Ruiz v. Collier

Filing 26

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

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

IGNACIO RUIZ, TDCJ #1624305,

August 10, 2017
David J. Bradley, Clerk

§
§
§
§
§

Petitioner,
V.

§
§
§
§
§
§
§

LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.

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

("Petition")

Entry No. 1) seeking relief under 28 U.S.C.

§

(Docket

2254 from a murder

conviction that resulted in a life sentence.

The respondent has

filed

Brief

a

Motion

for

("Respondent's Motion")

Summary

Judgment

with

in

Support

(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
("Petitioner's Response")

(Docket Entry No. 24), and he requests an

evidentiary hearing on one of the issues raised in his Petition
(Petitioner's

Request

for

an

Evidentiary

Suggestions in Support, Docket Entry No. 25).

Hearing

with

His

After considering

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.

I.

Background

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.

1

At trial

the State presented evidence from four eye-witnesses who identified
Ruiz as the man who shot Careaga four times with a

.40 caliber

semiautomatic handgun from the passenger side of a vehicle. 2
shooting stemmed from a

The

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

Careaga,

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

1

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.
2

3

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.
4

Court Reporter's
pp. 25, 213.

Record,

vol.

3'

Docket

Entry No.

15-6,

Reporter's

Record,

vol.

4'

Docket

Entry No.

15-7,

Court Reporter's
pp. 78-79, 124-34.

Record,

vol.

3'

Docket

Entry No.

15-6,

5

6

Id. at 30-35, 213.

Court
pp. 46-48.
7

-2-

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,

9

the same jury sentenced Ruiz to life

imprisonment. 10
On direct

appeal

Ruiz' s

appointed attorney filed

a

brief

pursuant to Anders v. State of California, 386 U.S. 738 (1967)

(an

"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.
State,

No.

Houston

14-10-00122-CR,

[14th

Dist.]

Jan.

2012
10,

WL

50610,

2012)

considering counsel's brief and Ruiz' s

at

(per

*1

See Ruiz v.
(Tex.

curiam) .

App.
After

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."
Id.

Thereafter,

the Texas Court of Criminal Appeals summarily

8

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) .
9

Court Reporter's Record,
pp. 10-19.

vol.

5,

Docket Entry No.

15-18,

10

Judgment of Conviction by Jury, Docket Entry No. 15-1, p. 67.

11

Brief of Appellant, Docket Entry No. 15-20, p. 7.

12

Appellant' s Pro Se Response Brief, Docket Entry No. 15-19,
pp. 1-29.
-3-

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
analysis:
1.

Testimony linking him to a cell phone was admitted
in violation of the Confrontation Clause.

2.

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."

3.

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.

4.

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
brief.

5.

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

of

fact

13

Petition, Docket Entry No. 1, p. 2.

14

Id. at 6-8.
-4-

entered by the trial

court. 15

The respondent moves for summary judgment, arguing that

Ruiz's first two claims are barred by the doctrine of procedural
default

and

that

his

remaining

claims

lack

merit

under

the

governing federal habeas corpus standard of review. 16
II.

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
the

Antiterrorism

( "AEDPA"),

and

Effective

codified at 28 U.s. c.

Death
§

Penalty

2254 (d) .

Act

of

1996

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,
Federal

law,

as

United States [.] "

determined
28

u.s.c.

by

the

clearly established

Supreme

2254 (d) (1).

§

Court

of

"A state

the

court's

decision is deemed contrary to clearly established federal law if
it reaches a
decision

of

legal conclusion in direct conflict with a
the

Supreme

Court

or

if

it

reaches

a

prior

different

conclusion than the Supreme Court on materially indistinguishable
facts."

Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)

(citations omitted); see also Williams v. Taylor, 120 S. Ct. 1495,
1519-20

(2002).

To constitute an "unreasonable application of"

15

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.
16

Respondent's Motion, Docket Entry No. 17.
-5-

clearly established federal law, a state court's holding "must be
objectively unreasonable, not merely wrong; even clear error will
not

suffice."

Woods v.

(quoting White v.

Woodall,

satisfy this high bar,
that

Donald,
134

135

S.

Ct.

1372,

1376

(2015)

s. Ct. 1697, 1702 (2014))

"To

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)).
The
evaluating

AEDPA

"imposes

state-court

a

'highly

deferential

rulings,'

[which]

standard
'demands

state-court decisions be given the benefit of the doubt.'"
v. Lett, 130 S. Ct. 1855, 1862 (2010)

for
that

Renico

(citations omitted).

This

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
malfunctions

in

the

state

criminal

justice

systems,'

substitute for ordinary error correction through appeal."
131 S. Ct. at 786
2796, n.5

(1979)

(quoting Jackson v. Virginia,

not

a

Richter,

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.
"presumed

to

be

correct"

unless
-6-

the

Findings of fact are

petitioner

rebuts

those

findings
§

with

2254 (e) (1).

"clear

and

convincing

evidence."

28

u.s.c.

This presumption of correctness extends not only to

express factual findings, but also to the state court's implicit
findings.
2006)

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."

u.s.c.

§

2254 (d) (2).

characterize

these

A federal

habeas

factual

state-court

unreasonable 'merely because

[it]

2277

(2010)).

(2015)

(quoting Wood v.

"Instead,

§

2254 (d) (2)

court

determinations

A.

as

Brumfield v. Cain, 135 S. Ct.
Allen,

130

requires that

s. Ct. 841, 849
[a federal court]

accord the state trial court substantial deference."
III.

"may not

would have reached a different

conclusion in the first instance.'"
2269,

corpus

28

Id.

Discussion

Violations of the Confrontation Clause and the First Amendment

Ruiz argues that the trial court erred by admitting hearsay
evidence

during

the

(Sergeant John Brooks)

State's

case-in-chief

when

a

testified that Ruiz's brother,

detective
Antonio,

identified a cell phone linked to the murder as belonging to Ruiz . 17
17

Petition, Docket Entry No. 1, p. 7; Court Reporter's Record,
vol. 3, Docket Entry No. 15-6, pp. 90, 100.
-7-

Ruiz

argues

that

the

admission of

this

out-of-court

statement

denied him the right to confront and cross-examine his brother
about

cell phone's provenance. 18

the

In a

separate claim,

Ruiz

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

The

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.
772,

775

33.1(a) (1) (A);

(Tex. Crim. App. 2006).

Buchanan v.

State,

207 S.W.3d

"The contemporaneous objection

rule requires that the objection be presented to the trial court to
provide

that

court with an opportunity to prevent any error."

Shelvin v. State,
pet. ref'd)

884 S.W.2d 874,

876

(Tex. App.

Austin 1994,

(citing Rhett v. State, 839 S.W.2d 93, 94 (Tex. Crim.

App. 1992) ) .

Under this rule, "a contemporaneous objection must be

made

adverse

and

an

ruling

obtained"

considered by an appellate court.

before

an

issue

be

Barnes v. State, 70 S.W.3d 294,

307 (Tex. App. - Fort Worth 2002, pet. ref'd)

(citation omitted).

18

Petition, Docket Entry No. 1, p. 7.

19

Id. at 8.

20

Respondent's Motion, Docket Entry No. 17, pp. 9-11.
-8-

may

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
Ruiz

therefore

committed

a

default

based

on

a

state

court

procedural rule.
"[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
question

and

adequate

to

support

the

judgment."

Coleman

v.

Thompson, 111 S. Ct. 2546, 2553 (1991); see also Lee v. Kemna, 122

s.

Ct. 8 7 7

ground,

a

I

8 8 5 ( 2 0 0 2) .

"To qualify as an 'adequate' procedural

state rule must be

followed[.]'"

'firmly established and regularly

Walker v. Martin,

131 S. Ct. 1120, 1127-28

(quoting Beard v. Kindler, 130 S. Ct. 612, 617 (2009)).
Circuit

"has

consistently held

that

the

Texas

(2011)

The Fifth

contemporaneous

objection rule constitutes an adequate and independent state ground
that procedurally bars
claims."

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,

635

(5th Cir. 2015).

As a

result, review of Ruiz's Confrontation Clause and First Amendment

21

15-6,
15-8,

22

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.

-9-

claims are precluded unless Ruiz fits within an exception to the
procedural bar.
If a petitioner has committed a procedural default federal
habeas corpus

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."
Coleman,

111 S.

carriage of
evidence

at 2565.

justice,

that

innocence."

Ct.

would

a

To establish a

fundamental mis-

petitioner must provide

support

a

"colorable

the court with

showing

of

factual

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
merits")

(citation omitted) .

actual innocence,

Because Ruiz makes no showing of

review of his defaulted claims will depend on

whether he can demonstrate the requisite cause and prejudice.

See

Coleman, 111 S. Ct. at 2565.
In

an

effort

to

establish

cause,

Ruiz

argues

that

his

procedural default should be excused because his criminal defense
counsel

was

ineffective

in

failing

to

testimony. 23

Ineffective

assistance

of

circumstances,

23

object
counsel

to

the
may,

disputed
in

some

constitute cause to excuse a procedural default.

Petitioner's Response, Docket Entry No. 24, pp. 5-11.
-10-

See Edwards v.

Carpenter,

120 S.

Ct.

1587,

1591

(2000)

Murray v. Carrier, 106 S. Ct. 2639, 2645-46 (1986)).
deficiency

in

counsel's

performance

will

do,

(citing

"Not just any
however;

the

assistance must have been so ineffective as to violate the Federal
Constitution."
ineffective

Carpenter, 120 S. Ct. at 1591.

assistance

adequate

to

"In other words,

establish

cause

for

the

procedural default of some other constitutional claim is itself an
independent constitutional claim."

Id.

(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
the

Constitution.

Absent

a

meritorious

ineffective-assistance

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.
B.

Ineffective Assistance of Counsel at Trial

Ruiz

contends

that

he

was

denied effective

assistance of

counsel at his trial because his defense attorney failed to object
to

hearsay

evidence

that

was

admitted

in

violation

of

the

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

24

Petition, Docket Entry No. 1, p. 6.
-11-

After considering an

affidavit from Ruiz's trial attorney, Corey Gomel, the state habeas
corpus

court

rejected

Ruiz's

ineffective-assistance

claims,

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.

Washington,

104 S.

Ct.

2052

(1984).

To

prevail under the Strickland standard a defendant must demonstrate
(1) that his counsel's performance was deficient and (2) that the
deficient

performance

prejudiced

the

defense.

Id.

at

2064.

"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."

Id.

"To satisfy the deficient performance prong,

'the defendant

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) .

This is

a "highly deferential" inquiry; "[t]here is 'a strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance.'"

Id.

(quoting Strickland, 104 S. Ct. at

2065) .

25

Findings and Conclusions, Docket Entry No. 16-8,
(citing Strickland v. Washington, 104 S. Ct. 2052 (1984)).
-12-

p.

75

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
different."

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
conjecture.
1992) .

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
standard

'was

unreasonable -

incorrect
a

but

whether

that

determination

substantially higher threshold. '"

Mirzayance, 129 S. Ct. 1411, 1420 (2009)

was

Knowles v.

(quotation omitted).

In

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."

Id.

When applied in

tandem with the highly deferential standard found in 28 U.S. C.
§

2254 (d),

deferential"

review

of

on habeas

ineffective-assistance
corpus

review.
-13-

Id.

claims
at

is

1413;

"doubly
see

also

Richter, 131 S. Ct. at 788 (emphasizing that the standards created
by Strickland and
"'doubly'

§

2254 (d)

are both "highly deferential,"

so" when applied in tandem)

omitted); Beatty v.

Stephens,

and

(citations and quotations

759 F.3d 455,

463

(5th Cir.

2014)

(same) .
1.

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,

Antonio,

ownership of a cell phone linked to the murder. 26

concerning the
Brooks testified

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
the

murder

because

the

man

wanted

her

to

call

him. 27

After

obtaining a court order for subscriber information regarding the
phone number,
Antonio

Ruiz.

Brooks learned that the number was registered to
28

Brooks

testified

that

during

the

process

of

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.

26

29

At trial Cecilia Mora identified

Petition, Docket Entry No. 1, pp. 7, 8-9.

27

Court Reporter's
pp. 78-79, 88-89.
28

vol.

Id. at 89-90.

29

Record,

Id. at 100.
-14-

3,

Docket

Entry No.

15-6,

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

to

claim that

evidence

showing he

possessed the cell phone on the night of the murder would not have
been admitted if his counsel had raised a

Confrontation Clause

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
Ruiz

possessed

the

cell

phone

on

the

night

of

the

murder by

introducing Ruiz's own videotaped statement to police in which he
admitted that his brother purchased the phone and gave it to him to
use. 32

By electing not to object to Detective Brooks's testimony,

defense counsel hoped to be able to prevent the State from playing
Ruiz' s

videotaped statement before the

jury,

which was not

in

Ruiz's "best interests" because it would have made clear from his
manner of communicating that he was not "sympathetic. " 33

Concluding

that evidence of the cell phone's ownership was coming in one way
or another, defense counsel decided not to highlight or bring the

3

°Court Reporter's
pp. 186-87, 188-91.

Record,

vol.

3,

Docket

Entry No.

15-6,

31

Petition, Docket Entry No. 1, p. 6; Petitioner's Response,
Docket Entry No. 24, p. 5.
32

Affidavit of Corey Gomel
No. 16-8, pp. 56-57.
33

("Gomel Affidavit"), Docket Entry

Id. at 56.
-15-

jury's attention to this

evidence as

it was being admitted by

objecting during Detective Brooks's testimony. 34 The state habeas
corpus court credited defense counsel's explanation and concluded
that his

"professional decision"

not to object was

"reasonable

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
habeas review.
"[j] udicial

See Strickland, 466 U.S. at 689 (emphasizing that

scrutiny

of

counsel's

performance

must

be

highly

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.
178

F.3d 309,

312

(5th Cir.

1999).

Thus,

Crane v. Johnson,
" [a]

conscious and

informed decision on trial tactics and strategy cannot be the basis
for constitutionally ineffective assistance of counsel unless it is
so ill chosen that
unfairness."

it permeates

Green v.

Johnson,

the entire trial with obvious
116 F. 3d 1115,

1122

(5th Cir.

1997); Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)
Fitzgerald v. Estelle,

505 F.2d 1334

(citing

(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

34

Id. at 56-57.

35

Findings and Conclusions, Docket Entry No. 16-8, p. 76.
-16-

phone.

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
admitted.

As

a

result,

Ruiz

fails

to

demonstrate

deficient

performance or to show that he was prejudiced by his counsel's
failure to raise an objection under the Confrontation Clause.
importantly,

Ruiz

fails

to

show

that

the

state

habeas

More
corpus

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.
2.

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
Amendment

right

concedes

that

believed

it

he

to

freedom

did

would

be

not

of

association. 36

object

futile.

37

discussions with his client about

to

this

He

Ruiz' s

evidence

explained

attorney

because

that

he

despite

"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

36

Petition, Docket Entry No. 1, pp.
Response, Docket Entry No. 24, pp. 6-9.
37

7,

10-11;

Gomel Affidavit, Docket Entry No. 16-8, p. 57.
-17-

Petitioner's

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

gang affiliation

deficient

was

conduct,

as

such evidence

punishment stage of trial,

admissible

"was not

during

the

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.

n

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

3aid.
39

Findings and Conclusions, Docket Entry No. 16-8, pp. 73-74.

40

Id. at 76 (citing Tex. Code Crim. Proc. Ann. art. 37.07
(Vernon Supp. 2012)).
41

Petitioner's Response, Docket Entry No. 24, p. 6.
-18-

§

3

of the evidence lacked context and was "totally without relevance
to [the defendant's] sentencing proceeding."
linking

the

defendant's

gang

Id.

affiliation

to

Without evidence
an

aggravating

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
gang. 42

In particular,

the State presented evidence that Ruiz

committed an assault that caused serious bodily injuries while free
on bond

for

the murder

charges

against

him,

and

that

he

was

accompanied during that incident by at least one other documented
member of
present

the

with

Careaga. 43

Fourth Ward gang
Ruiz

on

the

(Victor Sanchez) ,

night

he

shot

and

who was also

killed Rigoberto

Although the State did not present evidence tending to

show that the Fourth Ward gang was known to engage in any specific
criminal activity,

the testimony was admitted in a context that

linked Ruiz's gang affiliation to the underlying violent offense

42

Court Reporter' s
pp. 10-13.
43

Record,

vol .

Id. at 16-17.
-19-

5,

Docket Entry No.

15-8,

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).

§

2254 (e) (1)

The

is "especially

strong" where, as here, "the state habeas court and the trial court
are one in the same."
Cir. 2014)

Mays v. Stephens,

(citing Clark v. Johnson,

757 F.3d 211,

202 F.3d 760,

764

214

(5th Cir.

2000)); Boyle v. Johnson, 93 F.3d 180, 186 (5th Cir. 1996)
May v. Collins,

955 F.2d 299, 314

(5th Cir. 1992)).

(5th

(citing

Under these

circumstances Ruiz has not shown that the evidence was irrelevant
or

inadmissible

during

the

punishment

phase

of

trial

and

has

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.

44

Findings and Conclusions, Docket Entry
(citing Tex. Code Crim. Proc. Ann. art. 37.07
2012)) .
-20-

No. 16-8, p. 76
3 (Vernon Supp.

§

c.

Ineffective Assistance of Counsel on Appeal

Ruiz

contends

that

he

was

denied effective

assistance

of

counsel on direct appeal because his attorney filed an Anders brief
and failed to provide him with a copy of that brief. 45

The state

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
frivolous.

46

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.

To

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

issues to

appeal- that is, that counsel unreasonably failed to discover nonfrivolous issues and raise them.
764 (2000).

Smith v. Robbins, 120 S. Ct. 746,

If the defendant succeeds in such a showing, he must

then establish actual prejudice by demonstrating a

"reasonable

probability" that, but for his counsel's deficient performance, "he
would have prevailed on his appeal."

Id.

The right to counsel on appeal "does not include the right to
bring a frivolous appeal and, concomitantly, does not include the
45

Petition, Docket Entry No. 1, p. 7; Petitioner's Response,
Docket Entry No. 24, pp. 12-18.
46

Findings and Conclusions,

Docket Entry No.

75-77.
-21-

16-8,

pp.

74,

right to counsel for bringing a frivolous appeal."

s. Ct. at 760.

Robbins, 120

"Appellate counsel is not deficient for not raising

every non-frivolous issue on appeal."

United States v. Reinhart,

357

(citing

F.3d

521,

525

(5th

Cir.

2004)

Williamson, 183 F.3d 458, 462 (5th Cir. 2000)).

United

States

v.

"To the contrary,

counsel's failure to raise an issue on appeal will be considered
deficient performance only when that decision 'fall[s]

below an

objective

standard

standard

of

reasonableness.'"

"This

requires counsel 'to research relevant facts and law, or make an
informed decision that certain avenues will not prove fruitful.'"
Id.

"'Solid, meritorious arguments based on directly controlling

precedent

should

attention.'"

be

discovered

and

brought

to

the

court's

Id.

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.

Ruiz argues

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.
Because Ruiz
(continued ... )
47

-22-

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
the

record and proposed one

concerning the

issue

sufficiency of

the

for

appellate

evidence. 50

consideration

Considering the

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
show

that

counsel

was

Because Ruiz does not otherwise

deficient

for

failing

to

raise

a

non-

frivolous claim or that the result of his appeal would have been
different but for his counsel's deficient performance, Ruiz does

47

( • • • 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
be denied.

48

Appellant's Pro Se Response Brief, Docket Entry No. 15-19,
pp. 1-29.
49

Petition, Docket Entry No. 1, p.
Docket Entry No. 24, pp. 12-18.
50

7; Petitioner's Response,

Brief of Appellant, Docket Entry No. 15-20, pp. 1-26.

51

As a result, the authority that Ruiz relies upon is
distinguishable.
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)).
-23-

not demonstrate that he was denied effective assistance of counsel
on appeal or that the state court's decision to reject this claim
was unreasonable.

Accordingly, Ruiz is not entitled to relief on

this claim.
D.

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
counsel's
"important

Anders

brief,

photographic

a

portion

evidence"

of

was

the

volume

missing. 52

Ruiz

containing
does

not

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
merit relief.
1983)
a

See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir.

(emphasizing that "mere conclusory allegations do not raise

constitutional

issue

in

a

habeas

proceeding")

(citations

omitted) .
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.

52

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) .
-24-

IV.

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
entering a

final

order that

is adverse

to

the petitioner.

A

certificate of appealability will not issue unless the petitioner
makes

"a substantial showing of the denial of a

right,"

28 U.S.C.

demonstrate
court's

"that

assessment

2253(c) (2),

§

'reasonable
of

the

constitutional

which requires a petitioner to

jurists

would

constitutional

find

the

claims

district

debatable

wrong."'

Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)

Slack v.

McDaniel,

120 S.

Ct.

1595,

1604

(2000)).

or

(quoting

Under the

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).

Miller-El v.

Cockrell,

123 S.

Ct.

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
procedural ruling."

Slack, 120 S. Ct. at 1604.

A district court may deny a

certificate of appealability,

sua sponte, without requiring further briefing or argument.
Alexander v.

Johnson,

211 F.3d 895,
-25-

898

(5th Cir.

2000).

See
After

careful review of the pleadings and the applicable law, the court
concludes that reasonable jurists would not find the assessment of
the

constitutional

claims

debatable

or

wrong.

Because

the

petitioner has not demonstrated that his claims could be resolved
in a different manner,

a certificate of appealability will not

issue.
V.

Conclusion and Order

The court ORDERS as follows:
1.

Respondent's Motion for Summary Judgment
Entry No. 17) is GRANTED.

2.

Petitioner
Evidentiary
DENIED.

Ignacio
Hearing

Ruiz's
(Docket

(Docket

for
Request
25)
Entry No.

An

is

3.

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
prejudice.

4.

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

-26-