Ruiz v. Collier
MEMORANDUM OPINION AND ORDER granting 17 MOTION for Summary Judgment with Brief in Support, denying 25 MOTION for Evidentiary Hearing, denying 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
IGNACIO RUIZ, TDCJ #1624305,
August 10, 2017
David J. Bradley, Clerk
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
CIVIL ACTION NO. H-16-3282
MEMORANDUM OPINION AND ORDER
State inmate Ignacio Ruiz has filed a Petition for a Writ of
Habeas Corpus By a Person in State Custody
Entry No. 1) seeking relief under 28 U.S.C.
2254 from a murder
conviction that resulted in a life sentence.
The respondent has
(Docket Entry No. 17), along with a copy of
the state court records (Docket Entry Nos. 15-16).
Ruiz has filed
Petitioner's Response to Respondent's Motion for Summary Judgment
(Docket Entry No. 24), and he requests an
evidentiary hearing on one of the issues raised in his Petition
Suggestions in Support, Docket Entry No. 25).
the pleadings, the state court records, and the applicable law, the
court will grant Respondent's Motion and will dismiss this action
for the reasons explained below.
A grand jury returned an indictment against Ruiz in Harris
County cause number 1189825, alleging that Ruiz murdered Rigoberto
Careaga by shooting him with a deadly weapon, a firearm.
the State presented evidence from four eye-witnesses who identified
Ruiz as the man who shot Careaga four times with a
semiautomatic handgun from the passenger side of a vehicle. 2
shooting stemmed from a
confrontation that occurred after Ruiz
exchanged cell phone numbers with a young woman who had been at a
nightclub with several companions. 3
young children, 4 was not
the father of two
involved in the confrontation and was
simply in the wrong place at the wrong time. 5
young woman in the back during the course of
Ruiz shot another
the offense 6 and
attempted to flee while free on bond. 7
Indictment, Docket Entry No. 15-1, p. 12.
Court Reporter's Record, vol. 3, Docket Entry No. 15-6,
pp. 61-62, 72-78, 113-124, 161-62, 190-91, 205-15, 231-39; Court
Reporter's Record, vol. 4, Docket Entry No. 15-17, pp. 21-22, 4146, 50.
Court Reporter's Record, vol. 3, Docket Entry No. 15-6,
pp. 184-91, 205-08, 230-31; Court Reporter's Record, vol. 4, Docket
Entry No. 15-17, pp. 17-23.
pp. 25, 213.
pp. 78-79, 124-34.
Id. at 30-35, 213.
After hearing the evidence, a jury in the 228th District Court
of Harris County, Texas, found Ruiz guilty of murder as charged in
the indictment. 8
Following a separate punishment proceeding, which
included evidence that Ruiz was a gang member who had committed an
assault while out on bond,
the same jury sentenced Ruiz to life
appointed attorney filed
pursuant to Anders v. State of California, 386 U.S. 738 (1967)
"Anders brief"), certifying that there were no non-frivolous issues
to raise . 11
The court of appeals provided Ruiz with a copy of
counsel's brief and allowed him to file a response.
considering counsel's brief and Ruiz' s
See Ruiz v.
response, 12 the court of
appeals agreed that the appeal was "wholly frivolous" and affirmed
the conviction after finding "no reversible error in the record."
the Texas Court of Criminal Appeals summarily
Verdict, Cause No. 1189825, Docket Entry No. 15-1, p. 55;
Docket Sheet, Cause No. 1189825, Docket Entry No. 16-8, p. 93
(reflecting that the jury deliberated for just over an hour) .
Court Reporter's Record,
Docket Entry No.
Judgment of Conviction by Jury, Docket Entry No. 15-1, p. 67.
Brief of Appellant, Docket Entry No. 15-20, p. 7.
Appellant' s Pro Se Response Brief, Docket Entry No. 15-19,
refused Ruiz' s petition for discretionary review.
See Ruiz v.
State, PD-0173-12 (Tex. Crim. App. May 16, 2012).
Ruiz now seeks a federal writ of habeas corpus under 28 U.S.C.
2254 to challenge his conviction. 13
Ruiz raises the following
grounds for relief, which the court has re-ordered for purposes of
Testimony linking him to a cell phone was admitted
in violation of the Confrontation Clause.
Evidence of his gang affiliation was improperly
admitted during the punishment phase of the trial
in violation of his First Amendment right to
"freedom of association."
He was denied effective assistance of counsel
during his trial when his defense counsel failed to
object to the above-referenced violations of the
Confrontation Clause and the First Amendment.
He was denied effective assistance of counsel on
appeal when his appointed attorney filed an Anders
brief and failed to provide him with a copy of that
He was denied due process on direct appeal because
he was not provided with a complete copy of the
exhibits from his trial transcript. 14
These claims were rejected by the Texas Court of Criminal Appeals,
which denied Ruiz' s
state habeas application without a written
order based on detailed findings
Petition, Docket Entry No. 1, p. 2.
Id. at 6-8.
entered by the trial
The respondent moves for summary judgment, arguing that
Ruiz's first two claims are barred by the doctrine of procedural
governing federal habeas corpus standard of review. 16
Standard of Review
To the extent that the petitioner's claims were adjudicated on
the merits in state court, his claims are subject to review under
codified at 28 U.s. c.
2254 (d) .
Under the AEDPA a
federal habeas corpus court may not grant relief unless the state
court's adjudication "resulted in a decision that was contrary to,
or involved an unreasonable application of,
United States [.] "
2254 (d) (1).
decision is deemed contrary to clearly established federal law if
it reaches a
legal conclusion in direct conflict with a
conclusion than the Supreme Court on materially indistinguishable
Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)
(citations omitted); see also Williams v. Taylor, 120 S. Ct. 1495,
To constitute an "unreasonable application of"
Action Taken on Writ No. 85,258-01, Docket Entry No. 16-5, at
1; State's Proposed Findings of Fact, Conclusions of Law, and Order
("Findings and Conclusions"), Docket Entry No. 16-8, pp. 71-78.
Respondent's Motion, Docket Entry No. 17.
clearly established federal law, a state court's holding "must be
objectively unreasonable, not merely wrong; even clear error will
(quoting White v.
satisfy this high bar,
s. Ct. 1697, 1702 (2014))
a habeas petitioner is required to 'show
the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.'"
Id. (quoting Harrington
v. Richter, 131 S. Ct. 770, 786-87 (2011)).
state-court decisions be given the benefit of the doubt.'"
v. Lett, 130 S. Ct. 1855, 1862 (2010)
standard is intentionally "difficult to meet" because it was meant
to bar relitigation of claims already rejected in state proceedings
and to preserve federal habeas review as "a 'guard against extreme
substitute for ordinary error correction through appeal."
131 S. Ct. at 786
(quoting Jackson v. Virginia,
99 S. Ct. 2781,
(Stevens, J., concurring)); see also White, 134
S. Ct. at 1702.
A state court's factual determinations are also entitled to
deference on federal habeas corpus review.
Findings of fact are
2254 (e) (1).
This presumption of correctness extends not only to
express factual findings, but also to the state court's implicit
See Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir.
(citing Summers v. Dretke, 431 F. 3d 861, 876 (5th Cir. 2005);
Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004)).
presents a question of fact,
If a claim
a petitioner cannot obtain federal
habeas relief unless he shows that the state court's denial of
relief "was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding."
2254 (d) (2).
unreasonable 'merely because
(quoting Wood v.
2254 (d) (2)
Brumfield v. Cain, 135 S. Ct.
s. Ct. 841, 849
[a federal court]
accord the state trial court substantial deference."
would have reached a different
conclusion in the first instance.'"
Violations of the Confrontation Clause and the First Amendment
Ruiz argues that the trial court erred by admitting hearsay
(Sergeant John Brooks)
testified that Ruiz's brother,
identified a cell phone linked to the murder as belonging to Ruiz . 17
Petition, Docket Entry No. 1, p. 7; Court Reporter's Record,
vol. 3, Docket Entry No. 15-6, pp. 90, 100.
denied him the right to confront and cross-examine his brother
cell phone's provenance. 18
contends that the prosecution violated his First Amendment right to
freedom of association by introducing irrelevant evidence of his
gang affiliation during the punishment phase of the trial. 19
respondent argues that both of these claims are barred from federal
review by the doctrine of procedural default because Ruiz failed to
preserve error by raising a contemporaneous objection. 20
The contemporaneous objection rule requires that a party must
make a timely,
specific objection to preserve error for appeal.
See TEX. R. APP. P.
33.1(a) (1) (A);
(Tex. Crim. App. 2006).
"The contemporaneous objection
rule requires that the objection be presented to the trial court to
court with an opportunity to prevent any error."
Shelvin v. State,
884 S.W.2d 874,
(citing Rhett v. State, 839 S.W.2d 93, 94 (Tex. Crim.
App. 1992) ) .
Under this rule, "a contemporaneous objection must be
considered by an appellate court.
Barnes v. State, 70 S.W.3d 294,
307 (Tex. App. - Fort Worth 2002, pet. ref'd)
Petition, Docket Entry No. 1, p. 7.
Id. at 8.
Respondent's Motion, Docket Entry No. 17, pp. 9-11.
The record confirms that Ruiz did not raise an objection to the
disputed testimony at trial. 21
Because he did not contemporaneously
preserve error at trial, or raise these issues on direct appeal,
the state habeas corpus court refused to consider Ruiz's claims. 22
"[A federal habeas corpus court] will not review a question of
federal law decided by a state court if the decision of that court
rests on a state law ground that is independent of the federal
Thompson, 111 S. Ct. 2546, 2553 (1991); see also Lee v. Kemna, 122
Ct. 8 7 7
8 8 5 ( 2 0 0 2) .
"To qualify as an 'adequate' procedural
state rule must be
'firmly established and regularly
Walker v. Martin,
131 S. Ct. 1120, 1127-28
(quoting Beard v. Kindler, 130 S. Ct. 612, 617 (2009)).
objection rule constitutes an adequate and independent state ground
that procedurally bars
federal habeas review of a petitioner's
Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999); see
also Allen v. Stephens, 805 F.3d 617,
(5th Cir. 2015).
result, review of Ruiz's Confrontation Clause and First Amendment
Findings and Conclusions, Docket Entry No. 16-8, pp. 76, 77.
Court Reporter' s Record, vol . 3, Docket Entry No.
p. 100; Court Reporter's Record, vol. 5, Docket Entry No.
pp. 10-19, 21.
claims are precluded unless Ruiz fits within an exception to the
If a petitioner has committed a procedural default federal
review is available only if he can demonstrate:
(1) "cause for the default and actual prejudice as a result of the
alleged violation of federal law," or (2) "that failure to consider
the claims will result in a fundamental miscarriage of justice."
To establish a
petitioner must provide
the court with
Kuhlmann v. Wilson, 106 S. Ct. 2616, 2627 (1986); see
also Schlup v. Delo, 115
s. Ct. 851, 861 (1995) (describing actual
innocence as a "gateway through which a habeas petitioner must pass
to have his otherwise barred constitutional claim considered on the
(citation omitted) .
Because Ruiz makes no showing of
review of his defaulted claims will depend on
whether he can demonstrate the requisite cause and prejudice.
Coleman, 111 S. Ct. at 2565.
procedural default should be excused because his criminal defense
constitute cause to excuse a procedural default.
Petitioner's Response, Docket Entry No. 24, pp. 5-11.
See Edwards v.
Murray v. Carrier, 106 S. Ct. 2639, 2645-46 (1986)).
"Not just any
assistance must have been so ineffective as to violate the Federal
Carpenter, 120 S. Ct. at 1591.
"In other words,
procedural default of some other constitutional claim is itself an
independent constitutional claim."
(emphasis in original).
For reasons set forth in more detail below,
Ruiz does not
demonstrate that his defense attorney was deficient for failing to
object to the evidence at issue and he does not otherwise establish
that he was denied effective assistance of counsel in violation of
claim, Ruiz does not establish cause or actual prejudice that would
excuse his procedural default.
Therefore, his claims alleging a
violation of the Confrontation Clause and the First Amendment are
procedurally barred from federal review.
Ineffective Assistance of Counsel at Trial
counsel at his trial because his defense attorney failed to object
Confrontation Clause or to evidence of his gang affiliation that
was admitted during the punishment phase of the trial in violation
of his rights under the First Amendment. 24
Petition, Docket Entry No. 1, p. 6.
After considering an
affidavit from Ruiz's trial attorney, Corey Gomel, the state habeas
concluding that he failed to show that counsel was deficient or
that, but for any deficiency,
the result of his proceeding would
have been different. 25
As the state habeas corpus court correctly noted, claims for
ineffective assistance of counsel are governed by the standard
found in Strickland v.
prevail under the Strickland standard a defendant must demonstrate
(1) that his counsel's performance was deficient and (2) that the
"Unless a defendant makes both showings, it cannot be said that the
conviction . . . resulted from a breakdown in the adversary process
that renders the result unreliable."
"To satisfy the deficient performance prong,
must show that counsel's representation fell below an objective
standard of reasonableness.'"
(5th Cir. 2014)
Hoffman v. Cain, 752 F.3d 430, 440
(quoting Strickland, 104
s. Ct. at 2064) .
a "highly deferential" inquiry; "[t]here is 'a strong presumption
that counsel's conduct falls within the wide range of reasonable
(quoting Strickland, 104 S. Ct. at
Findings and Conclusions, Docket Entry No. 16-8,
(citing Strickland v. Washington, 104 S. Ct. 2052 (1984)).
To satisfy the prejudice prong,
that there is a
"[t]he defendant must show
reasonable probability that,
but for counsel's
unprofessional errors, the result of the proceeding would have been
Strickland, 466 U.S. at 694.
"affirmatively prove prejudice."
A habeas petitioner must
Id. at 693.
A petitioner cannot
satisfy the second prong of Strickland with mere speculation and
See Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir.
Conclusory allegations are
insufficient to demonstrate
either deficient performance or actual prejudice.
See Day v.
Quarterman, 566 F.3d 527, 540-41 (5th Cir. 2009); see also Lincecum
v. Collins, 958 F.2d 1271, 1279-80 (5th Cir. 1992)
(stating that an
ineffectiveness claim based on speculation or conclusional rhetoric
will not warrant relief) .
Because the petitioner's ineffective-assistance claims were
rejected by the state court, the issue is not whether this court
"'believes the state court's determination' under the Strickland
substantially higher threshold. '"
Mirzayance, 129 S. Ct. 1411, 1420 (2009)
addition, "because the Strickland standard is a general standard,
a state court has even more latitude to reasonably determine that
a defendant has not satisfied that standard."
When applied in
tandem with the highly deferential standard found in 28 U.S. C.
Richter, 131 S. Ct. at 788 (emphasizing that the standards created
by Strickland and
are both "highly deferential,"
so" when applied in tandem)
omitted); Beatty v.
(citations and quotations
759 F.3d 455,
Failure to Raise a Confrontation Clause Objection
Ruiz contends that his counsel was deficient because he failed
to object to testimony by Detective John Brooks about an out-ofcourt statement made by Ruiz's brother,
ownership of a cell phone linked to the murder. 26
that he learned during his investigation that the man who shot and
killed Rigoberto Careaga had entered his cell phone number into a
phone belonging to a young woman named Celia Mora on the night of
obtaining a court order for subscriber information regarding the
Brooks learned that the number was registered to
eliminating Antonio Ruiz as a suspect Antonio told him that he had
purchased the cell phone associated with that number and given it
to his brother, Ignacio Ruiz.
At trial Cecilia Mora identified
Petition, Docket Entry No. 1, pp. 7, 8-9.
pp. 78-79, 88-89.
Id. at 89-90.
Id. at 100.
Ignacio Ruiz as the man who handed her his cell phone on the night
of the murder so that she could enter her number into the phone, and
she identified Ignacio Ruiz as the man who shot Rigoberto Careaga. 30
The petitioner appears
possessed the cell phone on the night of the murder would not have
been admitted if his counsel had raised a
objection to Brooks's testimony about what Anthony Ruiz told him. 31
In response to this allegation Ruiz's defense attorney explained
that he did not object because the State could have proved that
introducing Ruiz's own videotaped statement to police in which he
admitted that his brother purchased the phone and gave it to him to
By electing not to object to Detective Brooks's testimony,
defense counsel hoped to be able to prevent the State from playing
videotaped statement before the
which was not
Ruiz's "best interests" because it would have made clear from his
manner of communicating that he was not "sympathetic. " 33
that evidence of the cell phone's ownership was coming in one way
or another, defense counsel decided not to highlight or bring the
pp. 186-87, 188-91.
Petition, Docket Entry No. 1, p. 6; Petitioner's Response,
Docket Entry No. 24, p. 5.
Affidavit of Corey Gomel
No. 16-8, pp. 56-57.
("Gomel Affidavit"), Docket Entry
Id. at 56.
jury's attention to this
it was being admitted by
objecting during Detective Brooks's testimony. 34 The state habeas
corpus court credited defense counsel's explanation and concluded
not to object was
trial strategy in light of the totality of the circumstances." 35
Strategic decisions made by counsel during the course of trial
are entitled to substantial deference in the hindsight of federal
See Strickland, 466 U.S. at 689 (emphasizing that
deferential" and that "every effort [must] be made to eliminate the
distorting effects of hindsight").
A federal habeas corpus court
may not find ineffective assistance of counsel merely because it
disagrees with counsel's chosen trial strategy.
Crane v. Johnson,
informed decision on trial tactics and strategy cannot be the basis
for constitutionally ineffective assistance of counsel unless it is
so ill chosen that
the entire trial with obvious
116 F. 3d 1115,
1997); Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)
Fitzgerald v. Estelle,
505 F.2d 1334
(5th Cir. 1975); Daniels v.
Maggio, 669 F.2d 1075 (5th Cir. 1982)).
Ruiz does not dispute that the State had other, more damaging
evidence that would have established his possession of the cell
Id. at 56-57.
Findings and Conclusions, Docket Entry No. 16-8, p. 76.
Under these circumstances Ruiz has not shown that his
defense counsel's trial strategy was unsound or that, but for his
attorney's failure to object, evidence showing that he possessed
the cell phone on the night of the murder would not have been
performance or to show that he was prejudiced by his counsel's
failure to raise an objection under the Confrontation Clause.
court's decision was unreasonable under the doubly deferential
standard that applies on federal habeas review.
Therefore, Ruiz is
not entitled to relief on this claim.
Failure to Raise a First Amendment Objection
Ruiz contends that his counsel was deficient because he failed
to object to evidence of his gang affiliation, which was admitted
during the punishment phase of the trial in violation of the First
discussions with his client about
"appropriate behavior in the
courtroom," Ruiz made "hand gestures" during trial that could be
interpreted as "gang related" when looking at "friends of his" who
Petition, Docket Entry No. 1, pp.
Response, Docket Entry No. 24, pp. 6-9.
Gomel Affidavit, Docket Entry No. 16-8, p. 57.
were watching the proceedings. 38
The state habeas corpus court,
which also presided over the trial, found as a matter of fact that
Ruiz "made hand gestures that were or could be interpreted as gang
related during the course of the trial.n 39
Based on this finding,
the state habeas corpus court concluded that the attorney's failure
to object to the evidence of Ruiz' s
punishment stage of trial,
and the applicant's behavior in the
courtroom during trial increased the relevancy of this evidence.n 40
Arguing that his gang affiliation was irrelevant and protected
by the First Amendment freedom of association, Ruiz cites Dawson v.
Delaware, 112 S. Ct. 1093 (1992), in support of his contention that
his counsel failed to make a valid objection to this evidence. 41
In Dawson the Supreme Court recognized that "the Constitution does
not erect a per se barrier to the admission of evidence concerning
one's beliefs and associations at sentencing simply because those
beliefs and associations are protected by the First Amendment.
Id. at 1097.
The Court held, however, that admission of a narrowly
worded stipulation about the defendant's membership in a racist
prison gang violated the First Amendment because the limited nature
Findings and Conclusions, Docket Entry No. 16-8, pp. 73-74.
Id. at 76 (citing Tex. Code Crim. Proc. Ann. art. 37.07
(Vernon Supp. 2012)).
Petitioner's Response, Docket Entry No. 24, p. 6.
of the evidence lacked context and was "totally without relevance
to [the defendant's] sentencing proceeding."
circumstance, the Court concluded that the stipulation should have
been excluded because it was offered for no other reason than to
establish the defendant's "abstract beliefs" and association with
other like-minded individuals, which violated the First Amendment.
Id. at 1098.
In contrast to the facts of Dawson, the record shows that the
State presented evidence during the punishment phase of Ruiz' s
trial showing that Ruiz was a documented member of the "Fourth Ward
gang" and that he committed other violent acts as a member of that
the State presented evidence that Ruiz
committed an assault that caused serious bodily injuries while free
accompanied during that incident by at least one other documented
Fourth Ward gang
(Victor Sanchez) ,
who was also
Although the State did not present evidence tending to
show that the Fourth Ward gang was known to engage in any specific
the testimony was admitted in a context that
linked Ruiz's gang affiliation to the underlying violent offense
Court Reporter' s
Id. at 16-17.
Docket Entry No.
and in such a way that it was relevant for purposes of sentencing.
Based on this record,
Ruiz fails to show that the evidence was
inadmissible under Dawson.
Ruiz does not dispute that he was a member of the Fourth Ward
gang; and he has made no attempt to refute the state habeas corpus
court's finding that he made gang-related gestures in court, which
made evidence of his gang affiliation relevant. 44
The state habeas
corpus court's finding of fact on this issue is presumed correct
for purposes of federal review.
See 28 U.S.C.
presumption of correctness found in
2254 (e) (1)
strong" where, as here, "the state habeas court and the trial court
are one in the same."
Mays v. Stephens,
(citing Clark v. Johnson,
757 F.3d 211,
202 F.3d 760,
2000)); Boyle v. Johnson, 93 F.3d 180, 186 (5th Cir. 1996)
May v. Collins,
955 F.2d 299, 314
(5th Cir. 1992)).
circumstances Ruiz has not shown that the evidence was irrelevant
therefore not shown that his attorney had a valid objection to make
under the First Amendment.
Ruiz has not otherwise shown that the
state habeas corpus court's decision was unreasonable or contrary
to clearly established Supreme Court precedent.
Ruiz is thus not
entitled to relief on this claim.
Findings and Conclusions, Docket Entry
(citing Tex. Code Crim. Proc. Ann. art. 37.07
No. 16-8, p. 76
3 (Vernon Supp.
Ineffective Assistance of Counsel on Appeal
counsel on direct appeal because his attorney filed an Anders brief
and failed to provide him with a copy of that brief. 45
habeas corpus court rejected this claim after reviewing copies of
the Anders brief, Ruiz's prose brief in response, and the opinion
from the court of appeals, which concluded that Ruiz's appeal was
A claim of ineffective assistance on appeal is governed by the
Strickland standard, which requires the defendant to establish both
constitutionally deficient performance and actual prejudice.
establish that appellate counsel's performance was deficient in the
context of an appeal, the defendant must show that his attorney was
objectively unreasonable in failing to find arguable
appeal- that is, that counsel unreasonably failed to discover nonfrivolous issues and raise them.
Smith v. Robbins, 120 S. Ct. 746,
If the defendant succeeds in such a showing, he must
then establish actual prejudice by demonstrating a
probability" that, but for his counsel's deficient performance, "he
would have prevailed on his appeal."
The right to counsel on appeal "does not include the right to
bring a frivolous appeal and, concomitantly, does not include the
Petition, Docket Entry No. 1, p. 7; Petitioner's Response,
Docket Entry No. 24, pp. 12-18.
Findings and Conclusions,
Docket Entry No.
right to counsel for bringing a frivolous appeal."
s. Ct. at 760.
"Appellate counsel is not deficient for not raising
every non-frivolous issue on appeal."
United States v. Reinhart,
Williamson, 183 F.3d 458, 462 (5th Cir. 2000)).
"To the contrary,
counsel's failure to raise an issue on appeal will be considered
deficient performance only when that decision 'fall[s]
requires counsel 'to research relevant facts and law, or make an
informed decision that certain avenues will not prove fruitful.'"
"'Solid, meritorious arguments based on directly controlling
To the extent that Ruiz faults his appellate attorney for
filing an Anders brief, Ruiz fails to show that his attorney was
deficient because he does not identify a non-frivolous issue for
appeal that his attorney unreasonably failed to raise.
that his appellate counsel failed to provide him with a copy of the
Anders brief, but Ruiz does not dispute that the court of appeals
provided him with a copy of the Anders brief and advised him of his
right to file a pro se response. 47
Ruiz availed himself of that
Ruiz requests an evidentiary hearing and review of prison
mail records to establish that his counsel did not provide him with
a copy of the Anders brief.
See Petitioner's Request for an
Evidentiary Hearing, Docket Entry No. 25, pp. 1-4.
(continued ... )
right. 48 Although Ruiz argues that appellate counsel abandoned him,
constructively denying him the right to counsel, 49 review of the
Anders brief filed on Ruiz's behalf shows that counsel summarized
record and proposed one
overwhelming evidence against Ruiz, the record does not establish
that his appellate attorney abandoned him by choosing to raise only
one proposed issue on appeal or that doing so was tantamount to the
constructive denial of counsel. 51
Because Ruiz does not otherwise
frivolous claim or that the result of his appeal would have been
different but for his counsel's deficient performance, Ruiz does
( • • • continued)
does not dispute that he eventually received a copy of the Anders
brief and was advised of his right to file a pro se response, an
evidentiary hearing is unnecessary. Ruiz's request will therefore
Appellant's Pro Se Response Brief, Docket Entry No. 15-19,
Petition, Docket Entry No. 1, p.
Docket Entry No. 24, pp. 12-18.
7; Petitioner's Response,
Brief of Appellant, Docket Entry No. 15-20, pp. 1-26.
As a result, the authority that Ruiz relies upon is
See Petitioner's Response, Docket Entry No. 24,
pp. 14-16 (citing Penson v. Ohio, 109 S. Ct. 346, 350-51 (1988)
(finding that the defendant was constructively denied counsel when
his appellate attorney was granted leave to withdraw under
procedures that did not comport with Anders); and Harris v. Day,
226 F.3d 361, 364-65 (5th Cir. 2000) (finding attorney abandonment
where counsel submitted only an "errors patent" brief that made no
effort to point to any arguable issues for appeal)).
not demonstrate that he was denied effective assistance of counsel
on appeal or that the state court's decision to reject this claim
Accordingly, Ruiz is not entitled to relief on
Due Process on Appeal
Finally, Ruiz contends that he was denied due process during
his direct appeal because although he was provided a copy of his
state court trial transcript to use in preparing a response to his
allege facts showing what claim he would have presented on appeal
if he had been afforded access to these exhibits.
that Ruiz was prevented from raising a
Absent a showing
valid claim because he
lacked access to the exhibits, his claim is conclusory and does not
See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir.
(emphasizing that "mere conclusory allegations do not raise
Because Ruiz has failed to establish a valid claim for relief,
Respondent's Motion for Summary Judgment will be granted and the
Petition will be denied.
Petition, Docket Entry No. 1, p. 8; Petitioner's Response,
Docket Entry No. 24, p. 19 (identifying State's Exhibits 55-92 and
three defense exhibits as missing from the state court record that
Ruiz received) .
Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when
certificate of appealability will not issue unless the petitioner
"a substantial showing of the denial of a
which requires a petitioner to
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
controlling standard this requires a petitioner to show "'that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or that the issues presented were "adequate to deserve encouragement to proceed further."'"
1029, 1039 (2003).
Where denial of relief is based on procedural
grounds, the petitioner must show not only that "jurists of reason
would find it debatable whether the petition states a valid claim
of the denial of a constitutional right," but also that they "would
find it debatable whether the district court was correct in its
Slack, 120 S. Ct. at 1604.
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
211 F.3d 895,
careful review of the pleadings and the applicable law, the court
concludes that reasonable jurists would not find the assessment of
petitioner has not demonstrated that his claims could be resolved
in a different manner,
a certificate of appealability will not
Conclusion and Order
The court ORDERS as follows:
Respondent's Motion for Summary Judgment
Entry No. 17) is GRANTED.
Ruiz's Petition for a Writ of Habeas Corpus By a
Person in State Custody (Docket Entry No. 1) is
DENIED, and this action will be dismissed with
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this lOth day of August, 2017.
UNITED STATES DISTRICT JUDGE
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