from the United States District Court for the Southern
District of Texas
SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge.
Olajuwa Ramey ("Ramey"), a Texas inmate convicted
of capital murder and sentenced to death, filed a federal
petition for a writ of habeas corpus on November 13, 2013. On
July 11, 2018, the United States District Court for the
Southern District of Texas denied Ramey's petition and
denied Ramey's request for a certificate of appealability
("COA"). Ramey now applies to this court for a COA.
This court has jurisdiction under 28 U.S.C. §§ 1291
and 2253 to consider whether a COA should issue. Ramey
contends that a COA is appropriate so that this court can
properly consider: (1) whether Ramey's trial was tainted
by the exclusion of black jurors (the "Batson
Claim"); (2) whether trial counsel rendered
unconstitutionally ineffective assistance before trial and
during the guilt phase of trial (the
"Strickland Guilt Phase Claim"); and (3)
whether trial counsel rendered unconstitutionally ineffective
assistance during the sentencing phase of trial (the
"Strickland Mitigation Phase Claim"). We
GRANT Ramey's application for a COA on his
Batson Claim and Strickland Guilt Phase
Claim. We DENY Ramey's application for a COA on his
Strickland Mitigation Phase Claim.
FACTUAL AND PROCEDURAL BACKGROUND
facts of this case have been detailed elsewhere. Ramey v.
Davis, 314 F.Supp.3d 785 (S.D. Tex. 2018); Ramey v.
State, No. AP-75, 678, 2009 WL 335276 (Tex. Crim. App.
Feb. 11, 2009). Therefore, we provide only a brief exposition
here. On December 17, 2005, the State of Texas indicted Ramey
for capital murder, charging him for the murders of three
individuals in Jackson County, Texas. A Texas jury found
Ramey guilty of capital murder. Following the sentencing
phase of the trial, the jury answered Texas's special
issue questions in a manner requiring imposition of the death
through the same counsel who represented him at trial,
appealed directly to the Texas Court of Criminal Appeals. On
February 11, 2009, the Texas Court of Criminal Appeals
affirmed Ramey's conviction and sentence. Ramey,
2009 WL 335276. Through separate, appointed counsel, Ramey
also filed a state application for a writ of habeas corpus.
The same judge who presided over Ramey's trial
adjudicated his state habeas application. Ramey, 314
F.Supp.3d at 796. The judge entered an order recommending
that the Texas Court of Criminal Appeals deny habeas relief.
Id. at 796. After setting the case for submission,
the Texas Court of Criminal Appeals denied Ramey's
request for habeas relief on November 7, 2012. Ex parte
Ramey, 382 S.W.3d 396, 398 (Tex. Crim. App. 2012). On
December 4, 2012, the Texas Court of Criminal Appeals issued
November 14, 2013, Ramey filed a federal petition for a writ
of habeas corpus that listed five claims and
"incorporate[d] into his claims for relief the claims
filed in his direct appeal brief and in his state habeas
application." After his initial federal habeas counsel
withdrew and new federal habeas counsel was appointed, Ramey
amended his filing on December 15, 2015, raising six
additional claims. On July 11, 2018, the district court
denied relief and denied a COA.
TIMELINESS OF RAMEY'S PETITION
State first contends that Ramey's federal habeas
petition, filed on November 14, 2013, was untimely because he
filed it more than one year after the Texas Court of Criminal
Appeals' November 7, 2012 denial of Ramey's state
habeas petition. The district court held that the one-year
limitations period did not begin running until the mandate
issued, which means Ramey had until December 4, 2013 to file
his federal habeas petition. The district court also held
that the Batson Claim, the Strickland Guilt
Phase Claim, and the Strickland Mitigation Phase
Claim all relate back to Ramey's federal habeas petition
filed on November 14, 2013. We agree with the district court.
"enacted a one-year period of limitation for federal
habeas proceedings that runs, unless tolled, from the date on
which the petitioner's conviction became final at the
conclusion of direct review . . ." Cantu-Tzin v.
Johnson, 162 F.3d 295, 298 (5th Cir. 1998). This
one-year limitations period is tolled while an application
for state post-conviction relief is "pending." 28
U.S.C. § 2244(d)(2). Here, the question is whether, in a
capital case set for submission, a matter is
"pending" after the Texas Court of Criminal Appeals
renders its opinion but before that court issues its mandate.
to Texas's "post-conviction procedures to determine
. . . when state review ended." Watts v.
Brewer, 416 Fed.Appx. 425, 428 (5th Cir. 2011) (cleaned
up). The Supreme Court has held that we must determine
"[w]hen the state courts have issued a final judgment on
a state application" to decide if "it is no longer
pending." Lawrence v. Florida, 549 U.S. 327,
this court has held that a Mississippi habeas petition
remains pending until the mandate issues, Watts, 416
Fed.Appx. at 430, this court has not determined whether the
same rule applies in Texas. In Texas, the issuance of the
mandate in cases set for submission signals that "the
judgment [is] final." Hartfield v. Thaler, 403
S.W.3d 234, 239 (Tex. Crim. App. 2013); see also Ex parte
Webb, 270 S.W.3d 108, 109 n.2 (Tex. Crim. App. 2008)
(recognizing that issuance of a mandate in Texas is "an
appellate court's official notice, directed to the court
below, advising it of the appellate court's decision and
directing it to have the appellate court's judgment duly
recognized, obeyed, and executed."); Ex parte
Johnson, 12 S.W.3d 472, 473 (Tex. Crim. App. 2000)
(explaining judgment is not final before issuance of the
mandate). The issuance of the mandate is particularly
important in Texas capital habeas procedure. If a capital
case is "filed and set for submission," Texas
criminal procedure prohibits a lower court from setting an
execution date until "the court of criminal appeals
issues a mandate." Tex. Code Crim. Pro. Art.
State's focus on Ott v. Johnson is misplaced.
There, we addressed whether the one-year limitations period
should be tolled during the ninety days that a state habeas
applicant has to seek a writ of certiorari from the United
States Supreme Court. Ott v. Johnson, 192 F.3d 510,
513 (5th Cir. 1999). We held that a Texas habeas
"application becomes final after a decision by the
state's high court." Id. However, that case
did not involve a capital habeas petition that had been
set for submission by the Texas Court of Criminal
Appeals, meaning that no mandate would issue at all.
these reasons, we affirm the district court's denial of
the State's procedural challenge to the timeliness of
Ramey's November 14, 2013 habeas petition. We embrace the
district court's narrow holding on this issue: "[I]n
a capital habeas case set for submission, a case is pending
for the purposes of section 2244(2) until the Texas Court of
Criminal Appeals issues a mandate." Ramey, 314
F.Supp.3d at 800.
SUBSTANTIVE DEFICIENCIES IN RAMEY'S PETITION
State next contends that Ramey's federal habeas petition,
as filed on November 14, 2013 (the "Skeletal
Petition"), was deficient because it "failed to
adequately address any claim." The State argues that the
Skeletal Petition was not a "petition" at all
because it did not comply with Rule 8 of the Federal Rules of
Civil Procedure. The State also argues that the claims
contained in Ramey's amended habeas petition filed on
December 15, 2015 do not relate back to the claims in
Ramey's Skeletal Petition. The district court rejected
the State's argument, holding that the State
"concedes" that Ramey's Strickland
claims relate back. It then held that Ramey's
Batson claim was incorporated by reference in his
Skeletal Petition and that the Batson claim in his
amended petition related back to the incorporated
Batson claim. Id. Again, we agree with the
we concur with the district court's finding that the
State "concedes" that Ramey's
Strickland claims relate back to the Skeletal
Petition and, therefore, were properly preserved. We note
that the State does not challenge the district court's
factual finding that the State "concede[d]" its
position on these two claims. See United States v.
Whitfield, 590 F.3d 325, 346 (5th Cir. 2009) ("[A]
party waives any argument that it fails to brief on
appeal."). Instead, the State argues on the merits,
bypassing the district court's analysis. A failure to
identify error in the district court's reasoning
constitutes waiver. See Hughes v. Johnson, 191 F.3d
607, 613 (5th Cir. 1999); Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
we affirm the district court's holding that Ramey's
Batson claim relates back to the Skeletal Petition.
The Supreme Court has made clear that a federal habeas
petition that explicitly references external appended
documents incorporates those documents by reference. Dye
v. Hofbauer, 546 U.S. 1, 4 (2005); see also Allen v.
Vannoy, 659 Fed.Appx. 792, 804-05 (5th Cir. 2016)
(reviewing a claim raised during state habeas proceedings and
incorporated by reference in federal habeas petition). Ramey
incorporated all claims from his direct appeal brief and
state habeas application into his Skeletal Petition. Although
Ramey's Batson claim did not appear in the short
list of claims in his Skeletal Petition, it did appear in his
prior briefing. Therefore, the question is whether
Ramey's Batson claim, as pled in his amended
petition, is "tied to a common core of operative
facts" with the Batson claim incorporated by
reference into his Skeletal Petition. Mayle v.
Felix, 545 U.S. 644, 66 (2005); United States v.
Randall & Blake, 817 F.2d 1188, 1191 (5th Cir. 1987)
("[An] amended complaint relates back if it asserts the
same claim 'set forth or attempted to be set
forth' in the original complaint.").
Ramey's amended petition alleges exclusion of black
jurors from Ramey's jury, and the Skeletal Petition by
incorporation alleges identical claims with similar
underlying facts. For example, the Skeletal Petition by
incorporation challenged the State's use of the jury
shuffle, the State's striking of several black
veniremembers, and the State's peremptory strike against
Cheryl Steadham-Scott. These allegations are "tied to a
common core of operative facts" with the Batson
claim included in Ramey's amended petition.
State relies on the Supreme Court's holding in
Baldwin County Welcome Center v. Brown, 466 U.S. 147
(1984), to argue that Ramey's Skeletal Petition failed to
satisfy Federal Rule of Civil Procedure 8. In Baldwin
County, the Supreme Court held that a right-to-sue
letter sent by the EEOC could not qualify as a
"complaint" under Rule 8. Id. at 149-50.
However, the Court did not announce a rule that claims cannot
be incorporated by reference in federal court. Instead, the
Court reasoned that the right-to-sue letter did not contain a
"statement in the letter of the factual basis for the
claim of discrimination." Id. By contrast,
Ramey's Skeletal Petition incorporates by reference
post-conviction briefs that lay out the factual basis for his
these reasons, we agree with the district court that the
three claims before us were preserved when Ramey filed his
grant a COA upon "a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2). A
COA will issue if the applicant shows that "jurists of
reason could disagree with the district court's
resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve
encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). Thus, a COA should
issue if "reasonable jurists could debate whether . . .
the petition should have been resolved in a different
manner." Id. at 336 (quoting Slack,
529 U.S. at 484). Importantly, "a COA does not require a
showing that the appeal will succeed. . . . [A] COA will
issue in some instances where there is no certainty of
ultimate relief." Miller-El, 537 U.S. at 337.
requires federal district courts to give deference to state
court decisions." Davila v. Davis, 650
Fed.Appx. 860, 868-69 (5th Cir. 2016), aff'd,
137 S.Ct. 2058 (2017). "At this stage, however, [this
court] only ask[s] whether the District Court's
application of AEDPA deference, as stated in SS 2254(d)(2)
and (e)(1), . . . was debatable amongst jurists of
reason." Miller-El, 537 U.S. at 341.
conduct a "threshold inquiry into the underlying
merit" of Ramey's habeas claims to determine whether
a COA should issue. Miller-El, 537 U.S. at 327. This
inquiry "does not require full consideration of the
factual or legal bases" of the claims. Pippin v.
Dretke, 434 F.3d 782, 787 (5th Cir. 2005). We need only
consider "if the District Court's decision was
debatable." Rhoades v. Davis, 852 F.3d 422, 427
(5th Cir. 2017). When a prisoner faces death, "'any
doubts as to whether a COA should issue must be resolved'
in the petitioner's favor." Id. (quoting
Allens v. Stephens, 805 F.3d 617, 625 (5th Cir.
contends that a COA is appropriate so that this court can
properly consider his Batson Claim, his
Strickland Guilt Phase Claim, and his
Strickland Mitigation Phase Claim. We conclude that
Ramey is entitled to a COA on his Strickland Guilt
Phase Claim and Batson Claim, but we reject
Ramey's application for a COA on his Strickland
Mitigation Phase Claim.
contends that the district court erred when it denied his
Batson claim. Although the district court gave a
detailed analysis of this issue, we conclude "that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further."
Miller-El, 537 U.S. at 327. Therefore, we grant a
COA on this issue.
challenging the use of race-based peremptory strikes require
the application of Batson's three-step test. A
defendant must first make a prima facie case that race
motivated the challenged strikes. Batson v.
Kentucky, 476 U.S. 79, 96-97 (1986). If the defendant
carries this burden, a prosecutor must provide race-neutral
reasons for the challenged strikes. Id. at 97-98.
Finally, the trial court or reviewing court considers whether
the defendant has carried his burden of proving purposeful
discrimination. Id. at 98. Here, we bypass step one
because the prosecutor volunteered a race-neutral explanation
for the peremptory strike at issue. Hernandez v. New
York, 500 U.S. 352, 359 (1991) ("Once a prosecutor
has offered a race-neutral explanation for the peremptory
challenges and the trial court has ruled on the ultimate
question of intentional discrimination, the preliminary issue
of whether the defendant had made a prima facie showing
only conduct a "preliminary, though not definitive"
consideration of Ramey's Batson claim.
Miller-El, 537 U.S. at 338. "In the context of
the threshold examination in this Batson claim the
issuance of a COA can be supported by any evidence
demonstrating that, despite the neutral explanation of the
prosecution, the peremptory strikes in the final analysis
were race based." Id. at 340. "A
petitioner satisfies this standard by demonstrating that
jurists of reason could disagree with the district
court's resolution of his constitutional claims or ...