Ries v. Quarterman

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

FILED
March 27, 2008

No. 06-70052 Charles R. Fulbruge III
Clerk

JOSEPH RAY RIES,

Petitioner - Appellant,
v.

NATHANIEL QUARTERMAN, Director, Texas Department of Criminal
Justice, Correctional Institutions Division,

Respondent - Appellee.

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

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
In this death penalty case, petitioner-appellant Joseph Ray Ries, a Texas
state prisoner, appeals the district court’s denial of his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court
conviction for capital murder and his sentence of death.
Ries raises four issues. First, Ries argues that the district court erred in
determining that two of his Sixth Amendment claims for ineffective assistance
of counsel were not exhausted and thus procedurally barred. Second, he argues
that his attorneys at trial were ineffective in their presentation of mitigation
evidence during the penalty phase of his trial. Third, Ries argues that his trial
attorneys were ineffective for failing to object to several statements in the
 No. 06-70052

prosecutor’s closing argument. Finally, he argues that his appellate counsel was
ineffective for failing to raise on appeal a claim that the district court erred in
redacting statements of remorse from a video-taped confession by Ries.
For the following reasons, we AFFIRM the judgment of the district court.

I
Ries was convicted of capital murder in Texas state court for intentionally
causing the death of Robert Ratliff by shooting him in the course of a burglary.
TEXAS PENAL CODE § 19.03(a)(2). The Texas Court of Criminal Appeals
summarized the evidence supporting Ries’s conviction as follows:
The evidence showed that [Ries] first met Robert Ratliff, the
victim, in the fall of 1998. They formed a friendship, and at some
point, [Ries] moved in to live with Ratliff. However, there was later
a dispute about missing property, and [Ries] was evicted from
Ratliff’s house. On February 18, 1999, [Ries] and several associates
stole a pickup truck from Ratliff’s residence. [Ries] and Christopher
White drove to San Antonio in the truck, but because the pickup did
not get good gas mileage, they decided to return to the Ratliff
residence and take a Lincoln Continental. They arrived at Ratliff’s
place on the evening of February 21st, but neither Ratliff nor his
Lincoln Continental was present. [Ries] and White broke into the
house and took some items, including two .22 rifles. Later that
evening, they drove the pickup into a pond, so that the truck was
completely submerged. Hiding behind a barn, they watched Ratliff
come home and waited until the lights in the house were turned off
(approximately thirty minutes later).
[Ries] and White then entered the house. [Ries] sneaked into
Ratliff’s bedroom and took the victim’s wallet and car keys. Before
exiting the room, [Ries] shot Ratliff in the back as he slept in bed.
The victim then awoke, and [Ries] shot him in the neck. Hearing
the noise, White entered the room and asked what had happened.
[Ries] sent White out of the room and fired one last, fatal shot
behind the victim’s ear. [Ries] and White then took the Lincoln
Continental and drove away.

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Ries v. State, No. 73, 737, at 2–3 (Tex. Crim. App. June 12, 2002). Following the
penalty phase of the trial, based on the jury’s answers to the Texas special
sentencing issues, the trial court sentenced Ries to death.
The Court of Criminal Appeals affirmed Ries’s conviction and sentence on
direct appeal. Ries did not seek certiorari review. Subsequently, Ries filed a
state post-conviction application for a writ of habeas corpus, which the Court of
Criminal Appeals denied. Ries filed this petition for federal habeas relief, which
the district court denied. See Ries v. Quarterman, No. 1:04-CV-367, 2006 WL
3147384 (E.D. Tex. Oct. 31, 2006). Ries timely filed his notice of appeal, and the
district court granted a Certificate of Appealability on all of Ries’s claims.

II
“In a habeas corpus appeal, 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).
Because Ries filed his federal habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the district
court’s federal habeas review was governed by AEDPA. Under AEDPA, habeas
relief is not available to a state prisoner
with respect to any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). “Under AEDPA, our duty is to determine whether the state
court’s determination was contrary to or an unreasonable application of clearly

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established federal law as determined by the Supreme Court at the time that
[Ries’s] conviction became final” in 2002.1 Nelson v. Quarterman, 472 F.3d 287,
293 (5th Cir. 2006) (en banc) (citing Williams v. Taylor, 529 U.S. 362, 405
(2000)); Peterson v. Cain, 302 F.3d 508, 511 (5th Cir. 2002) (“[F]ederal habeas
courts must deny relief that is contingent upon a rule of law not clearly
established at the time the state conviction becomes final.”).
A state court decision is contrary to clearly established Supreme Court
precedent if: (1) “the state court applies a rule that contradicts the governing
law set forth in [the Supreme Court’s] cases,” or (2) “the state court confronts a
set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [Supreme
Court] precedent.” Williams, 529 U.S. at 405–06. A state court decision is an
unreasonable application of clearly established Supreme Court precedent if the
state court “correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case.” Id. at 407–08. The
inquiry into unreasonableness is objective. Id. at 409–10.
A state court’s incorrect application of clearly established Supreme Court
precedent is not enough to warrant federal habeas relief; such an application
must also be unreasonable. Id. at 410–12. The state court’s factual findings are
presumed to be correct, and the habeas petitioner has the burden of rebutting
that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III

1
A state conviction becomes final when the time for direct review has expired,
regardless of when the state court issues its mandate. See Flores v. Quarterman, 467 F.3d 484,
485 (5th Cir. 2006) (per curiam) (citing Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003)).
Here, Ries’s conviction and sentence were affirmed on direct appeal on June 12, 2002. Because
Ries did not seek certiorari review, his conviction became final ninety days later, following the
expiration of the time to seek such review. Roberts, 319 F.3d at 694.

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Ries first argues that the district court erred in dismissing two of his
claims for failure to exhaust. In his state habeas petition, Ries claimed that his
trial counsel provided ineffective assistance under the Sixth Amendment for
failing to “effectively marshal” and to “present” mitigating evidence during the
penalty phase of his trial. In his federal habeas petition, Ries asserted the broad
claim that trial counsel failed adequately to present the defense’s case on
mitigation of punishment. Ries sub-divided this broad claim into three distinct
claims, each focusing on a particular phase of his state trial: (1) trial counsel
was ineffective in failing to voir dire the jury panel on mitigating evidence; (2)
trial counsel was ineffective in the presentation of mitigating evidence during
the penalty phase of the trial; and (3) trial counsel was ineffective in arguing the
case for mitigation in closing, following the penalty phase of the trial.
The district court concluded that only Ries’s second sub-claim, that trial
counsel was ineffective in the presentation of mitigation evidence during the
penalty phase of the trial, was fairly presented to the state courts. The district
court determined that Ries’s first and third sub-claims were not fairly presented
to the state courts and, as a result, were unexhausted and procedurally barred.
Ries argues that his state claim necessarily invited scrutiny of all aspects of
counsel’s trial performance with respect to mitigation and thus the district court
erred in concluding that his first and third claims were unexhausted.
Pursuant to 28 U.S.C. § 2254(b)(1)(A), “[a]n application for a writ of habeas
corpus on behalf of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that the applicant has exhausted the
remedies available in the courts of the State.” See Moore v. Quarterman, 491
F.3d 213, 220 (5th Cir. 2007). “The exhaustion requirement ‘is not jurisdictional,
but reflects a policy of federal-state comity designed to give the State an initial
opportunity to pass upon and correct alleged violations of its prisoners’ federal
rights.’” Id. (quoting Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003)).

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Whether the petitioner has exhausted state remedies is a question of law, which
we review de novo. Id.; Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2005).
To satisfy the exhaustion requirement, the petitioner must fairly present
the substance of his federal habeas claim to the highest state court. Vasquez v.
Hillery, 474 U.S. 254, 257–58 (1986); Morris, 413 F.3d at 491. However, “[t]he
habeas applicant need not spell out each syllable of the claim before the state
court to satisfy the exhaustion requirement.” Smith v. Dretke, 422 F.3d 269, 275
(5th Cir. 2005) (citing Lamberti v. Wainwright, 513 F.2d 277, 282 (5th Cir.
1975)); Anderson, 338 F.3d at 386–87 (“[A]s a general rule, dismissal is not
required when evidence presented for the first time in a habeas proceeding
supplements, but does not fundamentally alter, the claim presented to the state
courts.” (quotation marks and emphases omitted)). Nonetheless, the exhaustion
requirement “is not satisfied if the petitioner presents new legal theories or
factual claims in his federal habeas petition.” Anderson, 338 F.3d at 386. “The
exhaustion inquiry . . . is necessarily case and fact specific.” Morris, 413 F.3d at
491.
Failure to exhaust generally is a procedural bar to federal habeas review,
but the bar may be excused if the petitioner “can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); Morris,
413 F.3d at 491–92.
The question here is whether Ries’s state habeas claim—that trial counsel
was ineffective for failing to “effectively marshal” and to “present” mitigating
evidence—fairly presented to the state courts the substance of his federal habeas
claims that trial counsel was ineffective for failing to introduce the case for
mitigation at voir dire and for failing to adequately argue the case for mitigation
in closing. Ries attempts to construe his vague state habeas claim as a broad

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challenge to trial counsel’s treatment of the mitigation defense at trial, from
start (voir dire) to finish (closing).
The district court rejected Ries’s effort to construe his state claim so
broadly. Despite the broad language used in Ries’s state habeas application, the
district court concluded that the ineffectiveness challenge based on mitigation
that Ries presented to the state courts was focused and specific: that his
attorneys should have questioned witnesses more extensively and elicited more
detailed testimony on the various exhibits admitted into evidence, which related
to Ries’s abusive and deprived upbringing. Because the district court concluded
that Ries’s state habeas claim focused on the actual introduction of mitigating
evidence through documentary evidence and witness testimony, the district
court reasoned that Ries’s federal habeas claims predicated on counsel’s alleged
deficient handling of the mitigation defense at other stages of the trial, voir dire
and closing, were not fairly presented to the state courts. We agree with the
district court.
Ries’s ineffectiveness claim in state court focused on the introduction of
mitigating evidence. Specifically, his application provided:
Defense counsel clearly were aware of the potentially mitigating
evidence in the State’s exhibits, yet counsel did nothing to
effectively marshal this evidence or subpoena witnesses from
Applicant’s past . . .
* * *
Here, in the instant case, while counsels’ [sic] performance
may have been satisfactory in the guilt stage of the trial, the
grievous error of counsel’s failure to provide any mitigation evidence
at the punishment stage in light of the clear availability of such
evidence falls below a reasonableness standard, and thereby
violated Strickland’s first prong.
* * *
As [the evidence that was admitted] was presented to the jury, it
was a big fat file of extensive records . . . presumptively indicating
life-long recidivism, an incorrigible refusal to conform, and early

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indications of continuing danger. . . . Applicant would show that the
global failure of counsel to present any mitigating evidence clearly
undermines this verdict, and warrants reversal.2
The Texas Court of Criminal Appeals, when presented with Ries’s state habeas
application, initially denied all of his claims for relief, with one exception: Ries’s
claim that “he was denied effective assistance of counsel because his trial
attorneys failed to present any mitigation evidence at the punishment phase of
his trial.” Ex Parte Ries, No. 57,892-01, at 2 (Tex. Crim. App. Mar. 3, 2004). The
Court of Criminal Appeals remanded with instructions:
There is nothing in the habeas corpus record to indicate why counsel
chose not to present mitigation evidence. Therefore, this cause is
remanded to the trial court so that the habeas corpus record can be
supplemented with an affidavit from counsel explaining why they
chose not to present mitigation evidence at the punishment phase
of Appellant’s trial.
Id. Counsel subsequently provided that affidavit, explaining all of the evidence
of mitigation that was presented throughout the entire course of the trial, at
both the guilt-innocence and the penalty phases of the trial. After receiving that
affidavit, the Court of Criminal Appeals denied Ries’s ineffective assistance
claim based on mitigation, stating: “We have reviewed the affidavit and find
that Applicant has failed to show that counsel were ineffective.” Ex Parte Ries,
57-892-01, at 2 (Tex. Crim. App. May 19, 2004).
Ries did not fairly present to the state courts the substance of his claim
that trial counsel was ineffective in failing to explore the issue of mitigation
during voir dire. Ries’s state habeas application does not mention the issue of

2
As the parties note, as the district court noted, and as we note here, parts of the state
habeas application appear to have been taken from another case because certain factual
assertions in the state claim, which have been excised from this quotation, do not fit the facts
of Ries’s case. We agree with the district court that such lapses of state post-conviction counsel
are unfortunate in light of the fact that a habeas petitioner cannot raise the ineffectiveness of
state post-conviction counsel to avoid any resultant procedural bar. See Martinez v. Johnson,
255 F.3d 229, 240–41 (5th Cir. 2001).

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trial counsel’s failure to discuss mitigation during voir dire; rather, the state
application focuses specifically on the penalty phase of the trial. Also
instructive, the Court of Criminal Appeals did not consider or address this voir
dire issue. The presentation of mitigating evidence, the critical act on which Ries
based his state habeas claim of ineffective assistance of counsel, is not something
that Texas courts would likely permit during voir dire. See, e.g., Cadoree v.
State, 810 S.W.2d 786, 789 (Tex. App.—Houston [14th Dist.] 1991, writ ref’d)
(“Although allowing questions designed to ascertain the juror’s views and
sentiments on social and moral subjects generally, the courts do not permit a
hypothetical case to be submitted; nor do they allow questions designed to bring
out juror’s views on the case to be tried.” (emphasis added)). The presentation of
evidence in Texas state courts occurs only after a jury is impaneled, and thus
after voir dire occurs. See TEX. CODE CRIM. PRO. Art. 36.01 (detailing the order
of proceedings in a criminal trial). For these reasons, the substance of Ries’s
ineffective assistance claim based on trial counsels’ failure to voir dire on
mitigation was not fairly presented to the state court. The district court thus
correctly concluded that this claim was unexhausted and procedurally barred.
While a closer question, Ries also failed to exhaust his claim that trial
counsel was ineffective in arguing the case for mitigation in closing argument.
Ries framed his state claim as a challenge to trial counsel’s introduction of
exhibits and testimony on mitigation at the penalty phase of the trial. Indeed,
the claim is specifically addressed to counsel’s alleged failure to provide any
mitigating evidence, a point on which the Court of Criminal Appeals remanded
the case, and the point to which trial counsel’s affidavit responds. Regardless,
Ries’s state habeas application does not mention any specific deficiencies with
respect to trial counsel’s closing argument; as such, nothing about Ries’s state
claim would have placed the state courts on notice that Ries was asserting a
specific claim based on trial counsel’s closing argument.

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Moreover, while the issue of ineffective assistance was explored during a
state writ hearing, nothing in the transcript of that state hearing indicates that
trial counsel’s treatment of mitigation in closing argument was at issue.3
Instead, the transcript indicates that the ineffectiveness claim related to
mitigation focused on trial counsel’s introduction of exhibits and testimony, not
trial counsel’s closing argument. Ries did not fairly present to the state courts
his claim that trial counsel ineffectively argued mitigation in closing. As such,
the district court correctly concluded that this claim was unexhausted and
procedurally barred.4
In sum, the district court properly dismissed Ries’s challenge to trial
counsel’s use of mitigation at voir dire and discussion of mitigation in closing
argument as unexhausted and procedurally barred.5

3
The transcript of the state writ hearing was not included in the record considered by
the district court. This court granted the State’s unopposed motion to supplement the record
on appeal to include this transcript, which according to the State, was missing from the record
that the district court received from the Texas Court of Criminal Appeals.
4
This case is distinguishable from Vela v. Estelle, 708 F.2d 954 (5th Cir. 1983), relied
on by Ries. There we concluded that allegations asserted in the petitioner’s federal habeas
petition that were not expressly enumerated in his prior state habeas brief were nevertheless
fully exhausted. Id. at 960–61. However, in Vela, the narrower, previously unarticulated
allegations fell within the scope of the broad ineffective assistance claim asserted in that case,
which had been fairly presented to and decided by the state court. See id. at 959–60. Here,
in contrast, Ries’s previously unarticulated mitigation claims based on voir dire and closing
argument fall outside the scope of his ineffective assistance claim based on the presentation
of mitigation evidence, properly construed to refer to the introduction of witness testimony and
documentary evidence; there is no indication that the state court considered, much less
decided, either the voir dire mitigation claim or the closing argument mitigation claim. As
such, the substance of these claims was not fairly presented to the state court.
Ries also relies on Smith v. Dretke, 422 F.3d 269 (5th Cir. 2005). That case, however,
involved a request for a Certificate of Appealability and thus merely addressed whether “jurists
of reason would find it debatable whether the district court was correct in its procedural
ruling.” Id. at 274. Given that case’s procedural posture, it offers little guidance.
5
Ries argues that this procedural default should be excused based on the deficient
performance of his state habeas counsel. However, he acknowledges that the ineffective
assistance of state habeas counsel cannot provide cause to excuse a procedural default. See
Elizalde v. Dretke, 362 F.3d 323, 330 (5th Cir. 2004). He therefore argues instead that his
right to competent post-conviction counsel under Texas state law, TEX. CODE CRIM. PRO. Art.

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IV
Turning to the merits, Ries’s federal habeas petition consists of several
claims of ineffective assistance of counsel. These claims are governed by the
familiar framework of Strickland v. Washington, 466 U.S. 668 (1984). Ries must
establish: (1) “that counsel’s representation fell below an objective standard of
reasonableness” and (2) that the deficient representation caused prejudice,
which requires a showing that there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Williams, 529 U.S. at 390–91 (quoting Strickland, 466 U.S. at 688,
694). Our scrutiny of counsel’s performance is “highly deferential” and there is
a “strong presumption” that any alleged deficiency “falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at 689.

A
As discussed above, Ries claims that trial counsel was ineffective in
presenting the defense’s case for mitigation. He presents this claim as several
sub-claims, only one of which is exhausted: trial counsel was ineffective in the
presentation of mitigating evidence during the punishment phase of his trial.
This claim refers to the manner and means in which Ries’s trial counsel

11.071 § 2(a), was violated and seeks to establish cause on this basis. See Ex parte Graves, 70
S.W.3d 103, 114 n.45 (Tex. Crim. App. 2002). However, state post-conviction counsel need only
be “competent” at the time of appointment, in terms of qualifications, experience, and abilities.
Id. at 114. Competence refers only to the initial appointment “rather than the final product
of representation.” Id. Here, Ries has not shown that his counsel was not competent at the
time of appointment. His claim of incompetence is based solely on the state habeas petition
his counsel prepared, “the final product of representation.” Therefore, even assuming arguendo
that Graves applied, an issue we expressly decline to reach, Ries has not satisfied the standard
articulated in that case. Ries provides no other basis for excusing this procedural default.

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introduced witness testimony and documentary evidence on mitigation during
the punishment phase of the trial. We first consider this claim.
Ries claims that his trial counsel was ineffective in presenting mitigating
evidence at the penalty phase of his trial. To clarify the scope of this claim, Ries
does not argue that his trial counsel failed to investigate and discover mitigating
evidence that was essential to Ries’s case on punishment. Ries also does not
argue that trial counsel failed to “present” mitigating evidence in the sense that
specific, material mitigating evidence was never placed before the jury. On the
contrary, Ries constructs this claim of ineffective assistance based entirely on
exhibits that were actually admitted into evidence and available for the jury’s
review, including voluminous records from the Texas Child Protective Services
(“CPS”), which were admitted into evidence by agreement of the parties. Ries
argues that trial counsel used these exhibits ineptly, failing to construct a
compelling case for mitigation based on a graphic description of Ries’s abuse-
filled social history. Ries essentially argues that his counsel could have
performed better. Ries also argues that trial counsel’s decision to admit the
large stack of CPS records and to highlight or ignore specific aspects of that
record were not strategic choices to which this court owes any special deference.
However, in an affidavit submitted by Ries’s trial counsel to the Court of
Criminal Appeals, trial counsel summarized the mitigation evidence presented
during the guilt-innocence phase and penalty phase of the trial and stated the
belief that the exhibits and witness testimony “gave sufficient evidence to show
mitigating factors.” As stated in the affidavit, the record contains testimony
about factors that could be considered mitigating, including Ries’s history of
abandonment, neglect, physical and sexual abuse, various adoptions, repeated
placements in foster homes or State facilities, his high intelligence, and his
college enrollment.

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In Strickland, the Supreme Court explained that “strategic choices made
after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” 466 U.S. at 690–91.
Ries challenges whether the decision to admit the stack of CPS records
allegedly without careful consideration of the contents of each exhibit constitutes
a strategic choice. He offers alternative ways, and in his view better ways, in
which his case could have been presented in an apparent effort to show that
counsel’s failure to make better use of the records can only be attributed to
counsel’s ignorance of the record’s contents, not strategy.
However, trial counsel offered testimony on this issue at a state writ
hearing, testimony that undercuts Ries’s allegation that trial counsel’s decision
to admit the voluminous CPS records was not a strategic choice. At the state
writ hearing, trial counsel testified that one reason for admitting the entire
stack of CPS records was to impress upon the jury, through the sheer weight and
volume of the records, Ries’s extensive history as a ward of the State. Trial
counsel further stated that the witnesses he called were able to sufficiently
convey that aspect of mitigating evidence the defense sought foremost to
highlight for the jury: Ries’s troubled childhood. Calling additional witnesses,
trial counsel admitted, might have been counterproductive, resulting in the
introduction of evidence harmful to the defense’s case. Trial counsel further
stated that admitting the entire stack of records was a “gamble,” whereby they
“took the good with the bad.”
In light of this testimony, together with the affidavit submitted by Ries’s
trial counsel, Ries has failed to overcome the strong presumption that his
counsel’s alleged deficiency, admitting the entire stack of CPS records without
developing certain exhibits, falls within the wide range of reasonable

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professional assistance. Indeed, based on the testimony, it appears that the
admission of the records, and the emphasis placed on the individual exhibits,
was—despite Ries’s argument to the contrary—a strategic choice, which under
Strickland renders the choice “virtually unchallengeable.” See Taylor v. Maggio,
727 F.2d 341, 347–48 (5th Cir. 1984) (“[T]he failure to present a particular line
of argument or evidence is presumed to have been the result of strategic choice.”
(emphasis added)).
Ries nonetheless attempts to fit this case within the facts of Williams v.
Taylor, 529 U.S. 362 (2000) and Wiggins v. Smith, 539 U.S. 510 (2003).6 These
cases are distinguishable. Williams and Wiggins both involved counsel’s failure
to introduce relevant mitigating evidence following a failure to investigate that
was not based on reasonable professional judgment. See Wiggins, 539 U.S. at
523 (“[W]e focus on whether the investigation supporting counsel’s decision not
to introduce mitigating evidence of Wiggins’ background was itself reasonable.”);
Williams, 529 U.S. at 395–96 (“[Counsel] failed to conduct an investigation that
would have uncovered extensive records graphically describing Williams’
nightmarish childhood, not because of any strategic calculation but because they
incorrectly thought that state law barred access to such records.”).
Unlike Wiggins and Williams, the failure to investigate relevant social
history is not at issue here. The claim here boils down to a disagreement with
the manner and style in which trial counsel elected to present mitigating
evidence, a choice which appears to have been strategic. See, e.g., Coble, 496
F.3d at 441 (concluding that petitioner’s reliance on Wiggins and Williams failed
where the petitioner was essentially challenging the strategic decisions of
counsel).

6
Although Wiggins was decided after Ries’s conviction became final, Wiggins applies
to the state court’s resolution of Ries’s claims because Wiggins did not announce “new” law, but
merely applied Strickland. Coble v. Quarterman, 496 F.3d 430, 441 n.5 (5th Cir. 2007).

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Again, Ries suggests that counsel’s decision not to elicit testimony
highlighting certain parts of the CPS records was not a strategic choice. Ries
argues that the only explanation for trial counsel’s failure was that trial counsel
did not know what was actually contained within the records. Yet, to support
his allegation that trial counsel essentially ignored aspects of the CPS record,
Ries offers only his view on better methods for presenting the evidence to the
jury. We agree with Ries and the district court that trial counsel might have
done more to highlight particular portions of Ries’s social history in an effort to
elicit more sympathy from the jury based on Ries’s past. However, on this
record, Ries has failed to overcome the strong presumption that counsel’s alleged
deficiency falls within the wide range of reasonable professional assistance. As
such, we cannot conclude that the state court’s resolution of this claim was
objectively unreasonable.
As discussed above, Ries’s claim that his trial counsel was ineffective in
arguing the case for mitigation during closing argument is unexhausted and
procedurally barred. But even assuming that claim were exhausted, it
nonetheless fails. As the Supreme Court explained in Yarborough v. Gentry:
[C]ounsel has wide latitude in deciding how best to represent a
client, and deference to counsel’s tactical decisions in his closing
presentation is particularly important because of the broad range of
legitimate defense strategy at that stage. . . . Judicial review of a
defense attorney’s summation is therefore highly deferential—and
doubly deferential when it is conducted through the lens of federal
habeas.
540 U.S. 1, 5–6 (2003).
The closing argument was a bit unusual in that defense counsel delivered
the closing by speaking directly to Ries. While the closing was hardly a model
of excellence, it did highlight potentially mitigating evidence, touching at various
points on, among other things, Ries’s background of physical and sexual abuse
and history of abandonment. The central theme of the argument, however,

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appears to have been one of acceptance of responsibility. While Ries may now
wish that his trial counsel had presented a different closing argument, “[Ries’s]
desire to have a specific defense theory presented does not amount to ineffective
assistance on federal habeas review.” Coble, 496 F.3d at 437 (citing Johnson v.
Cockrell, 301 F.3d 234, 239 (5th Cir. 2002)). Thus, even assuming that Ries
exhausted this claim, it is without merit.

B
Ries next argues that his trial counsel was ineffective for failing to object
to two statements during the prosecutor’s closing argument, specifically, the
prosecutor’s rebuttal.
First, addressing Ries directly, the prosecutor stated:
I have never asked a jury, Joey, to do something that I can’t do
myself. And on the evidence in this case I can release the poison.
You know it and you deserve to die. That’s why we’re here.
Shortly thereafter, the prosecutor opined:
Why do we have the death penalty? I know some of you on the jury
have thought about the death penalty and why, we as a country and
we as a state, believe it’s important. I can tell you why I think it is.
I believe that when you take a human life, that if you as a society
and you as a group of people, do not value the life long enough to
take a murderer’s life, then you are not going to last very long.
Ries argues that these statements were objectionable under both state and
federal law and that his trial counsel was thus ineffective for failing to object.
In order to show that counsel was deficient for failing to object under the first
prong of Strickland, the objection must have merit. Turner. v. Quarterman, 481
F.3d 292, 298 (5th Cir. 2007).
First, Ries relies on the Supreme Court’s decision in United States v.
Young, 470 U.S. 1 (1985) to support his claim that the prosecutor’s statements
were improper under federal law. Young involved a federal prosecution in which

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the Court applied the plain error doctrine, as embodied in Federal Rule of
Criminal Procedure 52(b), to a prosecutor’s allegedly improper remarks during
summation. Young is an example of the Supreme Court’s broad supervisory
authority to regulate the conduct of federal prosecutors appearing in federal
court. However, Young did not present any federal constitutional issue and
contained no indication that the standards it imposed were binding in any way
on state courts or state prosecutors. As we have explained, “federal courts may
not, in a habeas corpus proceeding, impose the same standards upon state
prosecutors that they apply to federal prosecutors in cases on direct appeal.”
Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th Cir. 1985) (per curiam);
Whittington v. Estelle, 704 F.2d 1418, 1422 (5th Cir. 1983). Because Young does
not apply to state courts, Ries’s trial counsel was not deficient for failing to
assert an objection on the basis of Young. Likewise, Young cannot be used to
challenge the decision of the state habeas court.7

7
There is a line of federal authority addressing federal due process challenges to
statements made during a prosecutor’s summation. See Darden v. Wainwright, 477 U.S. 168,
180 (1986); Caldwell v. Mississippi, 472 U.S. 320, 337–38 (1985); Rogers v. Lynaugh, 848 F.2d
606, 608 (5th Cir. 1988) (explaining this “generic substantive due process violation”). While
the states are free to develop their own standards to govern the conduct of state prosecutors,
the due process clause of the Fourteenth Amendment provides an independent check on a
prosecutor’s comments that “so infected the trial with unfairness as to make the resulting
conviction [or sentence] a denial of due process.” Rogers, 848 F.2d at 608 (quoting Darden, 477
U.S. at 181) (alteration in original); see also Whittington, 704 F.2d at 1422 (noting that while
a federal habeas court may not impose federal supervisory standards on state courts, “we can
and are required to make an independent determination of what is fair under the
Constitution”).
In this case, however, the petitioner has not invoked this line of authority or argued
that the prosecutor’s comments were so egregious as to violate due process. Regardless, while
the prosecutor’s statements may have been dramatic, we cannot conclude that the statements
so infected the trial with unfairness as to make the resulting conviction a denial of due process,
particularly where, as we explain below, the prosecutor’s comments were to some extent
invited by defense counsel’s summation. See Darden, 477 U.S. at 182 (“[T]he idea of ‘invited
response’ is used not to excuse improper comments, but to determine their effect on the trial
as a whole.”). This case is a far cry from Caldwell, for example, where the prosecutor argued
to the jury that its decision was not a final one because the decision could be automatically
reviewed by the state Supreme Court, thus inviting the jury to minimize its sense of
responsibility for determining the appropriateness of death and rendering the death sentence

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We also cannot conclude that trial counsel was ineffective for failing to
object under Texas state law. With respect to the prosecutor’s first statement,
expressing his personal opinion that Ries “deserve[d] to die,” the district court
concluded that this statement was invited by the closing argument of defense
counsel, and therefore, had counsel objected, the objection would have been
overruled as invited error.8 See, e.g., Hannah v. State, 624 S.W.2d 750, 754 (Tex.
App.—Houston [14th Dist.] 1981, writ ref’d) (concluding that prosecutor’s
statement was invited by defense counsel’s argument and therefore the objection
to the statement was properly overruled) (“My job as a prosecutor is to seek
justice. I dismiss cases when there is not sufficient evidence to support what has
occurred.”). The style and structure of defense counsel’s closing argument, a one-
sided conversation with the defendant, invited the prosecutor to employ the
same rhetorical device and speak directly to the defendant. Also, as the district
court noted, defense counsel’s statements such as “I’m going to ask the twelve
people to give you the rest of your life to explore your potential and to use it” and
“I hope you will be given that opportunity” injected—at least to some
extent—defense counsel’s own personal opinion, inviting the prosecutor to do the
same. Finally, the Texas Court of Criminal Appeals has found no reversible
error based on similar statements made by prosecutors in summation. Myers v.
State, 468 S.W.2d 847, 848–49 (Tex. Crim. App. 1971) (“Now, I would be a
charlatan or a hypocrite to ask you to do something that I didn’t feel deep in my
heart was justified, and I wouldn’t ask you to do anything I couldn’t do.”); Lacy
v. State, 374 S.W.2d 244, 245 (Tex. Crim. App. 1964) (“I believe from the
evidence presented here that the Defendant is guilty.”). In light of these
considerations, Ries’s trial counsel was not deficient for failing to object to the

imposed in that case fundamentally unfair. 472 U.S. at 325–26, 341.
8
The state court never expressly ruled on this statement; nonetheless, the district court
deemed the claim exhausted and addressed it on the merits, as do we.

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prosecutor’s first comment. Likewise, because the objection was of questionable
merit, Ries has not shown a reasonable probability that the objection would have
been sustained. Ries’s trial counsel thus was not ineffective for failing to object
to the prosecutor’s first statement.
As to the prosecutor’s second statement (“Why do we have the death
penalty?”), the state court determined under state law that the statement was
proper as a plea for law enforcement. “[I]n our role as a federal habeas court, we
cannot review the correctness of the state habeas court’s interpretation of state
law.” Young v. Dretke, 356 F.3d 616, 628 (5th Cir. 2004). Accepting the state
court’s conclusion based on state law that the objection had no merit, counsel
was not ineffective for failing to make it.
We neither condone nor condemn the prosecutor’s comments, and we take
no position on whether those comments would be proper as a matter of federal
trial practice. However, we conclude that the state court’s determination that
Ries failed to establish ineffective assistance based on trial counsel’s failure to
object to the prosecutor’s comments was not objectively unreasonable.

C
Finally, Ries argues that his appellate counsel was ineffective for failing
to challenge on appeal the trial court’s exclusion of evidence of Ries’s remorse.
The Strickland analysis also applies to claims of ineffective assistance of
appellate counsel. Amador v. Quarterman, 458 F.3d 397, 411 (5th Cir. 2006);
United States v. Reinhart, 357 F.3d 521, 525 (5th Cir. 2004). “Counsel need not
raise every nonfrivolous ground of appeal, but should instead present solid,
meritorious arguments based on directly controlling precedent.” Schaetzle v.

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Cockrell, 343 F.3d 440, 445 (5th Cir. 2003) (internal quotation marks and
alterations omitted).
Ries argues, in essence, that appellate counsel failed to raise a slam dunk
issue on appeal—an issue that was properly preserved, plainly meritorious, and
would have resulted in a reversal of his sentence. We reject Ries’s argument
because we disagree that the issue was properly preserved.
During the guilt-innocence phase of Ries’s trial, the State sought to
introduce a video-taped confession by Ries, in which the State redacted the
apology portion of his confession (that part containing Ries’s expression of
remorse) and several references to extraneous offenses. Defense counsel objected
to redaction of the apology portion, but the trial court overruled the objection,
concluding that it was a self-serving hearsay statement. Ries does not argue in
his opening brief that the redaction of the apology portion was improper for
guilt-innocence purposes.9
Instead, Ries argues that the redaction was improper because the apology
portion of the tape constituted highly relevant and reliable mitigating evidence
that should not have been excluded on the basis of a state hearsay rule. See
Green v. Georgia, 442 U.S. 95, 97 (1979) (per curiam). Ries argues that the
exclusion of this evidence of remorse precluded him from presenting this
relevant mitigating evidence during the penalty phase of his trial. Exacerbating
the issue, Ries points out that at the penalty phase of the trial, during the

9
Ries does, however, seem to challenge the guilt-innocence phase ruling in his reply
brief, arguing that the redacted apology portion of the video also included a statement that
Ries had no intention of killing his victim. Because Ries raises this argument for the first time
in his reply brief, we consider it waived. See United States v. Fields, 483 F.3d 313, 352 n.36
(5th Cir. 2007). In any event, a challenge to the state court’s ruling for guilt-innocence
purposes was not so clearly meritorious as to form a basis for an ineffective assistance of
appellate counsel claim. See, e.g., Allridge v. State, 762 S.W.2d 146, 152–53 (Tex. Cr. App.
1988) (en banc) (concluding that the rule of “completeness,” which applies when other evidence
presented has been incomplete or misleading, did not apply to admit the defendant’s self-
serving hearsay testimony).

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State’s closing argument, the prosecutor relied on portions of Ries’s confession,
while making several references to Ries’s lack of remorse. Ries argues that he
was “hamstrung” by the trial court’s exclusion of the apology portion of his
confession, unable to effectively rebut the prosecutor’s argument about lack of
remorse.
At no point, however, did Ries ever object to the redaction on the grounds
that the district court impermissibly excluded relevant mitigating evidence at
the penalty phase of the trial. Ries also never objected to the prosecutor’s
statements regarding lack of remorse and never sought to introduce the apology
portion during the penalty phase of his trial as mitigating evidence or to rebut
the prosecutor’s statement regarding lack of remorse. As the State points out,
Ries conflates the trial court’s guilt-innocence-redaction ruling with his
argument that the redaction ruling was improper for purposes of the penalty
phase of the trial because it excluded relevant mitigating evidence. Although
Ries preserved an objection to the guilt-innocence redaction ruling, he failed to
present to the trial court his argument that the redaction violated his right to
present mitigating evidence and thus did not clearly preserve any penalty-phase
objection for appeal.10
Because any challenge to the trial court’s guilt-innocence ruling regarding
the redacted apology portion of the confession was of dubious merit, and because
the penalty-phase objection was not clearly preserved, we cannot conclude that
the state’s rejection of Ries’s ineffective assistance of appellate counsel claim for
failing to raise this issue on appeal was objectively unreasonable.

V

10
Ries failed to allege any ineffective assistance of counsel claim based on trial counsel’s
failure to object during the penalty phase of the trial to the redaction of the apology portion of
the confession.

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For these reasons, we AFFIRM the district court’s denial of Ries’s petition
for a writ of habeas corpus.

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