
8
failure to raise claims in state habeas proceedings.22 Where the
state has provided a habeas remedy, the petitioner must pursue it
before filing in federal court, even if the state provides
ineffective habeas counsel.
In a further effort to show “cause” for his failure to raise
these claims in state court, Ruiz seeks to show that an “objective
external factor”23 impeded his ability to follow state procedural
rules. He contends that the state affirmatively interfered with his
efforts to acquire new counsel for direct appeal, a replacement for
Donald Mach, his trial counsel, which Ruiz thought necessary to
prosecute his claims of ineffective assistance of trial counsel.
But, as the trial court explained, it refused to dismiss Mach
because any claims of ineffective assistance of trial counsel could
be raised in a state habeas petition for which, moreover, Ruiz had
already filed a request for appointment of counsel. Hence whatever
force exists behind Ruiz’s argument that ineffectiveness of state
habeas counsel creates “cause” (or prompts a 28 U.S.C. § 2254
(b)(1)(B) exception to AEDPA), this contention adds nothing.24
22
See supra notes 20 and 21.
23
Coleman, 501 U.S. at 722; Murray v. Carrier, 477 U.S. 478
(1986).
24
Ruiz suggests that his appellate counsel’s “conflict of
interest” highlights how the state stacked the cards against him:
ineffective trial counsel, state habeas counsel, and appellate
counsel. But ineffectiveness of trial counsel is generally an
issue for habeas precisely because trial counsel usually pursues
the direct appeal. Ex parte Torres, 943 S.W. 2d 469, 475 (Tex.
Crim. App. 1997). And whatever the reason Mach did not pursue the
9
Finally, Ruiz urges that the procedural bar here works a
“miscarriage of justice”.25 This requires a showing by clear and
convincing evidence that, “but for the constitutional error at
[Ruiz’s] sentencing hearing, no reasonable juror would have found
him eligible for the death penalty” under state law.26 Ruiz points
evidence neglected by his ineffective trial counsel, specifically
his allegedly damaging social history and background and drug use.
The State points to evidence before the jury of Ruiz’s violent
conduct – the brutal facts of the murder, Ruiz’s carrying guns,
aggravated robbery, assaults of his girlfriend, and membership in
the “Texas syndicate gang,” and that while in jail awaiting trial,
Ruiz committed at least three violent gang-related injury-producing
assaults of detention officers and other inmates.
The absence here of the required “clear and convincing
evidence” that “no reasonable juror” would have found Ruiz eligible
for the death penalty is not debatable among jurists. We are
persuaded that reasonable jurists would not debate the trial court’s
unconstitutional strictures of argument claim, it is unrelated to
his “conflict of interest” about which Ruiz complains.
25
Sawyer v. Whitley, 505 U.S.333, 335-35 (1992).
26
Id. at 347. Under Texas law, the jury must find the
defendant likely to be a continuing threat to society and find an
absence of “sufficient mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment rather than a death
sentence be imposed.” TEX. CODE CRIM. P. art. 37.071, § 2(e)(1).
Ruiz contends that the neglected evidence vitiates both prongs.
10
determination that Ruiz failed to establish this exception to
procedural default, and we refuse to issue COA.
III
The sole claim of error remaining in this appeal and the only
claim for which COA has issued is that the trial court erred in
granting the state’s challenge for cause of Ms. Castro, a member of
the venire. This allegedly violated Witherspoon v. Illinois,27
where the Supreme Court held that jurors may not be excused from
sitting on capital juries simply because they voiced general
objection to the death penalty or expressed conscientious or
religious scruples against its infliction.
This prospective juror gave conflicting signals of her ability
to serve on the jury given her opposition to capital punishment.
She stated in her juror questionnaire that she was opposed to
capital punishment. While in open court she stated that she did not
believe in capital punishment but, if instructed to do so, could
follow the court’s instructions. She also testified that “I think
my answer to this point is that I get out of here and I’m going to
start some kind of action against the death penalty to change the
law.” The latter statement was apparently the tipping point for the
trial judge, who observed, “I went along until she said she was
going to get involved in an organization doing away with the death
penalty.”
27
391 U.S. 510 (1986).
11
The Texas Court of Criminal Appeals summarized Castro’s various
statements as follows:
First, she told the State in effect that she would never
be a part of a jury that would impose the death penalty
and would vote to ensure that a life sentence with no
parole before 35 years would be given. Then she told
[Ruiz] she could be fair and listen to the evidence and
let the trial court set the sentence. Then she told the
State that she would influence her verdict so that she
would not ever really consider giving the death penalty
and would vote for a life sentence. When the trial court
tried to straighten things out, Castro told him she
wanted to start a group to work to abolish the death
penalty.
Lay persons come to the courthouse with varying levels of
education and thought about capital punishment. The opening of a
capital trial is an alien environment to citizens called from jobs
and homes. Lay persons are confronted by skilled lawyers engaged in
an adversarial contest who probe their views on a profound and
divisive social issue, usually with a goal of retention or exclusion
shaping the questions. We know from experience that the result is
often a series of responses that seem to shift and turn and even
conflict as questions are framed, reframed and just repeated. A
stranger to the trial reading the bare transcript is left with
incomplete sentences and elliptic answers with no reconciling theme.
Yet one present at trial may well have had a quite different
picture. Inflection of voice and body movements of each cast
member, absent from the transcript, are present at trial. Until at
least twenty-one years ago, such transcripts confounded appellate
courts. Wainwright v. Witt responded to the not infrequent
12
frustration of appellate review of the calls of trial judges made in
the process of selecting jurors for the trial of capital cases —
with a pragmatic solution.28 The court acknowledged that a
prospective juror’s bias “involves credibility findings whose basis
cannot be easily discerned from an appellate record.”29 The Court
observed: “[T]he manner of the juror while testifying is oftentimes
more indicative of the real character of his opinion than his words.
That is seen [by the trial court] below, but cannot always be spread
upon the record.”30 “Despite this lack of clarity in the printed
record, there will be situations where the trial judge is left with
the definite impression that a prospective juror would be unable to
faithfully and impartially apply the law.”31 Ms. Castro is the
classic wavering prospective juror. This was a call to be made by
the trial judge, and there is no record basis for concluding that
the court abused its discretion. It follows that we cannot say that
the decision of the state court in this case was an unreasonable
application of the law as decided by the Supreme Court, and we
affirm the denial of federal habeas relief by the district court.
In sum, we refuse to grant the requested COA and affirm the
judgment of the district court denying federal relief.
28
469 U.S. 412 (1985).
29
Id. at 429
30
Id. at 429 n.9
31
Id. at 425-26
13
14