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Ramey v. Davis

United States Court of Appeals, Fifth Circuit

November 1, 2019

KER'SEAN OLAJUWA RAMEY, Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CRIMINAL INSTITUTIONS DIVISION, Respondent - Appellee

          Appeal from the United States District Court for the Southern District of Texas

          Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge.

         Ker'Sean 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The 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 penalty.

         Ramey, 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 its mandate.

          On 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.

         II. TIMELINESS OF RAMEY'S PETITION

         The 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.

         AEDPA "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.

         We look 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, 334 (2007).

         While 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. 43.141(a)(2).

         The 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.

         For 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.

         III. SUBSTANTIVE DEFICIENCIES IN RAMEY'S PETITION

         The 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 district court.

         First, 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).

         Second, 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.

         The 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 Batson claim.

         For these reasons, we agree with the district court that the three claims before us were preserved when Ramey filed his Skeletal Petition.

         IV. DISCUSSION

         We will 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.

         "AEDPA 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.

         We 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. 2015)).

         Ramey 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.

         A. Batson Claim

         Ramey 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.

         Claims 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 becomes moot.").

         We need 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 ...


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