Petition for Writ of Certiorari — Ker'Sean Olajuwa Ramey, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefDec 23, 2021

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No. 21A133

IN THE

Supreme Court of the United States

————

KER’SEAN OLAJUWA RAMEY,

Petitioner,

BOBBY LUMPKIN, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

**CAPITAL CASE**

————

PETITION FOR WRIT OF CERTIORARI

————

RONALD A. MCINTIRE

Counsel of Record

ALISHA C. BURGIN

CATHERINE J. DEL PRETE

JESSICA R. FRENKEL

JONATHAN P. GODDARD

PERKINS COIE LLP

1888 Century Park E.

Suite 1700

Los Angeles, CA 90067-1721

(310) 788-9900

RMcIntire@perkinscoie.com

Counsel for Petitioner

Ker’Sean Olajuwa Ramey

December 23, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

CAPITAL CASE

QUESTIONS PRESENTED

1. In rejecting Ramey’s claim for relief under Batson

v. Kentucky, 476 U.S. 79 (1986) (“Batson Claim”) and

ignoring Ramey’s argument that 28 U.S.C. § 2254(d)(2)

entitled him to relief without addressing any of the

considerations this Court’s decisions identify as relevant to determining whether racial bias motivated the

prosecution’s exercise of a peremptory strike, did the

Fifth Circuit decide that important federal question

“in a way that conflicts with relevant decisions of this

Court”? Sup. Ct. R. 10(c).

2. Did the Fifth Circuit err in denying Ramey a

certificate of appealability (“COA”) on his claim of

ineffective assistance of counsel at the penalty phase

(“Mitigation Claim”), given that reasonable jurists could

debate whether the equitable considerations underlying Martinez v. Ryan, 566 U.S. 1 (2012) (as extended

by Trevino v. Thaler, 569 U.S. 413 (2013)) (“Martinez/

Trevino”) demand a similar narrow exception to

Cullen v. Pinholster, 563 U.S. 170 (2011) that would

apply here?

3. Alternatively, did the Fifth Circuit err in denying

Ramey a COA on the Mitigation Claim because reasonable jurists could debate whether the new evidence

he developed in federal court fundamentally altered

the claim that had been adjudicated on the merits in

state court, thereby rendering it a new, unexhausted

claim eligible for consideration in federal court via

Martinez/Trevino?

(i)

LIST OF RELATED PROCEEDINGS

Criminal District Court of Texas (Jackson County):

• Texas v. Ramey, No. 05-12-7342 (Jan. 23, 2007)

Texas Court of Criminal Appeals:

• Ramey v. Texas, No. AP-75,678 (Feb. 11, 2009)

• Ex parte Ramey, No. AP-76,533 (Nov. 7, 2012)

United States District Court (S.D. Tex.):

• Ramey v. Davis, No. 6:13-CV-43, Docket No. 59

(July 11, 2018)

• Ramey v. Davis, No. 6:13-CV-43, Docket No. 65

(Nov. 16, 2018)

United States Court of Appeals (5th Cir.):

• Ramey v. Davis, No. 18-70034 (Nov. 1, 2019)

• Ramey v. Lumpkin, No. 18-70034 (July 29, 2021)

• Ramey v. Lumpkin, No. 18-70034 (Aug. 25, 2021)

United States Supreme Court:

• Ramey v. Texas, No. 08-10291 (Oct. 5, 2009)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

LIST OF RELATED PROCEEDINGS ................

TABLE OF AUTHORITIES ................................

vii

OPINIONS BELOW ............................................

JURISDICTION ..................................................

CONSTITUTIONAL AND

STATUTORY PROVISIONS ...........................

STATEMENT OF THE CASE ............................

STATEMENT OF FACTS ...................................

I. THE STATE’S REASONS FOR REMOVING NON-WHITE VENIREMEMBERS

WERE RACIALLY MOTIVATED ............

II. TRIAL COUNSEL PERFORMED NO

MITIGATION INVESTIGATION ............

PROCEDURAL HISTORY ..................................

REASONS FOR GRANTING CERTIORARI .....

I. IN REJECTING RAMEY’S BATSON

CLAIM,

THE

FIFTH

CIRCUIT

IGNORED AN INDEPENDENT BASIS

FOR RELIEF UNDER 28 U.S.C. § 2254(D)

AND CONTINUED ITS TROUBLING

RECALCITRANCE

APPLYING

BATSON AND ITS PROGENY ................

A. The Fifth Circuit ignored Ramey’s

§ 2254(d)(2) Argument ........................

(iii)

TABLE OF CONTENTS—Continued

Page

B. The relevant facts and circumstances

point inexorably to the conclusion

that the State struck Steadham-Scott

because she is Black.............................

1. Ramey established by clear and

convincing evidence that the

State’s strike of Steadham-Scott

was racially motivated ....................

(a) Disparate questioning ..............

(b) To stack the deck, the State

shuffled the jury........................

Steadham-Scott.........................

(d) The State’s claimed reasons for

striking Steadham-Scott applied

equally to a seated white juror ...

(e) The State’s explanation for

striking Steadham-Scott has

changed significantly over the

years ..........................................

C. The Fifth Circuit’s improper treatment of Ramey’s Batson Claim is

consistent with its troubling history

of systematic departures from the

Court’s Batson jurisprudence..............

TABLE OF CONTENTS—Continued

Page

II.

RAMEY’S MITIGATION CLAIM RAISES

IMPORTANT ISSUES ABOUT THE

IMPLICATIONS

MARTINEZ/

TREVINO ON WHICH LOWER COURTS

ARE DIVIDED ..........................................

A. A narrow equitable exception to

Pinholster is warranted .......................

1. The Circuits have struggled to

navigate the tension between

Pinholster’s inflexible rule and the

equitable considerations underlying Martinez/Trevino .................

2. The equitable concerns behind

Martinez/Trevino apply just as

powerfully here...............................

3. An equitable exception would

apply here .......................................

B. Alternatively, the Court should confirm

that new evidence can fundamentally

alter an Undeveloped IATC Claim,

rendering it unexhausted and potentially eligible for merits review under

Martinez/Trevino ................................

1. Ramey’s new evidence fundamentally altered the penalty phase

IATC claim presented to the state

habeas court ...................................

TABLE OF CONTENTS—Continued

Page

2. Ramey’s fundamentally altered

Mitigation Claim is unexhausted,

procedurally defaulted, and subject to Martinez/Trevino ................

CONCLUSION ....................................................

APPENDIX

APPENDIX A: MEMORANDUM

AND

ORDER, District Court for the Southern

District of Texas (July 9, 2018) ......................

APPENDIX B: OPINION, Court of Appeals

for the Fifth Circuit (November 1, 2019) ......

83a

APPENDIX C: OPINION, Court of Appeals

for the Fifth Circuit (July 29, 2021) .............. 108a

APPENDIX D: ORDER, Court of Appeals

for the Fifth Circuit (August 25, 2021).......... 129a

APPENDIX E: OPENING STATEMENTS

STATE’S CASE IN CHIEF, District Court

24th Judicial District Victoria County,

Texas (January 4, 2007) ................................. 130a

vii

TABLE OF AUTHORITIES

CASES

Page(s)

Batson v. Kentucky,

476 U.S. 79 (1986) ....................................passim

Broadnax v. Lumpkin,

987 F.3d 400 (5th Cir. 2021) ..................... 24, 34

Carter v. Bigelow,

787 F.3d 1269 (10th Cir. 2015) ................. 5, 27

Chamberlin v. Fisher,

885 F.3d 832 (5th Cir. 2018) ........... 4, 12, 23, 24

Chamberlin v. Fisher,

No. 2:11-CV-72-CWR, 2015 WL 1485901

(S.D. Miss. Mar. 31, 2015) ........................

Coleman v. Thompson,

501 U.S. 722 (1991) ................................... 26, 29

Conner v. Quarterman,

477 F.3d 287 (5th Cir. 2007) .....................

Cullen v. Pinholster,

563 U.S. 170 (2011) ..................................passim

Dickens v. Ryan,

740 F.3d 1302 (9th Cir. 2014) ............... 5, 27, 34

Escamilla v. Stephens,

749 F.3d 380 (5th Cir. 2014) .....................

Ex parte Reynoso,

257 S.W.3d 715 (Tex. Crim. App. 2008) ....

Flowers v. Mississippi,

139 S. Ct. 2228 (2019) ..............................passim

Foster v. Chatman,

578 U.S. 488 (2016) ............................. 16, 21, 24

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Gallow v. Cooper,

570 U.S. 933 (2013) ................................... 26, 29

Gregory v. Thaler,

601 F.3d 347 (5th Cir. 2010) .....................

Love v. Cate,

449 Fed. Appx. 570 (9th Cir. 2011) ..........

Martinez v. Ryan,

566 U.S. 1 (2012) ......................................passim

McWilliams v. Dunn,

137 S. Ct. 1790 (2017) ...............................

Miller v. Dretke,

420 F.3d 356 (5th Cir. 2005) .....................

Miller-El v. Cockrell,

537 U.S. 322 (2003) ............................. 12, 18, 22

Miller-El v. Dretke,

545 U.S. 231 (2005) ..................................passim

Moore v. Mitchell,

708 F.3d 760 (6th Cir. 2013) .....................

Moore v. Stirling,

952 F.3d 174 (4th Cir. 2020) .....................

Nelson v. Davis,

952 F.3d 651 (5th Cir. 2020) .....................

Pena-Rodriguez v. Colorado,

137 S. Ct. 855 (2017) .................................

Porter v. McCollum,

558 U.S. 30 (2009) .....................................

TABLE OF AUTHORITIES—Continued

Page(s)

Purkett v. Elem,

514 U.S. 765 (1995) ...................................

Ramey v. Davis,

314 F. Supp. 3d 785 (S.D. Tex. 2018) ..... 1, 3, 10

Ramey v. Davis,

942 F.3d 241 (5th Cir. 2019) ....................passim

Ramey v. Lumpkin,

7 F.4th 271 (5th Cir. 2021). .....................passim

Ramey v. State,

No. AP-75,678, 2009 WL 335276

(Tex. Crim. App. Feb. 11, 2009) ...............

Rogers v. Mays,

814 Fed. Appx. 984 (6th Cir. 2020) ..........

Rompilla v. Beard,

545 U.S. 374 (2005) ................................... 30, 32

Sells v. Stephens,

536 Fed. Appx. 483 (5th Cir. 2013) .......... 34, 35

Sheppard v. Davis,

967 F.3d 458 (5th Cir. 2020) ..................... 23, 24

Snyder v. Louisiana,

552 U.S. 472 (2008) ................................... 11, 15

Sorto v. Davis,

859 F.3d 356 (5th Cir. 2017) .....................

Strickland v. Washington,

466 U.S. 668 (1984) ...................................

Trevino v. Thaler,

569 U.S. 413 (2013) ..................................passim

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Taylor,

636 F.3d 901 (7th Cir. 2011) .....................

Vandross v. Stirling,

986 F.3d 442 (4th Cir. 2021) ..................... 27, 34

Vasquez v. Hillery,

474 U.S. 254 (1986) ...................................

Wiggins v. Smith,

539 U.S. 510 (2003) ...................................

Williams v. Taylor,

529 U.S. 362 (2000) ...................................

CONSTITUTION

U.S. Const. amend. VI ..................................

U.S. Const. amend. XIV ............................... 2, 22

STATUTES

28 U.S.C. § 1254(l) ........................................

Anti-terrorism and Effective Death Penalty

Act, 28 U.S.C. § 2254(d) .................. 1, 11, 12, 13

§ 2254(d)(1).......................................... 12, 13, 14

§ 2254(d)(2)...............................................passim

Tex. Code Crim. Proc. art. 11.071 § 3 ..........

Tex. Code Crim. Proc. art. 11.071 § 5(e) ......

Petitioner Ker’Sean Olajuwa Ramey respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fifth

Circuit in this case.

OPINIONS BELOW

The District Court’s opinion denying habeas relief is

reported at 314 F. Supp. 3d 785 (S.D. Tex. 2018).

App.A at 1a. The Fifth Circuit’s opinion granting a

Certificate of Appealability (“COA”) on the Batson

Claim but denying a COA on the Mitigation Claim is

reported at Ramey v. Davis, 942 F.3d 241 (5th Cir.

2019). App.B at 83a. The Fifth Circuit’s opinion

affirming the denial of habeas relief is reported at

Ramey v. Lumpkin, 7 F.4th 271 (5th Cir. 2021). App.C

at 108a.

JURISDICTION

The court of appeals granted in part and denied in

part Ramey’s application for a COA on November 1,

2019. App.B at 107a. Its judgment was entered on July

29, 2021, and a rehearing was denied on August 25.

App.C at 128a; App.D at 129a. On November 5, Justice

Alito extended the time to file this petition until and

including December 23, 2021. Order, Ramey v.

Lumpkin, No. 21A133 (S. Ct. Nov. 5, 2021). This Court

has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Anti-terrorism and Effective Death Penalty Act

(“AEDPA”), 28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim. . .

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United

States; or (2) resulted in a decision that was

based on an unreasonable determination of

the facts in light of the evidence presented in

the State court proceeding.

The Fourteenth Amendment to the Constitution

provides, in relevant part:

No State shall. . .deprive any person of life,

liberty, or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of the laws.

The Sixth Amendment to the Constitution provides, in

relevant part:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial,

by an impartial jury. . .and to have the

Assistance of Counsel for his defence.

STATEMENT OF THE CASE

Ker’Sean Olajuwa Ramey, a young Black man, was

convicted of capital murder and quickly sentenced to

death by a nearly all-white jury. The deck was stacked

against him; Ramey had no chance of receiving a fair

trial. His jury was handpicked by the prosecution

(“State”) in a voir dire infected with racial bias. Worse

still, Ramey was represented by inexperienced and

overburdened trial counsel—lead counsel was a lawyer,

full-time dentist, and military reservist—who conducted

no independent investigation and was thus unprepared to defend Ramey at any stage of trial. This

perfect storm paved the way for a guilty verdict and a

death sentence even though no physical evidence

tied Ramey to the crime. The jury deliberated only 14

minutes before sentencing Ramey to death.

Ramey’s state habeas counsel only made matters

worse, also failing to conduct any extra-record

investigation. He raised a wholly undeveloped ineffective assistance claim, which did not present any of

the ample (and readily available) evidence showing

that the penalty phase of Ramey’s trial was botched by

his trial counsel. Indeed, after considering Ramey’s “full

argument”—which was presented for the first time in

federal court—both the District Court and Fifth

Circuit agreed that “trial counsel could have done

much more,” (App.A at 73a), and relevant here, that

federal habeas counsel had presented “a much more

detailed analysis” of what trial counsel “could have—

and should have—done at the mitigation phase”

(App.B at 107a) (emphasis added). But the perceived

procedural bar of Cullen v. Pinholster, 563 U.S. 170

(2011), prevented both courts from reviewing the

merits of Ramey’s fully developed Mitigation Claim.

The Court’s review is warranted here to:

(1) correct the Fifth Circuit’s persistent misunderstanding of the letter and spirit of this Court’s Batson

v. Kentucky, 476 U.S. 79 (1986), jurisprudence, which

has yielded a series of opinions that unjustifiably

narrow this Court’s precedents and threaten to erode

equal justice under the law by tolerating manifest

racial discrimination in jury selection; and

(2) resolve the tension between Pinholster and

Martinez v. Ryan, 566 U.S. 1 (2012) (as extended by

Trevino v. Thaler, 569 U.S. 413 (2013)), which has

created confusion in the lower courts and undermined

Martinez’s aim of ensuring that substantial claims of

ineffective assistance of trial counsel receive federal

review.

Batson Violation: This case presents an opportunity to correct the Fifth Circuit’s decades-long

recalcitrance toward Batson and progeny. In rejecting

Ramey’s Batson Claim, the Fifth Circuit ignored an

independent basis for relief under 28 U.S.C. § 2254(d)(2)—

despite ample evidence (e.g., disparate questioning tactics

and a questionable jury shuffle, see infra REASONS

FOR GRANTING CERTIORARI (“REASONS”) I.B.1)

that the State’s peremptory strike of the sole qualified

Black veniremember, Cheryl Steadham-Scott, was

racially motivated—such that the Texas courts’ denial

of Ramey’s Batson Claim rests on an “unreasonable

determination of the facts.”

The Fifth Circuit declined to address, in the context

of § 2254(d)(2), a reviewing court’s obligation to consider all facts and circumstances bearing on possible

racial animus in jury selection, despite this Court’s

clear instruction in Miller-El v. Dretke, 545 U.S. 231,

240 (2005) (“Miller-El II”).

Unfortunately, this is consistent with the Fifth

Circuit’s pattern of narrowly interpreting and limiting

the reach of Batson. E.g., Miller-El II; Chamberlin v.

Fisher, 885 F.3d 832 (5th Cir. 2018). The Court’s

intervention is necessary to end the Fifth Circuit’s

continued misapplication of Batson and preserve

constitutional rights essential to the public integrity of

our justice system.

Ineffective Assistance of Counsel: This case

also presents an opportunity to address the tension

between Pinholster and Martinez/Trevino, which has

simmered in the lower courts ever since Martinez was

issued. That tension arises from the fact that even

though the equitable considerations driving Martinez/

Trevino apply equally to petitioners like Ramey, whose

state habeas counsel nominally raised but barely developed substantial ineffective assistance of trial counsel

(“IATC”) claims (“Undeveloped IATC Claims”), only

the former category of petitioners are permitted to

present their fully developed claims in federal court.

Circuit courts have struggled to resolve this tension

because Pinholster bars federal courts from considering new evidence supporting these substantial IATC

claims. Some Circuits, prioritizing equity, have found

that Pinholster does not bar Undeveloped IATC Claims

where new evidence fundamentally alters them, rendering them new, unexhausted, and procedurally

defaulted. E.g., Dickens v. Ryan, 740 F.3d 1302, 131920 (9th Cir. 2014). Others have withheld federal court

review of such Undeveloped IATC Claims, holding that

Pinholster bars consideration of even the strongest new

evidence. E.g., Carter v. Bigelow, 787 F.3d 1269, 128990 (10th Cir. 2015). The Fifth and Sixth Circuits have

internally split over the issue. See infra REASONS II.A.1.

As such, in some Circuits, petitioners with Undeveloped IATC Claims have a path to federal court review,

while petitioners in others have no such opportunity.

And in the Fifth and Sixth Circuits, petitioners cannot

predict whether the panel hearing their case will

consider new evidence in support of their Undeveloped

IATC Claim. The Court must intervene to ensure that

petitioners in all Circuits have a path to federal court

review of substantial IATC claims, either through a

narrow exception to Pinholster or the fundamental

alteration approach, as equity demands.

STATEMENT OF FACTS

I. THE STATE’S REASONS FOR REMOVING

NON-WHITE VENIREMEMBERS WERE

RACIALLY MOTIVATED.

Ramey’s jury was ultimately selected from two venire

panels that collectively comprised 184 people. The first

panel of 135 individuals was qualified on October 30,

2006. ROA.3577-81. Each panelist provided identifying information—including race—and completed a

23-page questionnaire that asked about their background and views on the death penalty. ROA.6115-37;

ROA.5995-6063. Most panelists were also questioned

individually.

The first panel contained seven Black veniremembers.

See ROA.5995-6063. None sat on Ramey’s jury; the

State successfully challenged five, purportedly for cause,

and two were excused. ROA.3611, 3729-43, 3821-23,

3987-89, 4575-76, 4599-4615, 4655-59. The State questioned certain Black veniremembers differently than

similarly situated white veniremembers. See infra

REASONS I.B.1.(a). After a month, the first panel was

exhausted, and 11 jurors had been seated—ten white

and one Hispanic. See ROA.4635-4712; 5995-6063.

A second panel of 49 veniremembers was called

on December 4, 2006. ROA.4290-4320, 4327. Shortly

after the second panel entered the courtroom and sat

in order—four of the first 10 veniremembers to be

questioned were Black—the State requested a jury

shuffle. ROA.6064-89, 4328.

After the jury shuffle, only two Black veniremembers

remained among the first 30 panelists to be questioned.

ROA.6064-89. Cheryl Steadham-Scott was the first

Black veniremember questioned. The State asked her

racially-charged questions and sought her view on the

guilt or innocence of certain Black defendants in high

profile trials. ROA.4688-99. Steadham-Scott maintained that she could and would apply the law as

directed, so the State used a peremptory strike to

remove her. ROA.4690-91. Shortly thereafter, the full

jury—which had no Black people—was selected.

ROA.4711.

Ramey challenged the State’s strike of SteadhamScott, and the State offered three “race-neutral”

reasons for its actions: (1) “if [the State] would have

continued to pursue the line of questioning, [SteadhamScott] would have most likely been challengeable for

cause”; (2) “her questionnaire clearly indicated that

she could not impose the death penalty”; and (3) “there

were other many [sic] racially-neutral reasons.” App.E

at 133a-34a. The trial court accepted the State’s reasons

and denied Ramey’s Batson challenge. Id. at 134a.

II. TRIAL COUNSEL PERFORMED

MITIGATION INVESTIGATION.

Ramey was represented by Dr. Joseph Rutherford

Willie, II, a full-time dentist, part-time lawyer and

Marine reservist, and James Donald Evans, III, who

associated with Willie just before trial to assist with

voir dire.1 ROA.550-51. Ramey’s counsel did almost

nothing to rebut the State’s evidence or impeach

witnesses—largely because of their complete failure to

conduct any independent investigation. On January

16, 2007, after deliberating for about an hour, the jury

found Ramey guilty of capital murder. ROA.5038.

Willie and Evans are collectively referred to as “trial counsel.”

Trial counsel continued their abysmal performance

at punishment, failing to conduct any investigation

despite repeated offers of assistance from the trial

court—which expressed reservations on the record about

counsels’ preparations and lack of investigation—and

others. ROA.535; 551-53, 588-90, 600-06. At the penalty phase, the state presented 38 “factual” witnesses

who alleged various bad acts by Ramey over the years.

See generally ROA.5045-5144. Most inflammatory

was testimony from a young boy who claimed to

have witnessed Ramey sexually assault another boy.

ROA.5074-75. A reasonable investigation by trial

counsel would have identified three exonerating witnesses who would have testified that Ramey was not

involved in the assault. ROA.400, 516, 548.

Had trial counsel conducted any investigation, they

also would have learned that Ramey suffered a

difficult and traumatic childhood. His mother was a

habitual drug user who consumed alcohol while pregnant with Ramey. ROA.458. From infancy, Ramey was

surrounded by substance abuse and crime. Until he

was seven, Ramey lived in public housing with his

mother and her long-term boyfriend, who cooked crack

and sold drugs from their residence. ROA.457-58.

Both regularly used drugs around Ramey. ROA.45859. Ramey was the victim of frequent physical and

psychological abuse. E.g., ROA.459-60, 472, 544.

The jury heard none of this—instead, they heard

from psychiatrist Mark Kunik, trial counsel’s illchosen “expert,” who specialized in the treatment of

the elderly and lacked any experience in assessing

future dangerousness. ROA.555-58, 560-61, 534-35.

Instead of providing Kunik with the fruits of an actual

investigation, Willie gave him portions of the State’s

open file. ROA.602. Kunik inaccurately concluded that

Ramey faced no physical violence at home and his

mother was “loving, overprotective, and always worried

about his well-being.” ROA.565. A simple investigation would have shown this was false.

Ramey suffered from developmental disorders and

scored well below average on academic and intelligence assessments throughout his schooling and failed

to finish high school or earn a GED. ROA.462-64, 48185, 545. Trial counsel presented this incomplete

information—gleaned from the State’s open file—via

its only other mitigation witness, Ramey’s mother.

ROA.5144-48. She was not asked about any abuse

Ramey suffered as a child.

The trial court, evidently worried that trial counsel

were bungling the punishment phase, questioned

them ex parte (but on the record) for a third time about

their deficient investigative efforts:

Now, in effect what you’ve done is called Dr.

Kunik and the Defendant’s mother and have

rested, and is there any other witnesses that

you were unable to call that you were, you

know, unable to subpoena, or obtain, or did

you make a determination that there were

other witnesses, but none that you thought

would help in the case? I just want to hear

what you have to say about that.

ROA.602. Willie responded: “none that we thought

would help in this case. . .” Id.

The jury took less than 14 minutes to sentence

Ramey to death. ROA.5182.

PROCEDURAL HISTORY

After the judgment was affirmed on direct appeal,

see Ramey v. State, No. AP-75,678, 2009 WL 335276

(Tex. Crim. App. Feb. 11, 2009), Ramey sought state

habeas relief. State habeas counsel was similarly ineffective. He conducted no extra-record investigation,

even though an outside lawyer flagged trial counsel’s

nonexistent mitigation investigation as an issue. See

ROA.1339-44; 1894. Thus, he failed to provide any

factual support for several claims he asserted, including Ramey’s summarily raised penalty phase IATC

claim. ROA.5859-62.

After state habeas relief was denied, Ramey sought

review in federal court. Undersigned counsel entered

the case, filing Ramey’s amended federal habeas on

December 15, 2015. ROA.226-440. On July 11, 2018,

the District Court denied relief and a COA. App.A at

82a. The Fifth Circuit granted a COA on Ramey’s

Batson Claim, but denied a COA on the Mitigation

Claim. App.B at 107a. The Fifth Circuit affirmed the

District Court’s denial of relief on July 29, 2021 (App.C

at 128a) and denied Ramey’s petition for rehearing on

August 25, 2021 (App.D).

REASONS FOR GRANTING CERTIORARI

I. IN REJECTING RAMEY’S BATSON CLAIM,

THE FIFTH CIRCUIT IGNORED AN INDEPENDENT BASIS FOR RELIEF UNDER

28 U.S.C. § 2254(D) AND CONTINUED ITS

TROUBLING RECALCITRANCE IN APPLYING BATSON AND ITS PROGENY.

Batson defined a three-step framework for evaluating whether racial discrimination motivated a peremptory

strike. 476 U.S. at 96-98. Only the third step—where

the trial court must evaluate the proponent’s proffered

race-neutral reason and decide whether the reason

was pretextual—is at issue. Purkett v. Elem, 514 U.S.

765, 767 (1995). In making this determination, “all of

the circumstances that bear upon the issue of racial

animosity must be consulted.” Snyder v. Louisiana,

552 U.S. 472, 478 (2008).

That did not happen here. The State used a series of

questionable tactics to exclude most Black veniremembers from Ramey’s jury; when that strategy

failed against the sole qualified Black potential juror

(Cheryl Steadham-Scott), the State struck her from

the panel—excluding 100% of qualified Black prospective jurors. Ramey’s objection failed when the trial

court accepted the State’s proffered reasoning.

But in so ruling, the trial court failed to take account

of “all. . .the circumstances,” which leaves no doubt

that racial bias was the primary motivation for striking Steadham-Scott, including, inter alia: (1) the State’s

admitted use of disparate questioning, by which it

whittled down the group of qualified Black veniremembers to just Steadham-Scott; (2) the State’s shuffling

of the jury; (3) the State’s claimed reasoning for

striking Steadham-Scott applied as forcefully to Carol

Laza, a white seated juror; and (4) the State’s shifting

explanation for striking Steadham-Scott.

After unsuccessfully appealing his Batson Claim in

the Texas courts, Ramey sought federal habeas relief.

To surmount 28 U.S.C. § 2254(d), Ramey asserted

three legal theories on two independent statutory bases:2

• Texas courts considered justifications for striking Steadham-Scott that the State never

articulated to the trial court (the “First

§ 2254(d)(1) Argument”);

• Texas courts failed to follow clearly established

federal law (Batson and progeny) when, in

assessing whether the strike was pretextual,

they did not consider all available relevant information (the “Second § 2254(d)(1) Argument”);

and

• Given the Texas courts’ failure to consider all

relevant information, their determination that

the strike was not racially motivated rested on

an unreasonable determination of the facts (the

“§ 2254(d)(2) Argument”).

The Fifth Circuit’s opinion addressed the first two

theories, but, as noted below, ignored Ramey’s § 2254(d)(2)

Argument. See infra REASONS I.A. This omission

should concern the Court, especially given the Fifth

Circuit’s prior failures in evaluating Batson claims.

See Miller-El v. Cockrell, 537 U.S. 322 (2003) (“MillerEl I”); see also Chamberlin, 885 F.3d at 845 (Costa, J.,

dissenting) (“[A] high proportion of the recent cases in

which the Supreme Court has found a Batson violation

come from states in our circuit.”). Intervention is

necessary to change this trajectory, correct the injus2

See infra REASONS I.A.

tice done to Ramey, and remove the taint of racial

discrimination from the integrity of the justice system.

A. The Fifth Circuit ignored Ramey’s

§ 2254(d)(2) Argument.

A petitioner surmounts AEDPA’s bar on federal

habeas relief upon showing that a State court’s adjudication of a claim resulted in a decision that was

either: (1) “contrary to, or involved an unreasonable

application of, clearly established Federal law as

determined by this Court” “or” (2) “was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.”

28 U.S.C. §§ 2254(d)(1)-(2) (emphasis added). Each

prong provides an independent basis for relief, and a

petitioner may prevail by satisfying either prong. Id.;

see also McWilliams v. Dunn, 137 S. Ct. 1790, 1792

(2017) (relief under § 2254(d)(1)); Miller-El II, 545 U.S.

at 266 (relief under § 2254(d)(2)).

Ramey sought relief under both prongs of § 2254(d).

See ROA.289; see also Appellant’s Br. 18-19, 21-22;

Appellant’s Reply Br. 30-31. His First and Second

§ 2254(d)(1) Arguments explained how the Texas courts’

adjudication of his Batson Claim was “contrary to, or

involved an unreasonable application of, clearly established Federal law.” ROA.289; see also Appellant’s Br.

18-19, 21-22; Appellant’s Reply Br. 30-31; 28 U.S.C.

§ 2254(d)(1). But Ramey also contended that the Texas

courts’ refusal to consider all available facts relevant

to the Batson Claim resulted in a decision that “was

based on an unreasonable determination of the facts.”

28 U.S.C. § 2254(d)(2); ROA.289 (“The [state court’s]

denial of th[e Batson C]laim is…based on an

unreasonable determination of the facts.”); Appellant’s

Br. 21-22; Appellant’s Reply Br. 31.

Nonetheless, the Fifth Circuit treated Ramey’s

Batson Claim as “present[ing] two primary arguments,”

both based on § 2254(d)(1):

First, Ramey argues that the state habeas

court unreasonably applied clearly

established federal law by considering

justifications for the [Steadham-Scott strike]

that were never articulated at the trial

court…. Second, Ramey argues that the state

habeas court unreasonably applied

federal law because it failed to account for

all relevant facts and circumstances when

assessing whether the State’s strike of

Steadham-Scott was pretextual.

App.C at 119a (emphasis added). The Fifth Circuit

did not acknowledge—much less analyze—Ramey’s

§ 2254(d)(2) Argument. See App.C at 115a-123a.

The Fifth Circuit’s silence on this independent basis

for relief warrants review. At best, the Fifth Circuit’s

omission suggests that it once again failed to understand that for all the deference built into federal

habeas review, “the standard is demanding but not

insatiable.” Miller-El II, 545 U.S. at 240. At worst, it

reflects the Fifth Circuit’s systemic narrowing of the

Court’s Batson jurisprudence. See infra REASONS

I.C. Either way, review is appropriate to prevent

this error from becoming the instrument of Ramey’s

execution and, equally important, to impress upon the

Fifth Circuit the need to follow this Court’s Batson

jurisprudence, to preserve for Americans of all races

the right to trial by an impartial jury.

B. The relevant facts and circumstances

point inexorably to the conclusion that

the State struck Steadham-Scott because

she is Black.

The Court has modeled how to evaluate a state

court’s rejection of a Batson claim challenged as “an

unreasonable determination of the facts in light of the

evidence presented.” Miller-El II, 545 U.S. at 240-41,

253. Had the Fifth Circuit followed that guidance, the

inescapable conclusion is that relief is warranted

under § 2254(d)(2).3

In determining whether a habeas petitioner has

established that the state courts unreasonably determined the facts in accepting the State’s proffered

race-neutral explanation for the challenged strike,4

the reviewing court must examine every fact that was

available to the trial judge. Miller-El II, 545 U.S. at

240; see also Flowers v. Mississippi, 139 S. Ct. 2228,

2243-44 (2019) (reviewing courts “look[] at the same

factors as the trial judge”). The Court has been clear

that “all” circumstances bearing on possible racial

animus must be examined, see Snyder, 552 U.S. at

478, and has specifically identified the following as

relevant:

The Fifth Circuit signaled that it would depart from Batson

and its progeny when, in rejecting Ramey’s Second 2254(d)(1)

Argument, it declined to consider all relevant facts and circumstances because some of those facts had not been argued to the

Texas courts. See App.C at 119a-123a.

Here, the State claimed “[Steadham-Scott’s] questionnaire

clearly indicated that she could not impose the death penalty.”

App.E at 134a.

• Questioning and investigating Black prospective jurors differently than white prospective

jurors, Flowers, 139 S. Ct. at 2243;

• Using “trickery” in questioning Black prospective jurors, id.; Miller-El II, 545 U.S. at 261;

• The prosecutor’s shuffling the venire panel,

Flowers, 139 S. Ct. at 2243; Miller-El II, 545

U.S. at 253-54;

• Comparing Black prospective jurors who were

struck side-by-side with white prospective jurors

who served, Flowers, 139 S. Ct. at 2243;

• Critically examining the State’s shifting explanations or misrepresentations of the record

in defending the strikes during the Batson

hearing, id.; Foster v. Chatman, 578 U.S. 488,

512-13 (2016);

• Comparing (statistically) how frequently the

prosecutor struck Black prospective jurors as

opposed to white prospective jurors, Flowers,

139 S. Ct. at 2243;

• Weighing any other relevant circumstances

that bear on racial discrimination, id. at 2243.

If the evidence persuades the reviewing court that

the state court was “wrong to a clear and convincing

degree” in finding no racial bias behind the challenged

strike(s), then that determination was “unreasonable

as well as erroneous” and habeas relief is warranted

under § 2254(d)(2). Miller-El II, 545 U.S. at 266.

As shown below, an evaluation of all circumstances

available to the Texas courts reveals the State’s proffered reason was pretext: the Steadham-Scott strike

was racially motivated.

1. Ramey established by clear and

convincing evidence that the State’s

strike of Steadham-Scott was racially

motivated.

(a) Disparate questioning.

The State’s voir dire of Black veniremembers differed from its inquiry of white panelists. The State

now defends that disparate questioning was designed

to “ferret out” “a bias against the State[,] flowing from

their perceived mistreatment at the hands of the

State, because of their race.” ROA.1631 (emphasis in

original). This admission is deeply troubling because,

inter alia, it is apparent the tactic was used to manufacture cause for a challenge of otherwise qualified

Black veniremembers. See, e.g., ROA.4658 (using

religion to goad a Black veniremember into an answer

justifying a cause challenge); see also Appellant’s Br.

48-54. The State also employed “trickery” during voir

dire to achieve the same goal. See, e.g., ROA.4611-12

(attempting to lead a Black veniremember into endorsing a higher standard for a death penalty case); see

also Appellant’s Br. 52-54. Notably, the State asked

Black panelists if they thought O.J. Simpson or

Michael Jackson were guilty, made much of the role

of religion and the death penalty (while offering only

white veniremembers an avenue for rehabilitation),

and, depending on the panelist’s race, changed how it

described the burden of proof, from educating to interrogating. See, e.g., ROA.4688-89 (O.J. Simpson and

Michael Jackson); ROA.3885, 4583, 4658 (questioning

Black and non-Black veniremembers differently about

religion and the death penalty); ROA.4589, 4689-90

(questioning Black and non-Black panelists differently

about the burden of proof).

The State’s disparate questioning had a predictably

disparate effect. After 135 persons had been questioned, 11 jurors had been impaneled but all Black

panelists had been excluded for cause.5 The disparate

questioning used to eliminate all Black panelists is

“probative of discriminatory intent.” Flowers, 139 S.

Ct. at 2247.

(b) To stack the deck, the State

shuffled the jury.

To fill the last three seats, the trial court pulled a

second venire panel at random from individuals who

reported for the county’s “central jury pool.” ROA.4288,

4327. The trial court qualified the second panel; nothing

indicates that Ramey or the State attended that

session or had any information about the new panelists until they entered the courtroom. ROA.4321-29.

Once the new panelists were seated in court, the

parties could see that four of the first 10 to be questioned were Black. ROA.267, 6065-89. The State promptly

requested a jury shuffle to re-order the panelists.

ROA.4327-29. The result was striking: where four of

the first 10 panelists had been Black, now just two

Black veniremembers remained among the first 30

panelists. ROA.267, 6065-89. The Court has recognized that seeking a shuffle “when a predominant

number of African-Americans were seated in the front

of the panel. . .raise[s] a suspicion that the State

sought to exclude African-Americans from the jury.”

Miller-El I, 537 U.S. at 346.

Two Black veniremembers were excused because they were

distantly related to Ramey. ROA.3611-12, 3823.

and trickery continued with

Steadham-Scott.

Steadham-Scott was the second veniremember questioned in the second panel. As with the first panel, see

supra REASONS I.B.1.(a), the State continued its

disparate questioning with Steadham-Scott. Hinting

at racial tropes and stereotypes of fatherless families

and lax discipline, the State asked if Steadham-Scott’s

“dad [was] in the picture” when she was growing up

and whether she “g[o]t any spankings” as a child.

ROA.4683-84. Laza and other seated white jurors

were not asked such questions. See, e.g., ROA.4708-11.

Instead of being given a reassuring and helpful education, like white panelists, see, e.g., ROA.3768-69 (example

soliloquy to white juror Jan Groh), Steadham-Scott

faced a series of confusing questions about burden of

proof, ROA.4689-90. After asking 175 questions—

more than the white panelists generally faced—

without eliciting any basis for a cause challenge, the

State moved to emotional and overtly-racial questions.

See, e.g., ROA.4689 (asking Steadham-Scott’s opinion

on the guilt of O.J. Simpson and Michael Jackson). Of

note, the State asked Steadham-Scott if she thought

she was transferred at work “because [she is]

Black[.]” ROA.4688. See supra REASONS I.B.1.(a).

(d) The State’s claimed reasons for

striking Steadham-Scott applied

equally to a seated white juror.

Unable to manufacture cause to remove SteadhamScott, the State was forced to exercise a peremptory

strike. ROA.4691. The trial court denied Ramey’s

subsequent Batson challenge. App.E at 133a-34a.

A comparison of Steadham-Scott’s and Laza’s

questionnaires and voir dire responses shows that the

State’s only substantive proffered reason for striking

Steadham-Scott—“her questionnaire clearly indicated

that she could not impose the death penalty”—was

pretextual. As shown below, Laza’s questionnaire

responses reflected more reservations about imposing

the death penalty than Steadham-Scott’s.

Juror Questionnaire

Laza

59: Assume you are

on a jury to determine the sentence

for a defendant who

has already been convicted of a very

serious crime. If the

law gives you a

choice of death or

life imprisonment, or

some other penalty:

(Check only one):

There are some kinds

of cases which I

know I could not

vote for the death

penalty even if the

law allowed me to,

but others in which

I would be willing to

consider voting for

it.”

62: Whether because

of religious, moral, or

personal beliefs, do

you feel you would

have difficulty ‘standing in judgment’ of

another human being?

62 Follow-Up: If

“Yes”, do you feel it

would affect your

ability to serve as a

fair and impartial

juror in this case?

Steadham-Scott

I would consider

all of the penalties provided by

law and the facts

and circumstances of the particular case.

ROA.6697

ROA.6154

(emphasis added).

Yes.

No.

ROA.6157

ROA.6700

Yes.

ROA.6157

Comparing the State’s voir dire of Laza and SteadhamScott only highlights how differently white and Black

panelists were questioned. Laza fielded 31 questions,

while Steadham-Scott answered 237 questions (7.6

times more than Laza). ROA.4708-11, 4682-90. Unlike

Steadham-Scott, Laza was not questioned about

her upbringing, family, or views of the law. Compare

ROA.4708-11 (Laza), with ROA.4683-90 (SteadhamScott). Nor was Laza asked explicitly about race or

racially-charged prosecutions. Compare ROA.4708-11

(Laza), with ROA.4688-89 (Steadham-Scott). See

Flowers, 139 S. Ct. at 2243.

(e) The State’s explanation for striking Steadham-Scott has changed

significantly over the years.

The only cognizable reason the State offered the

trial court for striking Steadham-Scott was that

“her questionnaire clearly indicated that she could

not impose the death penalty.” App.E at 134a. But

this explanation has evolved to Steadham-Scott’s

“ambivalence regarding inflicting the death penalty,”

“inconclusive opinions” on the death penalty, and

Steadham-Scott’s purported confusion about the requisite burden of proof. ROA.2983, 2064-65. These

shifts in the State’s defense of its strike are directly

pertinent to the Batson analysis. Foster, 578 U.S. at

512-13.

* * *

Ramey presented evidence bearing on almost every

circumstance the Court has identified as relevant in

evaluating whether racial bias underpinned the State’s

strike of Steadham-Scott. See supra REASONS I.C.2.a-g.

This evidence cannot be ignored. Miller-El II, 545 U.S.

at 266. Relief is warranted because—considering

the clear and convincing evidence before the Fifth

Circuit—the Texas courts’ Batson decision was based

on an unreasonable determination of the facts. 28

U.S.C. § 2254(d)(2); Miller-El II, 545 U.S. at 266.

C. The Fifth Circuit’s improper treatment

of Ramey’s Batson Claim is consistent

with its troubling history of systematic

departures from the Court’s Batson

jurisprudence.

“[R]acial discrimination in the jury system pose[s] a

particular threat both to the promise of [equal protection under the Fourteenth] Amendment and to the

integrity of the jury trial.” Pena-Rodriguez v. Colorado,

137 S. Ct. 855, 867 (2017). The Court established the

Batson framework to “end[] the widespread practice in

which prosecutors could (and often would) routinely

strike all black prospective jurors in cases involving

black defendants.” Flowers, 139 S. Ct. at 2242. “In the

decades since Batson, this Court’s cases have vigorously enforced and reinforced the decision, and guarded

against any backsliding.” Id. at 2243.

Unfortunately, the Fifth Circuit has not consistently

embraced the Court’s “vigorous enforce[ment]” of Batson

and its progeny, as evidenced by a series of opinions

that misunderstand or unjustifiably narrow this Court’s

precedents. For example, this Court’s Miller-El decisions arose from the Fifth Circuit’s repeated refusal to

properly analyze the petitioner’s Batson claim. See

Miller-El II, 545 U.S. at 235; Miller-El I, 537 U.S. at

326. Repeated intervention was necessary to guard

against any backsliding from Batson. Miller-El II, 545

U.S. at 266; Miller-El I, 537 U.S. at 346-48.

Regrettably, more than a decade after Miller-El II,

problems with the enforcement of Batson continue in

the Fifth Circuit. Consider, for example, Chamberlin,

885 F.3d at 835. After conducting the thorough factual

and legal analysis required by this Court’s Batson

jurisprudence, the District Court concluded the State’s

claimed race-neutral reasons for a peremptory strike

were pretextual. See Chamberlin v. Fisher, No. 2:11CV-72-CWR, 2015 WL 1485901, at *15-16 (S.D. Miss.

Mar. 31, 2015); compare id. with, Miller-El II, 545 U.S.

at 239-40.

The Fifth Circuit reversed, allowing the State to

offer a previously unasserted argument to justify the

strike and warning the District Court against “sua

sponte” comparative juror analysis. Chamberlin, 885

F.3d at 839-40. This decision has created a split of

authority concerning how to apply Batson and MillerEl, as two other Circuits have expressly rejected the

Fifth Circuit’s decision to allow the State to defend a

strike based on purported race-neutral reasons articulated only “after the fact.” See, e.g., Love v. Cate, 449

Fed. Appx. 570, 572-73 (9th Cir. 2011); United States

v. Taylor, 636 F.3d 901, 905 (7th Cir. 2011).

The Fifth Circuit’s divergence from the Court’s

Batson jurisprudence continued in Sheppard v. Davis,

967 F.3d 458 (5th Cir. 2020). Instead of relying on

precedent that clearly establishes that the reviewing

court must look to the totality of the circumstances in

evaluating a Batson claim, the Fifth Circuit took a

narrow approach that is inconsistent with the Court’s

Batson jurisprudence. See Flowers, 139 S. Ct. at 2243

(observing the ultimate question is “whether racial

discrimination occurred” and not if it can be explained).

Although subtle, this too represents a “backslide” from

the Court’s Batson jurisprudence. Id.

The Fifth Circuit continued its erosion of Batson in

Broadnax v. Lumpkin, 987 F.3d 400 (5th Cir. 2021). In

affirming a denial of Broadnax’s habeas petition, the

Fifth Circuit refused to consider new evidence from

the State’s file—a spreadsheet referencing panelists’

race that the State first disclosed at federal

habeas—which provided direct proof of the trial

prosecutors’ discriminatory intent during jury

selection. Id. at 406-07. In so doing, the Fifth Circuit

again departed from the letter and spirit of Batson. See

Foster, 578 U.S. at 501 (emphasizing that reviewing

courts “cannot blind ourselves” to directly probative

evidence).

Ramey’s case falls solidly within the Fifth Circuit’s

troubling pattern of limiting Batson. In Miller-El,

Chamberlin, and Sheppard, the Fifth Circuit limited

legal avenues to recognize Batson violations. In Broadnax,

it circumscribed the facts a reviewing court can

consider in evaluating a Batson claim. Here, the Fifth

Circuit did both—limiting Ramey’s legal avenues by

ignoring an independent basis for relief and failing to

evaluate all the relevant facts as required by Miller-El

II.6 The net effect of these limitations, more than 35

years after Batson, is to erode equal protection under

the law by tolerating manifest racial discrimination

in jury selection. This backsliding pattern must be

addressed by the Court to preserve constitutional

rights that are essential to the public integrity of our

justice system. See Flowers, 139 S. Ct. at 2243.

Here, much as in Chamberlin, the Fifth Circuit also signaled

it would consider only a subset of the relevant facts. Compare

Ramey, App.C at 119a-123a (ignoring any facts not argued before

the last state court), with Miller-El II, 545 U.S. at 239-40

(requiring evaluation of all circumstances known to the state trial

court and presented to the federal habeas court).

What emerges from these decisions, including

Ramey, is a systematic misunderstanding in the Fifth

Circuit of both the letter and spirit of the Court’s

Batson jurisprudence. Review is necessary to coursecorrect and prevent “the very integrity of the courts

[from being] jeopardized,” because prosecutorial discrimination “invites cynicism respecting the jury’s

neutrality. . .and undermines public confidence in

adjudication.” Miller-El II, 545 U.S. at 238.

II. RAMEY’S MITIGATION CLAIM RAISES

IMPORTANT ISSUES ABOUT THE IMPLICATIONS OF MARTINEZ/TREVINO ON

WHICH LOWER COURTS ARE DIVIDED.

Since Martinez and Trevino, federal courts have

grappled with how to treat petitioners like Ramey,

whose state habeas counsel only barely and inadequately raised IATC claims. Such petitioners are

virtually identical to Martinez/Trevino petitioners,

whose counsel failed to raise such claims at all, except

that Pinholster appears to foreclose consideration of

new evidence supporting their IATC claims where

Undeveloped IATC Claims were presented at state

collateral-review proceedings. The Court should articulate a narrow and logical equitable exception to

Pinholster putting petitioners like Ramey on equal

footing with Martinez/Trevino petitioners. Alternatively,

the Court should confirm that Undeveloped IATC

Claims can be fundamentally altered by significant

new evidence, rendering those claims unexhausted and

eligible for Martinez/Trevino. Accordingly, the Court

should grant review and hold that the Fifth Circuit

erred in denying Ramey’s Application for Certificate of

Appealability (“ACOA”) on his Mitigation Claim.

A. A narrow equitable exception

Pinholster is warranted.

1. The Circuits have struggled to navigate the tension between Pinholster’s

inflexible rule and the equitable

considerations underlying Martinez/

Trevino.

Under long-standing precedent, ineffective assistance by state collateral-review counsel typically does

not excuse a procedural default. Coleman v. Thompson,

501 U.S. 722, 752-54 (1991). In Martinez/Trevino, the

Court created an equitable exception to this rule to

protect petitioners who have (1) substantial IATC

claims (2) that were defaulted by ineffective state

habeas counsel (3) at an initial collateral-review

proceeding (4) where state law formally or functionally

requires that IATC claims be raised at that juncture.

Martinez, 566 U.S. at 17; Trevino, 569 U.S. at 423, 429.

Since those decisions, federal courts have struggled

with the inequity of barring review of IATC claims

raised by petitioners like Ramey, who are identical

to Martinez/Trevino petitioners, with one doctrinally

significant—but equitably insignificant—exception:

unlike state habeas counsel for Martinez/Trevino petitioners, who failed to raise IATC claims at all, state

habeas counsel for Ramey-like petitioners raised such

claims but failed to adequately develop or support

them. E.g., Gallow v. Cooper, 570 U.S. 933 (2013)

(Breyer & Sotomayor, JJ., regarding denial of certiorari) (noting that petitioners whose counsel failed to

support IATC claims at initial-review collateral proceedings are “indistinguishable from” Martinez/Trevino

petitioners). The main hurdle to equitable treatment

for Ramey and petitioners like him is Pinholster,

which appears to foreclose consideration of evidence

not before the state court when it adjudicated the

IATC claim on the merits, no matter how derelict state

habeas counsel may have been in presenting that

claim.

Some Circuits have weighed in on the side of

equity, recognizing the unfairness of treating raisedbut-botched IATC claims as meaningfully different

from IATC claims that were never raised at all. See

Dickens v. Ryan, 740 F.3d at 1319-20 (holding new

evidence fundamentally altered IATC claim presented

in state habeas, rendering it unexhausted, procedurally defaulted, and eligible for Martinez/Trevino);

Vandross v. Stirling, 986 F.3d 442, 451 (4th Cir. 2021)

(stating Pinholster does not apply when “‘new

evidence. . . ‘fundamentally alter[s]’ the ‘substance’ of

the claim so as to make the claim a new one’ that was

not presented to the state court”) (quoting Moore v.

Stirling, 952 F.3d 174, 182 (4th Cir. 2020)).

Other Circuits have felt constrained to enforce a

regime of inflexibility, reading Pinholster as requiring

them to turn a blind eye to new evidence, no matter

how strong. See, e.g., Carter, 787 F.3d at 1289-90

(stating that although new evidence was “compelling,”

Pinholster barred its consideration). The Fifth and

Sixth Circuits’ approach, on the other hand, has been

inconsistent, highlighting the need for this Court to

intervene. See infra n.7; compare Moore v. Mitchell,

708 F.3d 760, 785 (6th Cir. 2013) (refusing to consider

new evidence in support of Undeveloped IATC Claim),

with Rogers v. Mays, 814 Fed. Appx. 984, 987 (6th Cir.

2020) (granting COA on whether Undeveloped IATC

Claim was procedurally defaulted or adjudicated on

the merits).

In some Circuits, then, petitioners like Ramey have

a path to vindicate their right to effective assistance of

trial counsel. In others, by contrast, the courthouse

doors are shut. And in the Fifth Circuit, caselaw on the

issue is so muddled that whether petitioners like

Ramey have an avenue to adjudicate IATC claims may

depend entirely on the panel they draw. This Court is

the sole authority that can resolve this disparity and

resolve the tension between Pinholster and Martinez/

Trevino by recognizing that the same considerations

that demanded creation of the Martinez/Trevino exception apply equally in circumstances like Ramey’s. To

ensure fairness and equal treatment, the Court should

articulate a virtually identical, narrow exception to

Pinholster.

2. The equitable concerns behind

Martinez/Trevino apply just as

powerfully here.

Martinez/Trevino provide equitable relief where

federal review of a procedurally defaulted, substantial

IATC claim would otherwise be barred. Several considerations weigh in favor of the Martinez/Trevino exception:

First, the importance of the right to effective

assistance of trial counsel—a “bedrock principle” of

justice and the lynchpin of our adversarial system—

which ensures that defendants’ rights are protected.

Martinez, 566 U.S. at 12.

Second, the recognition that prisoners need effective

counsel to adequately develop and present substantial

IATC claims. Id. at 11-12. Prisoners lack the training,

experience, and skills necessary to show trial counsel’s

errors were not strategic choices, and they lack the

resources and freedom to conduct any meaningful

investigation.

Third, the acknowledgment that direct appeal and

initial-review collateral proceedings are substantially

equivalent where petitioners cannot raise IATC claims

on direct review, and the awareness that ineffective

assistance in the former would constitute cause for

excusing procedural default while ineffective assistance in the latter would not. Id. But in both

situations, no advocate has prepared a case for IATC

and no court has adjudicated the claim, leaving

petitioners without prior briefs or opinions to guide

them and in need of adequate counsel to effectively

develop and litigate those claims. Id.

Finally, the inequitable result of failing to provide

a relief valve to Coleman’s rule. When petitioners

cannot raise substantial IATC claims until collateral

review, and when collateral-review counsel is ineffective, no court will ever consider the petitioner’s claim.

Id. at 10-11, 14. And if petitioners have no forum in

which to vindicate violations of their right to effective

trial counsel, they effectively, have no such right at all.

These considerations apply equally where IATC

claims were nominally raised in an initial-collateralreview proceeding but inadequately supported by

ineffective state habeas counsel. See Gallow, 570 U.S.

at 933 (“A claim without. . .evidence to support it

might as well be no claim at all.”). Indeed, the sole

difference between Ramey’s situation and the one the

Court confronted in Martinez/Trevino is the way in

which collateral-review counsel was ineffective: one

failed to raise a claim entirely, while the other raised

the same claim deficiently, without conducting the

investigation necessary to support it. The net effect is

the same: collateral-review counsel’s deficient performance deprived petitioners of any court review of their

substantial IATC claims. Here, as in Martinez/

Trevino, inflexible application of a rule prevents

petitioners from vindicating their constitutional right

to effective assistance of trial counsel. This Court

should not tolerate such an illogical and unfair result.

3. An equitable exception would apply

here.

Adopting the rationale underlying Martinez/Trevino,

an exception to Pinholster’s evidentiary bar should

exist where: (1) the IATC claim is “substantial”;

(2) new evidence was not presented at the state

collateral-review proceeding because of collateral-review

counsel’s ineffectiveness; (3) the state collateral-review

proceeding was the “initial” review proceeding for the

IATC claim; and (4) state law requires, formally or

functionally, that an IATC claim be raised at that

juncture. Trevino, 569 U.S. at 423, 429.

Ramey’s Mitigation Claim satisfies these elements.

First, the Mitigation Claim is substantial. To

succeed on an IATC claim, a petitioner must show: (1)

counsel’s performance fell below an objective standard

of reasonableness and (2) prejudice from counsel’s

deficient performance. Strickland v. Washington, 466

U.S. 668, 688, 692 (1984).

Here, even viewed through a lens of deference, trial

counsel’s performance fell far below any standard of

reasonableness. Counsel has an “obligation to conduct

a thorough investigation of the defendant’s background,”

Porter v. McCollum, 558 U.S. 30, 39 (2009) (citing

Williams v. Taylor, 529 U.S. 362, 396 (2000)); Wiggins

v. Smith, 539 U.S. 510, 524 (2003), and to pursue any

“red flags” and potentially aggravating circumstances,

Rompilla v. Beard, 545 U.S. 374, 385, 390-91 & n.8

(2005).

Despite this duty, Ramey’s trial counsel conducted

no independent investigation. ROA.390-92. This failure

meant substantial mitigation evidence was never

uncovered and or presented to the jury, including

Ramey’s:

• mother’s drug use, ROA.458;

• unstable

and

ROA.457-59;

impoverished

childhood,

• early exposure to drug abuse and criminal

activity, id.;

• verbal, psychological, and physical abuse from

caretakers, ROA.459, 460, 472, 544;

• emotional and developmental disorders and

“borderline intellectual functioning,” ROA.46164, 481-85, 505-22 545; and

• abandonment by father figures, ROA.411, 45761, 464-65.

Trial counsel’s failure to investigate and uncover

these critically important mitigating facts crippled the

defense and prevented them from: (1) eliciting useful

testimony from the only witnesses they called during

the punishment phase (including their own “future

dangerousness” expert, a geriatrics expert lacking any

relevant expertise), see ROA.394, 456-68, 535, 537,

5145-48, and (2) adequately defending Ramey during

the punishment phase, ROA.400, 516, 548, 5161. For

example, had trial counsel investigated the sexual

assault charges wrongfully brought against Ramey,

they would have discovered and presented exonerating

witnesses who would have neutralized this otherwise

highly prejudicial evidence. ROA.400, 516, 548.

Compounding these deficiencies, trial counsel failed

to effectively: prepare their witnesses, ROA.467, 53536, 396-535, 397, 537; challenge the State’s evidence,

see ROA.5054, 5057, 5061, 5061, 5088-89, 5098-99,

5104; and object when the State elicited inflammatory

testimony and made inflammatory, prejudicial, and

false statements during the punishment phase, see

ROA.5074, 5174-82.

Trial counsel’s deficient performance prejudiced

Ramey. Prejudice exists where “there is a reasonable

probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Rompilla, 545 U.S. at 390. Here, had the jury

heard the mitigating evidence that a basic investigation would have uncovered, it is reasonably likely that

Ramey’s life would have been spared. Ramey’s own

unqualified expert told the jury—wrongly—that

Ramey enjoyed a stable childhood, free from abuse,

and presented a single (not fully developed) mitigation

theory regarding Ramey’s intellectual disabilities.

ROA.565. It is reasonably probable that had the jury

been presented with even some of the mitigation

evidence that reasonably competent trial counsel would

have uncovered, the jury would have found another

sentence appropriate.

Second, new evidence was not presented to the

state habeas court because state habeas counsel was

ineffective. Under Texas law, state habeas counsel had

a duty to investigate, exercise reasonable diligence

in uncovering the factual bases for all claims, and

discover any new mitigating evidence, Tex. Code

Crim. Proc. art. 11.071 §§ 3, 5(e); Ex parte Reynoso,

257 S.W.3d 715, 720 n.2 (Tex. Crim. App. 2008);

ROA.1373-78. State habeas counsel utterly failed to

investigate, even though another lawyer alerted him

to trial counsel’s deficient mitigation investigation.

See ROA.1893-94, 2550, 2555; see also ACOA at 76. As

a result, state habeas counsel could allege only a brief,

seven-paragraph penalty phase IATC claim focused

exclusively on trial counsel’s selection of an unqualified and unprepared future dangerousness expert. See

ROA.5859-62.

State habeas counsel’s deficient performance prejudiced Ramey. Given the substantial nature of his

Mitigation Claim, had state habeas counsel conducted

an adequate investigation and presented trial counsel’s

numerous deficiencies, it is reasonably likely that the

state habeas proceedings would have had a different

outcome.

Third and fourth, the state habeas proceeding was

the initial collateral-review proceeding for Ramey’s

IATC claim, which Texas functionally requires be

raised at state habeas. Trevino, 569 U.S. at 413, 428.

Because Ramey satisfies the elements of the proposed narrow exception to Pinholster, his case presents

an opportunity for the Court to put petitioners like

him on equal footing with Martinez/Trevino petitioners, as equity demands.

B. Alternatively, the Court should confirm

that new evidence can fundamentally

alter an Undeveloped IATC Claim, rendering it unexhausted and potentially

eligible for merits review under

Martinez/Trevino.

The Court has long recognized that significant new

evidence can fundamentally alter a claim presented in

state court, rendering it unexhausted. See Vasquez v.

Hillery, 474 U.S. 254, 257-60 (1986).

Following this doctrine, several Circuits have

acknowledged, explicitly or implicitly, that substantial

new evidence can fundamentally alter an IATC claim

ineffectively presented in state court, rendering it

unexhausted, and therefore making it eligible for

Martinez/Trevino. See Vandross, 986 F.3d at 451;

Dickens, 740 F.3d at 1319-20.7

Accordingly, petitioners like Ramey in the Fourth

and Ninth Circuits can obtain judicial review of IATC

claims supported by significant new evidence, while

petitioners in other Circuits with identical claims have

no avenue to federal court review. The Court should

grant certiorari to adopt the “fundamental alteration”

approach and ensure all similarly situated petitioners

have access to federal court review.

Fifth Circuit panels have inconsistently treated the fundamental alteration approach. Earlier panels recognized that

substantial new evidence can fundamentally alter Undeveloped

IATC Claims and make them unexhausted claims eligible for

Martinez/Trevino. See Escamilla v. Stephens, 749 F.3d 380, 395

(5th Cir. 2014); Sells v. Stephens, 536 Fed. Appx. 483, 490 (5th

Cir. 2013).

In 2017, consistent with these early opinions, another panel

held that the fundamental alteration doctrine survived Pinholster

and new evidence fundamentally altered an Undeveloped IATC

Claim. Sorto v. Davis, 859 F.3d 356, 362-63 (5th Cir. 2017). That

opinion was vacated, and, on rehearing, the panel was silent on

the issue, casting doubt on whether the approach remains viable

in the Circuit.

Nevertheless, in 2020, another panel granted a COA on an

IATC claim, finding that reasonable jurists could debate whether

new evidence fundamentally altered an Undeveloped IATC

Claim. Nelson v. Davis, 952 F.3d 651, 671-72 (5th Cir. 2020).

Recently, however, a different panel suggested the doctrine is

a dead letter in the Fifth Circuit because the Circuit’s “postPinholster precedent offers no support for it.” Broadnax v.

Lumpkin, 987 F.3d 400, 407-08 (5th Cir. 2021). Given the

Circuit’s inconsistent treatment of the approach, it is unsurprising that the court below ignored Ramey’s fundamental

alteration argument in denying his ACOA. See App.B at 107a.

1. Ramey’s new evidence fundamentally altered the penalty phase IATC

claim presented to the state habeas

court.

This Court has not offered guidance for lower courts

to follow in determining when new evidence fundamentally alters an IATC claim. See Pinholster, 563

U.S. at 213 n.5 (acknowledging dissent’s argument

that new evidence can “give[] rise to an altogether

different claim” but declining to determine “where to

draw the line between new claims and claims adjudicated on the merits”). The Fifth Circuit, however, has

developed a test for evaluating this issue in the

exhaustion context. Under that test, new evidence

fundamentally alters a claim if it “places [the] claim[]

in a ‘significantly different legal posture.’” Sells v.

Stephens, 536 Fed. Appx. 483, 490-91 (5th Cir. 2013).

Put differently, a claim is fundamentally altered

where there is a “substantial amount[] of new evidence” that cannot be “derived from the state court

record” and that “alters the nature of [the petitioner’s]

claim,” and where “the claims and allegations [in state

proceedings] were conclusory and undeveloped.” Id. at

491. Cf. Conner v. Quarterman, 477 F.3d 287, 292 (5th

Cir. 2007) (holding that new evidence did not fundamentally alter claim where it was largely duplicative

of evidence presented to the state court).

Here, Ramey’s new evidence fundamentally altered

his Undeveloped IATC Claim, rendering it unexhausted, procedurally defaulted, and subject to

Martinez/Trevino. That claim did not (1) identify the

mitigation theories that trial counsel should have

investigated, (2) state what a reasonable investigation

would have found, (3) name the witnesses that should

have been called, (4) demonstrate that they would

have testified, (5) demonstrate what they would have

testified to, or (6) demonstrate that their testimony

would have been favorable to Ramey. See ROA.2861.

Without such evidence, the Undeveloped IATC Claim

was doomed from the start. Miller v. Dretke, 420 F.3d

356, 361 (5th Cir. 2005); Gregory v. Thaler, 601 F.3d

347, 352 (5th Cir. 2010).

Ramey’s new evidence corrected each of these

deficiencies, placing the new Mitigation Claim in a

fundamentally stronger legal position. For example,

Ramey presented a wealth of evidence to the District

Court that trial counsel failed to: conduct any mitigation investigation, see ROA.391, 399, 551-52, 600-07;

adequately prepare or select mitigation witnesses, see

ROA.395-96, 467, 534-36, 555-58, 5144-48; investigate,

discover, and present additional mitigation theories,

see ROA.238-40, 409-18, 457-65, 544-45, identify mitigation witnesses who should have been called to testify,

see ROA.457-59, 461-64, 467, 532, 540-41, 544-46; or

adequately investigate and defend against the prosecution’s evidence, see ROA.400-01, 404-05, 530-31, 548.

By correcting the grave deficiencies of the superficial and conclusory Undeveloped IATC Claim, Ramey’s

new evidence fundamentally altered that claim, creating a new claim demonstrating exactly what trial

counsel should have investigated and presented and

how Ramey’s chances at a life sentence would have

dramatically increased as a result. Accordingly, his

fully developed Mitigation Claim was never presented

to the state court and is unexhausted and procedurally

defaulted.

2. Ramey’s

fundamentally

altered

Mitigation Claim is unexhausted,

procedurally defaulted, and subject

to Martinez/Trevino.

Ramey’s Mitigation Claim is procedurally defaulted,

but he can overcome that default. Ramey meets all the

requirements to establish cause under Martinez/

Trevino, and the Fifth Circuit erred in denying Ramey

a COA on the claim. See supra PROCEDURAL

HISTORY. Indeed, in denying a COA on this issue,

the Fifth Circuit did not even acknowledge Ramey’s

fundamental alteration argument. See App.B.

Absent explicit guidance from this Court that the

fundamental alteration doctrine applies to an Undeveloped IATC Claim, the Court risks continued inequitable

treatment of petitioners like Ramey across different

circuits—or even within the same one.

The Court should intervene to clarify that a federal

habeas court may consider new evidence where new

evidence fundamentally alters an Undeveloped IATC

Claim and the petitioner shows that the Martinez/

Trevino exception applies.

CONCLUSION

For the foregoing reasons, Ramey respectfully asks

this Court to grant his petition for a writ of certiorari.

Respectfully submitted,

RONALD A. MCINTIRE

Counsel of Record

ALISHA C. BURGIN

CATHERINE J. DEL PRETE

PERKINS COIE LLP

1888 Century Park E.

Suite 1700

Los Angeles, CA 90067-1721

(310) 788-9900

RMcIntire@perkinscoie.com

ABurgin@perkinscoie.com

CDelPrete@perkinscoie.com

JESSICA R. FRENKEL

PERKINS COIE LLP

1900 Sixteenth St., Ste. 1400

Denver, CO 80202-5255

(303) 291-2300

JFrenkel@perkinscoie.com

JONATHAN P. GODDARD

PERKINS COIE LLP

1201 Third Ave., Ste. 4900

Seattle, WA 98101-3099

(206) 359-8000

JGoddard@perkinscoie.com

Counsel for Petitioner

Ker’Sean Olajuwa Ramey

December 23, 2021

APPENDIX

APPENDIX A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

[Filed July 11, 2018]

————

Civil Action No. 6:13-CV-43

————

KER’SEAN OLAJUWA RAMEY,

Petitioner,

vs.

LORIE DAVIS,

Respondent.

————

MEMORANDUM AND ORDER

DENYING RAMEY’S PETITION FOR

A WRIT OF HABEAS CORPUS

Ker’sean Olajuwa Ramey, a Texas inmate incarcerated under a capital conviction and death sentence,

filed a federal petition for a writ of habeas corpus on

November 13, 2013. (Dkt. No. 7). Ramey alleges that

constitutional error infected his trial with unfairness.

Having considered Ramey’s claims, the state court

record, the pleadings, the evidence, and the applicable

law, the Court now finds that Ramey is not entitled to

federal habeas relief for the reasons provided herein.

FACTUAL AND PROCEDURAL BACKGROUND

On December 17, 2005, the State of Texas indicted

Ramey for the offense of capital murder in the 24th

Judicial District Court of Jackson County Texas. The

four-count indictment charged Ramey for his role in

the murders of Sam Roberts, Tiffany Peacock, and

Celso Lopez. After a change of venue, Ramey stood

trial in Victoria County, Texas.

The State based its case against Ramey on testimony from those to whom he admitted involvement

in the murders, as well as his co-defendant LeJames

Norman’s account of the crime. On direct appeal, the

Texas Court of Criminal Appeals summarized the trial

testimony:

The bodies of Celso Lopez, Tiffany Peacock,

and Sam Roberts were found in Roberts’s

residence by his parents on August 25, 2005.

Lopez had been shot four times: once in the

cheek and three times in the back of the head.

Peacock was shot twice in the head. Roberts

was shot five times: once in the chest, once in

the neck, and three times in the back of the

head. They had been killed on or about

August 24.

Stacy Johnson, [Ramey’s] former girlfriend,

testified that he called her at 12:29 a.m. and

12:59 a.m. on August 25. He went to her

house after their conversation, and slept

there until shortly before 6 a.m. She said that

he seemed “distant.”

Two days later, Johnson accompanied [Ramey]

to his house where he dug up “something”

from his backyard. Johnson drove him to a

dam. While Johnson was driving, [Ramey]

called his former step-father, Lonny Lyte.

(Both Johnson and Lyte testified about this

conversation.) [Ramey] asked Lyte, “If you

was to kill somebody, what would you do with

the guns?” Lyte responded by saying that he

would throw them in the river.

When they reached the dam, Johnson saw

[Ramey] throw two pistols into the water.

She later returned to the dam with the police

and pointed out to the dive team the place

where she remembered him throwing the

pistols. They were found in the approximate

location she indicated.

After he threw the pistols in the water,

[Ramey] admitted to Johnson that he had

committed a murder. He first said, “You know

what this is about,” to which she responded

in the affirmative. When they returned to her

house, he admitted to everything in detail,

and he threatened to kill her if she told

anyone.

A firearms examiner from the Department of

Public Safety testified that markings on the

bullets that were recovered from the victims’

bodies were consistent with the bullets having been fired from the pistols that were

recovered from the water at the dam.

The pistols had been stolen from [the Nairn

family] residence on August 19, 2005. The

owner of the pistols identified them, and one

of the pistols was further identified by records of registration. Gerald Manzanalez and

Christopher Times testified that, on August

19, they and [Ramey] had broken into a residence where they stole the pistols and some

other firearms.

LeJames Norman testified that, on August

24, he and [Ramey] had gone to the scene of

the murders, Sam Roberts’s residence. Their

objective was to steal 100 kilograms of cocaine

they believed to be inside.

He said that he and [Ramey] prepared by

stealing masks from a discount store. The

jury saw the store’s surveillance videotape

which showed them stealing the masks at

9:22 p.m. on August 24.

Norman testified that they also prepared by

wrapping tape around their shoes so as not

to leave a trail. They donned their masks

and cocked their guns before entering the

house. They knocked on the door. Celso Lopez

answered, and the two men forced their

way inside. Norman held a gun on Lopez,

while [Ramey] ran to the rear of the home,

where he hoped to find the cocaine. As

[Ramey] searched for the drugs, Norman

accidentally shot Lopez in the cheek. [Ramey]

quickly returned to the front room and forced

Lopez, bleeding and begging for help, to move

to a bedroom and lie on the floor.

At that point Roberts came home, accompanied by Peacock (his girlfriend). When she

saw what was happening, Peacock panicked

and tried to run away. Norman grabbed her

and forced her to her knees inside the house,

near the front door. As she was bending

down, he shot her in the back of the head.

Seeing his girlfriend fall limp to the floor,

Roberts attacked Norman. The two men

“tussled” in the kitchen until [Ramey] shot

Roberts, freeing Norman who immediately

shot Roberts several more times while he lay

on the floor. [Ramey] then returned to the

bedroom and shot Lopez in the back of the

head as he lay on the floor.

[Ramey] and Norman left the house. As they

walked away, Norman realized that he had

left his police scanner inside the house.

[Ramey] quickly returned to retrieve the

scanner. While inside, he shot the victims

several more times to ensure that they were

dead.

[Ramey] and Norman did not find any

cocaine.

Eight other witnesses testified that [Ramey]

had admitted to them that he had participated in the murders.

Ramey v. State, 2009 WL 335276, at *3-5 (Tex. Crim.

App. 2009).

The defense rested without calling any guilt/innocence witnesses or presenting any evidence.1 The jury

instructions authorized Ramey’s conviction: (1) for

“caus[ing] the death of Sam Roberts and/or Tiffan[y]

Peacock and/or Celso Lopez by shooting them with a

firearm” in the course of a robbery or burglary or (2)

for assisting Norman in the murders under Texas’ law

of parties.2 Clerk’s Record at 172-73. The jury found

Ramey retained Joseph R. Willie II to represent him at

trial. Willie is also a licenced dentist and the record often refers

to him as Dr. Willie. James D. Evans III served as second chair

counsel. Unless necessary to identify one attorney, the Court will

refer to Ramey’s defense attorneys collectively as “trial counsel.”

Texas’ law-of-parties allows for a defendant’s conviction

“if . . . acting with intent to promote or assist the commission

of the offense, he solicits, encourages, directs, aids, or attempts

Ramey guilty of capital murder. The verdict form

specified that the jury found Ramey guilty as the

principal actor in the crime. Clerk’s Record at 175.

A Texas jury decides a capital defendant’s sentence

by answering special-issue questions. In this case, the

special issues asked: (1) will the defendant be a future

danger to society; and (2) do sufficient circumstances

mitigate against a death sentence? See TEX. CRIM.

CODE art. 37.071 § 2(b); Clerk’s Record at 193-94. The

State based its punishment-phase case on Ramey’s

escalating violent actions. The State presented testimony and evidence that, when Ramey stood trial at

age twenty-one, he had already amassed a significant

criminal history. Ramey began acting out in school at

a young age. His first interaction with the legal system

occurred when at age sixteen he coerced a seven-yearold boy into performing oral sex on him. Originally

charged with aggravated sexual assault, the charge

was reduced to assault and the court sentenced him to

juvenile probation for one year.

At age seventeen, Ramey pleaded guilty to criminal

mischief for breaking into a vending machine at his

high school. Less than six months later, Ramey and

another friend, broke into his alternative learning

school and ransacked the principal’s office. His probation for the two offenses was eventually revoked for

failing to pay fees, perform his community service

hours, and report to his probation officer. Ramey’s

subsequent stay in the county jail did not squelch his

lawlessness.

Jurors found out that Ramey had actually burglarized the Nairn residence three times. The State also

to aid the other person to commit the offense . . . .” TEX. PENAL

CODE § 7.02(a)(2).

presented evidence that, after burglarizing a different

location, Ramey attempted to run over the homeowner

with his car. Witnesses testified that Ramey had

planned other burglaries. Additionally, Ramey told

friends that he had carried out various crimes for

which he was never charged. Importantly, Ramey

bragged that he had committed other murders.

Ramey’s behavior did not improve while incarcerated before trial. He armed himself with weapons,

created disturbances, and threatened guards.

The State’s final witness was Dr. Richard Coons, a

psychologist. Dr. Coons did not examine Ramey, but

his review of relevant records led him to opine that

an offender like Ramey would “commit criminal acts

of violence in the future which would constitute a

continuing threat to society.” Tr. Vol. 38 at 81.

The defense only called two witnesses in the penalty

phase. Ramey’s mother, Ms. Terral Stevens, provided

an overview of Ramey’s life. Ms. Stevens told jurors

of Ramey’s early emotional and mental problems,

including a diagnosis of dyslexia and ADHD at age

four. Early evaluations revealed emotional disturbances and a lack of social skills. Ramey told evaluators

that his step-father had abused him. Ramey’s mother,

however, failed to seek the necessary help for her

son’s problems.

Dr. Mark Kunick, a psychiatrist, based his testimony on an interview with Ramey and Ramey’s

mother, his review of records, and his understanding

of the facts of the case. Dr. Kunick opined that

Ramey’s nonviolence since incarceration, his closeknit family, and his lack of mental illness would make

it unlikely that Ramey would be a future danger.

The jury answered Texas’ special issues in a manner

requiring the imposition of a death sentence.

Trial counsel represented Ramey on direct appeal.

On February 11, 2009, the Texas Court of Criminal

Appeals affirmed Ramey’s conviction and sentence in

an unpublished opinion. Ramey v. State, No. AP75,678, 2009 WL 335276 (Tex. Crim. App. 2009).

During the pendency of his state appeal, Ramey

filed a state application for a writ of habeas corpus.

The same judge who presided over Ramey’s trial

adjudicated his state habeas application. After the

submission of proposed factual findings and legal

conclusions, the trial-level court entered an order

recommending that the Texas Court of Criminal

Appeals deny habeas relief. State Habeas Record at

145-61. The Court of Criminal Appeals filed Ramey’s

case and set it for submission. Ex parte Ramey, No.

AP-76,533, 2011 WL 1288284, at *1 (Tex. Crim. App.

2011). After additional briefing by the parties, the

Court of Criminal Appeals entered an order denying

relief on November 7, 2012. Ex parte Ramey, 382

S.W.3d 396, 398 (Tex. Crim. App. 2012). The Court of

Criminal Appeals issued a mandate on December 4,

2012.

On November 14, 2013, Ramey filed a skeletal

federal petition for a writ of habeas corpus raising five

claims. Ramey, however, did not provide any extensive

legal or factual discussion of the issues raised by his

petition. Instead, Ramey provided the following brief

list of claims:

1. The State violated Ramey’s constitutional

rights by failing to disclose favorable evidence.

2. Ramey is innocent of capital murder.

3. Trial counsel provided ineffective representation in the guilt/innocence phase of trial.

4. Trial counsel provided ineffective representation in the penalty phase of trial.

(Dkt. No. 7). Ramey also informed the Court that he

“incorporates into his claims for relief the claims filed

in his direct appeal brief and in his state habeas

application . . . .” (Dkt. No. 7 at 4, n.1).

Ramey’s attorneys believed that they had filed their

petition outside the Anti-Terrorism and Effective

Death Penalty Act’s (“AEDPA”) limitations period.

The Court appointed new counsel to represent Ramey

throughout federal review. (Dkt. No. 11). Ramey

amended his habeas petition on December 15, 2015.

Ramey’s amended petition raised eleven claims:

1. The State violated Ramey’s right to equal

protection by systematically excluding jurors

based on their race.

2. Trial counsel provided ineffective representation during jury selection.

3. Ramey was denied a trial by an impartial jury

when a juror was excluded for expressing reservations about the death penalty.

4. The State violated Ramey’s rights by knowingly

presenting false testimony.

5. The State deliberately elicited information from

Ramey in violation of Massiah v. United States,

377 U.S. 201 (1964).

6. Trial counsel provided ineffective assistance

during pre-trial investigation and in the guilt

phase.

10a

7. Trial counsel provided ineffective representation in the penalty phase.

8. The cumulative effect of counsel’s errors violated Ramey’s constitutional rights.

9. The admission of unreliable testimony by an

expert witness violated Ramey’s rights.

10. Appellate

counsel

inadequate.

was

constitutionally

11. Ineffective assistance of trial, appellate, and

state habeas counsel forgive the default of any

procedurally deficient claims.

Respondent moves for summary judgment. (Dkt. No.

40). Respondent argues that (1) Ramey’s skeletal

petition was not timely; (2) any new claims in his

amended petition are also not timely; (3) Ramey

presents several claims in a procedurally inadequate

manner; and (4) all claims lack merit. Ramey has

filed a reply. (Dkt. No. 49). This matter is ripe for

adjudication. Before turning to Ramey’s habeas

claims, the Court must determine whether he filed

his initial petition in a timely manner.

TIMELINESS OF RAMEY’S PETITION

AND ISSUES AVAILABLE FOR

FEDERAL REVIEW

All federal habeas corpus petitions filed after April

24, 1996, are subject to a one-year limitations period.

The Court must first decide whether Ramey filed his

skeletal petition in a timely manner. The Court will

then decide whether any claims first raised in Ramey’s

amended petition are timely.

11a

I. Timeliness of the Skeletal Petition

The 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). Ramey’s conviction became final when the

Supreme Court denied his petition for certiorari from

direct appeal on October 5, 2009.3

A “pending” application for state post-conviction

relief tolls the one-year limitations period. 28 U.S.C.

§ 2244(d)(2). State post-conviction habeas proceedings

in capital cases run concurrently to the direct appeal.

See TEX. CODE CRIM. PRO. art. 11.071, § 4(a).

Ramey filed a state habeas application during the

pendency of direct appeal. The Texas Court of Criminal Appeals set his case for submission and

eventually denied state habeas relief on November 7,

2012.

The Court of Criminal Appeals does not issue a

mandate in every habeas case. A mandate only issues

in cases where the matter is “set for submission” by

the Court of Criminal Appeals. The Court of Criminal

Appeals issued the mandate on December 4, 2012.

In the standard state habeas case, no mandate

issues and a decision by the Texas Court of Criminal

Appeal ends state habeas review. See Ott v. Johnson,

192 F.3d 510, 513 (5th Cir. 1999) (stating that a

The Court emphasizes that the issue in this case involves

“interpreting the AEDPA’s tolling provision, §2244(d)(2), not its

triggering provision, § 2244(d)(1).” Gonzalez v. Thaler, 623 F.3d

222, 225 (5th Cir. 2010). The discussion that follows above does

not relate on when a conviction is “final” under 28 U.S.C.

§ 2244(d)(1).

12a

habeas “application becomes final after a decision by

the state’s high court”). The specific question before

the Court is whether, in a capital case set for submission, the Court of Criminal Appeals decision or its

mandate is a final judgment that ends state review.

The answer turns on whether the habeas action is

“pending” under section 2244(d)(2) between the

issuance of the appellate court’s decision and its

mandate. Because Ramey filed his initial federal

petition on November 14, 2013, his pleading was

timely only if state habeas review was tolled until the

mandate issued.

The federal courts have not rendered a one-sizefits-all standard for when a state habeas case is no

longer “pending,” but rather look to the “state postconviction procedures to determine . . . when state

review ended . . . .” Watts v. Brewer, 416 F. App’x

425, 428 (5th Cir. 2011) (quotation omitted); see also

Carey v. Saffold, 536 U.S. 214, 219 (2002) (refusing to

establish a “uniform national rule” governing when a

habeas case is pending). The Supreme Court has

loosely said that a case is pending until “the state

courts have finally resolved an application for state

postconviction relief” which generally is when, “[a]fter

the State’s highest court has issued its mandate or

denied review, no other state avenues for relief remain

open.” Lawrence v. Florida, 549 U.S. 327, 332 (2007);

see also Saffold, 536 U.S. at 220.4 The Supreme Court

The Supreme Court has looked to the dictionary use of the

word pending: “The dictionary defines ‘pending’ (when used as an

adjective) as ‘in continuance’ or ‘not yet decided.’ It similarly

defines the term (when used as a preposition) as ‘through the

period of continuance . . . of,’ ‘until the . . . completion of.’” Saffold,

536 U.S. at 220 (quoting Webster’s Third New International

Dictionary 1669 (1993)).

13a

has instructed to look at “[w]hen the state courts have

issued a final judgment on a state application” to

decide if “it is no longer pending.” Lawrence, 549 U.S.

at 334 (emphasis added).

The Fifth Circuit has not yet decided when a Texas

habeas case stops “pending” after being set for submission.5 Respondent argues that, without exception,

a state habeas action concludes and tolling ends

when the Court of Criminal Appeals issues its decision denying relief. Respondent cites cases for the

proposition that “[t]he Fifth Circuit has plainly stated

that a Texas habeas ‘application becomes final after a

decision by the state’s high court.’” (Dkt. No. 54 at 3

(quoting Ott, 192 F.3d at 513). While true as far as it

goes, the Fifth Circuit’s language is limited because

the federal courts in those cases did not face the

unique issue before this Court – no mandate had

issued because the state courts did not set the cited

cases for submission.

Respondent also argues that “the mandate in Texas

habeas procedure serves no real function affecting

the state or federal habeas process.” (Dkt. No. 54 at 7).

Respondent argues that the federal courts should not

consider that state habeas review remains pending

“for what is simply a ministerial act: issuing the

mandate.” (Dkt. No. 54 at 3). The Court of Criminal

Appeals has refused to characterize the mandate as

merely “ministerial.” Ex parte Webb, 270 S.W.3d 108,

111 (Tex. Crim. App. 2008). Instead, Texas treats a

mandate as “an appellate court’s official notice,

directed to the court below, advising it of the appellate

The Fifth Circuit has held that a habeas case in Mississippi

is pending until the mandate issues. Watts v. Brewer, 416 F. App’x

425, 430 (5th Cir. 2011).

14a

court’s decision and directing it to have the appellate

court’s judgment duly recognized, obeyed, and executed.” Id. at 9 n.2. The Texas courts do not intend the

mandate to be a mere formality, but an indication that

“the judgment was final.” Hartfield v. Thaler, 403

S.W.3d 234, 239 (Tex. Crim. App. 2013); see also

Brown v. Thaler, 455 F. App’x 401, 406 (5th Cir. 2011)

(stating that “Texas law is unambiguous” that

collateral review is final when the mandate issues).

The Texas legislature has structured capital habeas

procedure in a manner that presupposes that the

mandate is the point of final resolution for cases set

for submission. For example, the convicting court may

usually set an execution date when “the court of

criminal appeals denies relief.” TEX CODE CRIM. PRO.

art. 43.141(a)(1). If the case is “filed and set for submission,” however, statutory law prohibits the 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). Similarly, the mandate

serves as the defining point at which jurisdiction can

transfer from the state to the federal courts. The Texas

statutes recognize that, in a case set for submission,

inmates should not avail themselves of federal

jurisdiction until the mandate issues. See TEX. CODE

CRIM. PRO. art. 11.071(2)(e).

Both of those statutes cited above presuppose that

Texas considers a case pending until the mandate has

issued.6 In fact, the Court of Criminal Appeals itself

Respondent correctly observes that Texas law does not

permit the filing of a motion for rehearing or other similar pleading after the habeas court issues a decision. TEX. R. APP. P. Rule

79.2(d). The Fifth Circuit has held, however, that filing a motion

for reconsideration tolls the limitations period. Lookingbill v.

Cockrell, 293 F.3d 256, 261 (5th Cir. 2002); Emerson v. Johnson,

15a

has said in a different context that “[a] cause is pending until mandate is issued from this Court.” Cuellar

v. State, 521 S.W.2d 277, 280 (Tex. Crim. App. 1975)

(direct appeal); see also Stevenson v. State, 499 S.W.3d

842, 849 (Tex. Crim. App. 2016) (“[A] conviction with

a pending appeal is not final until the appellate court

affirms the conviction and issues its mandate.”).

With that understanding of state law, the Court

holds that, in 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 an mandate. The Court emphasizes that this

holding is limited to capital habeas cases set for

submission and does not apply to traditional habeas

actions.

Here, the Court of Criminal Appeals set Ramey’s

case for submission and, after rendering a decision,

issued a mandate on December 4, 2012. Ramey filed

his skeletal petition within a year afterward. Ramey’s

skeletal habeas petition was timely.

II. Timely Claims in Amended Petition

Even though Ramey’s initial petition was timely, he

raised new claims in his amended petition. Respondent argues that only claims four, six, and seven were

included in the skeletal petition. Respondent says that

the Court cannot reach the remaining claims in

Ramey’s amended petition because they do not “relate

back” to his initial arguments.

243 F.3d 931, 934 (5th Cir. 2001). The decision of the Court of

Criminal Appeals cannot be the unwaivering point of finality if a

disallowed subsequent motion for reconsideration tolls the

federal limitations period.

16a

Under Rule 15(c)(1)(B), Federal Rules of Civil Procedure, an amended pleading relates back to the date

of the original pleading when “the amendment asserts

a claim or defense that arose out of the conduct,

transaction, or occurrence set out – or attempted to

be set out – in the original pleading.” The Supreme

Court has construed this provision narrowly when

applied to federal habeas corpus cases. Only those

claims in an amended petition filed after the AEDPA

deadline that are tied to “a common core of operative

facts” will relate back to the original petition and

will be considered timely filed. Mayle v. Felix, 545 U.S.

644, 664 (2005). Habeas claims do not relate back

“when [they] assert[] a new ground for relief supported

by facts that differ in both time and type from those

the original pleading set forth.” Id. at 650.

As previously noted, Respondent concedes that

claims four, six, and seven relate back to the skeletal

petition. The remaining claims fall into two categories.

First, the amended petition contains several claims

that Ramey did not raise in state court or in his

skeletal petition. Specifically, Ramey did not exhaust

portions of claim two and all of claims five, eight, ten,

and eleven in state court. Those claims do not share a

common core of operative facts with the skeletal

petition. Ramey did not file them in a timely manner.

Second, Ramey’s amended petition contains some

claims that he exhausted in state court (part of claim

two and claims one, three, and nine). Ramey’s initial

petition mentioned in a footnote that he intended to

“incorporate[ ]into his claims for relief the claims filed

in his direct appeal brief and in his state habeas

application . . . .” (Dkt. No. 7 at 4, n.1). The most

generous reading of Ramey’s petition allows for federal

review of those claims.

17a

Claims one, two, three, four, six, seven, and nine are

timely.

III. Equitable Tolling of Claims That Do Not Relate

Back

Claims five, eight, ten, and eleven do not relate back

to his initial petition. The Court can only reach the

merits of those claims if Ramey can show equitable

tolling forgives a strict application of the AEDPA

limitations period. “Equitable tolling is permissible

only in ‘rare and exceptional circumstances.’” United

States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002)

(quoting Davis v. Johnson, 158 F.3d 806, 811 (5th

Cir. 1998)). “To obtain the benefit of equitable tolling,

[an inmate] must establish that (1) he pursued

habeas relief with ‘reasonable diligence’, and (2) some

‘extraordinary circumstances’ stood in his way and

‘prevented’ timely filing.” Palacios v. Stephens, 723

F.3d 600, 604 (5th Cir. 2013) (quoting Manning v.

Epps, 688 F.3d 177, 183 (5th Cir. 2012)); see also

Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Both

criteria must be satisfied, and a petitioner seeking

application of the doctrine bears the burden of showing that it should apply to him. See Lawrence, 549 U.S.

at 336.

Ramey argues that his initial federal attorneys’

representation should allow equitable tolling of the

limitations period. “[P]rofessional misconduct” by an

attorney may constitute an extraordinary circumstance warranting equitable tolling if the misconduct

is not a “garden variety claim of excusable neglect,”

but rather is such that it is “egregious behavior”

equivalent to abandonment. See Holland, 560 U.S. at

649-53; see also Maples v. Thomas, 565 U.S. 266, 283

(2012).

18a

The Court has reviewed Ramey’s extensive evidence

and argument about the representation of his initial

set of federal habeas attorneys.7 To summarize, the

federal attorneys originally concluded that a federal

petition was due on November 7, 2013. As that date

neared, Ramey claims that they abandoned him. The

evidence, however, shows that they became confused

and assumed that the AEDPA deadline would include

any time from which Ramey could have sought

Supreme Court review of his state habeas action. See

Lawrence, 549 U.S. at 332 (holding that the time to file

a certiorari petition from state habeas review does

not toll the limitations period). When the attorneys

realized their mistake, they acted quickly and a

skeletal petition was filed. The initial attorneys also

moved to withdraw. The skeletal petition that was

filed, however, did not include all the claims Ramey’s

new attorneys later put in the amended petition.

Despite Ramey’s arguments, he has not shown that

his federal attorneys left him effectively without

counsel. They incorrectly assessed the filing date.

Simply miscalculating a deadline is not grounds for

equitable tolling. See Maples, 565 U.S. at 282;

Holland, 560 U.S. at 651-52; Lawrence, 549 U.S. at

336. The record otherwise shows that the initial attorneys made efforts to meet with their client, research

the record, and develop a federal petition consistent on

a timeline based on their miscalculation. At best, this

The Court observes that Ramey lost months of the limitations period because federal habeas resource counsel sought to

secure representation without filing a federal motion for the

appointment of counsel (as required by state law). Ramey does

not argue that the delay in filing a federal motion should toll the

limitations period.

19a

is a case of garden variety negligence or error, not

abandonment.

Importantly, Ramey’s arguments do not explain

why anything but negligence accounts for the fact that

his attorneys did not include his new claims in the

skeletal petition. The omission of those claims is not

“egregious” or “extraordinary” conduct that would

equitably toll the limitations period. Holland, 560

U.S. at 649-50. After considering all of Ramey’s argument and evidence, the Court finds that he has not

shown a basis for equitable tolling. Claims five, eight,

ten, and eleven are time barred.

STANDARD OF REVIEW

The writ of habeas corpus provides an important,

but narrow, examination of an inmate’s conviction

and sentence. See Harrington v. Richter, 562 U.S. 86,

103 (2011); Barefoot v. Estelle, 463 U.S. 880, 887

(1983). How an inmate litigates his claims determines

the course of federal habeas adjudication. The exhaustion doctrine precludes federal consideration of any

claim raised for the first time in federal court. See 28

U.S.C. § 2254(b)(1).8 As a corollary to exhaustion, the

procedural-bar doctrine requires inmates to litigate

their claims in compliance with state procedural law.

See Dretke v. Haley, 541 U.S. 386, 392 (2004); Lambrix

v. Singletary, 520 U.S. 518, 523 (1997); Coleman v.

Thompson, 501 U.S. 722, 729 (1991). A federal court

may review an inmate’s unexhausted or procedurally

barred claims only if he shows: (1) cause and actual

prejudice; or (2) that “a constitutional violation has

Ramey asks the Court to stay this case to raise any unexhausted claim in state court. Ramey has not shown that a stay is

proper under Rhines v. Weber, 544 U.S. 269 (2005), or that an

avenue for state review is open to him.

20a

‘probably resulted’ in the conviction of one who is

‘actually innocent[.]’” Haley, 541 U.S. at 393 (quoting

Murray v. Carrier, 477 U.S. 478, 496 (1986)).

If the inmate has presented his federal constitutional claims to the state courts in a procedurally

proper manner, and the state courts have adjudicated

their merits, AEDPA provides for a deferential federal

review. Under AEDPA’s rigorous requirements, an

inmate may only secure relief after showing that the

state court’s rejection of his claim was either “contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States,” or was “based

on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),(2).

Inmates arguing legal error in state court decisions must comply with § 2254(d)(1)’s “contrary to”

and “unreasonable application” clauses. See Bell v.

Cone, 535 U.S. 685, 694 (2002). A petitioner does not

merit relief by merely showing legal error in the state

court’s decision. See White v. Woodall, ___ U.S. ___,

134 S. Ct. 1697, 1702 (2014) (stating being “merely

wrong” or in “clear error” will not suffice for federal

relief under AEDPA). “[F]ocus[ing] on what a state

court knew and did,” Cullen v. Pinholster, 563 U.S.

170, 182 (2011), AEDPA requires inmates to “‘show

that 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.’” Woodall, 134 S. Ct. at

1702 (quoting Richter, 562 U.S. at 103); Berghuis v.

Thompkins, 560 U.S. 370, 380 (2010); Williams v.

Taylor, 529 U.S. 362, 413 (2000). “If this standard is

21a

difficult to meet, that is because it was meant to be.”

Richter, 562 U.S. at 102.

A petitioner challenging the factual basis for a state

decision must show that it was an “unreasonable

determination of the facts in light of the evidence . . . .”

28 U.S.C. § 2254(d)(2); see also Miller-El v. Cockrell,

537 U.S. 322, 340 (2003) (Miller-El I). “[A] state-court

factual determination is not unreasonable merely

because the federal habeas court would have reached

a different conclusion in the first instance.” Wood v.

Allen, 558 U.S. 290, 301 (2010).

Federal courts presume the underlying factual

determinations of the state court to be correct, unless

the inmate “rebut[s] the presumption of correctness by

clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

The Court of Criminal Appeals summarily denied

habeas relief on all but one claim. In evaluating

Ramey’s claims under AEDPA, the federal courts will

“look through” the “summary denial of [Ramey’s state

habeas application] and evaluate the state trial

court’s reasoned decision.” Brumfield v. Cain, ___

U.S. ___, 135 S. Ct. 2269, 2276 (2015) (citing Ylst v.

Nunnemaker, 501 U.S. 797, 806 (1991)). As the same

judge presided over the trial proceedings and the

state habeas action in this case, the presumption of

correctness for state habeas factual findings is

especially strong. See Mays v. Stephens, 757 F.3d 211,

214 (5th Cir. 2014); Woods v. Thaler, 399 F. App’x. 884,

891 (5th Cir. 2010); Clark v. Johnson, 202 F.3d 760,

764 (5th Cir. 2000).9

Section 2254(e)(2) authorizes evidentiary hearings under

narrow conditions. No evidentiary hearing is necessary to adjudicate Ramey’s petition.

22a

An inmate’s compliance with 28 U.S.C. § 2254(d)

does not guarantee habeas relief. See Horn v. Banks,

536 U.S. 266, 272 (2002) (observing that no Supreme

Court case “ha[s] suggested that a writ of habeas

corpus should automatically issue if a prisoner

satisfies the AEDPA standard[.]”); Robertson v. Cain,

324 F.3d 297, 306 (5th Cir. 2003) (finding that 28

U.S.C. § 2254(d) “does not require federal habeas

courts to grant relief reflexively”). A habeas petitioner

meeting his AEDPA burden must still comply with

weighty jurisprudential tenets, as the non-retroactivity

principle of Teague v. Lane, 489 U.S. 288 (1989)

that prevents habeas courts from creating new

constitutional law.

ANALYSIS

I. The State Violated Ramey’s Right to Equal

Protection by Systematically Excluding Jurors

Based on Their Race. (Claim One)

Ramey’s first claim alleges that the prosecutor

systematically excluded African-Americans from serving on his jury. The jury selection process in this case

involved the questioning of individual jurors from

two jury panels. The 135-member initial venire dire

contained seven African-American individuals. Five of

those potential jurors were dismissed for cause, and

two were excused because they were distant relatives

of Ramey. The parties did not select any AfricanAmerican jurors from the first panel. When the trial

court called a second panel, eight jurors were already

seated. Of the forty-nine member second panel, six

were African-American.

When members of the second panel assembled in the

courtroom, four African-American potential jurors sat

toward the front of the courtroom. The prosecutor

23a

requested a jury shuffle, which left only two AfricanAmerican prospective jurors among those who would

eventually be questioned before the jury was selected.

After the jury shuffle, African-American veniremember Cheryl Steadham-Scott was the second juror

questioned. The State removed Ms. Steadham-Scott

by peremptory strike. The next juror questioned was

also African-American but she was dismissed for

cause.

No African-American jurors served at trial. Ramey

contends that the State systematically excluded jurors

based on their race in violation of Batson v. Kentucky,

476 U.S. 79 (1986).

Under Batson, the prosecution violates the equal

protection clause by striking potential jurors based on

race. Batson jurisprudence has established a threestep burden shifting scheme to ascertain the State’s

intent when striking members of a protected category:

First, the trial court must determine whether

the defendant has made a prima facie

showing that the prosecutor exercised a peremptory challenge on the basis of race.

Second, if the showing is made, the burden

shifts to the prosecutor to present a raceneutral explanation for striking the juror in

question. Although the prosecutor must present a comprehensible reason, the second

step of this process does not demand an

Texas provides that either party, based solely upon visual

inspection of the venire, may request the court to shuffle or

randomly reseat the entire panel. See TEX. CODE CRIM. PRO. art.

35.11. Both the State and the defendant have the absolute right

to one jury shuffle. Smith v. State, 648 S.W.2d 695, 696 (Tex.

Crim. App. 1983).

24a

explanation that is persuasive, or even plausible; so long as the reason is not inherently

discriminatory, it suffices. Third, the court

must then determine whether the defendant

has carried his burden of proving purposeful

discrimination. This final step involves

evaluating the persuasiveness of the justification proffered by the prosecutor, but the

ultimate burden of persuasion regarding

racial motivation rests with, and never shifts

from, the opponent of the strike.

Rice v. Collins, 546 U.S. 333, 338 (2006) (quotations

and citations omitted); see also Johnson v. California,

545 U.S. 162, 168 (2005); Miller-El v. Dretke, 545 U.S.

231, 251-52 (2005) (Miller-El II).

While Ramey contends that racism permeated jury

selection, he only points to one African-American prospective juror, Ms. Steadham-Scott, against whom

the State used a peremptory strike. Ramey challenged her strike in the appellate and habeas proceedings. On appeal, Ramey claimed that the trial

court did not properly engage in the Batson procedure

and that the prosecution shuffled the jury for racial

purposes. Ramey’s habeas application faulted the

State for not coming forward with a sufficient raceneutral explanation for striking Ms. Steadham-Scott.

Ramey raises a robust Batson claim in federal court.

Ramey contends that he can show purposeful discrimination in the State’s exercise of peremptory

strikes. Relying primarily on inferences, Ramey (1)

disputes the State’s reason for striking Ms. SteadhamScott; (2) argues that the prosecution used a jury

shuffle to lessen the chance of receiving an AfricanAmerican juror; (3) points to a purported history of

discrimination in Jackson County criminal trials; and

25a

(4) asserts that the State questioned the AfricanAmerican jurors differently. Ramey, however, only

gave the state courts an opportunity to consider the

first two arguments.

A. The Questioning of Ms. Steadham-Scott

The prosecution used a peremptory strike against

one black potential juror, Ms. Steadham-Scott. After

extensive questioning, the prosecution concluded by

asking her whether she could, as required by the

future-dangerousness special issue, impose a death

sentence when “the only evidence was that it would

be slightly more likely than not” that “he will be

dangerous in the future.” Tr. Vol. 29 at 77-78. Ms.

Steadham-Scott said that she would “need much more

of a burden.” Tr. Vol. 29 at 78. The State then passed

her.

Trial counsel began the defense’s question by

“go[ing] over this last issue” with her. Tr. Vol. 29 at 78.

At that point, the prosecutor interrupted and said that

he “was not going to challenge [Ms. Steadham-Scott ]

for cause.” Tr. Vol. 29 at 78. Trial counsel then passed

her without asking any additional questions. Tr. Vol.

29 at 79.

The prosecutor subsequently exercised a peremptory challenge against Ms. Steadham-Scott without

explanation. Tr. Vol. 29 at 79. The defense did not

raise a Batson objection then, but asked for the trial

court to include her questionnaire in the record. The

trial court excused her.

Three weeks later, and after the jury had been

selected but not yet sworn in, trial counsel told the

court:

26a

just for a housekeeping matter, when we

were doing the voir dire on the jury and the

supplemental panel, juror number two, which

is Cheryl Steadham-Scott, was peremptorily

struck by the prosecution and we were

just wanting to note that the prosecution did

not give any race neutral explanations for

that . . . .

Tr. Vol. 30 at 9.11 The prosecutor then said:

it was my understanding that if I would

have continued to pursue the line of questioning, that juror would most likely been

challengeable for cause, but I didn’t do it

because her questionnaire clearly indicated

that she could not impose the death penalty

and there were many other racially neutral

reasons and, if the Court wants, I can try to

go back and resurrect those notes.

Tr. Vol. 30 at 10. In short, the prosecution provided

two race-neutral reasons: (1) continuing the last line

of questioning would have shown her to be challengeable for cause and (2) she was not strong on

the death penalty. The trial court said that it “was

Ramey made his observation only minutes before the jury

was sworn. Tr. Vol. 30 at 12. Under Texas law, a Batson challenge

is not timely if made after the jury is selected and sworn. See

TEX. CODE CRIM. PRO. art. 35.261(a); Hill v. State, 827 S.W.2d

860, 864 (Tex. Crim. App. 1992). As explained by the Court of

Criminal Appeals, “[d]uring the discussion which followed, the

State declared that it was unprepared for a Batson motion since

one was never requested, but claimed that Steadham-Scott’s

answers to the prosecutor’s questions as well as her juror

questionnaire led to racially-neutral reasons for a peremptory

strike, such as her ambivalence regarding inflicting the death

penalty.” Ramey, 2009 WL 335276, at *3.

27a

comfortable with the record reflecting what it did with

respect to that juror” and the defense did not make

any further objection. Tr. Vol. 30 at 10.

Because the prosecutor explained the peremptory

strike of Ms. Steadham-Scott by providing reasons

that were not inherently discriminatory, the state

courts found that this process sufficiently complied

with required Batson procedure.12 Ramey now argues

that the prosecutor’s explanation was a pretext for

purposeful discrimination.

This Court’s review “turns on factual determinations, and, in the absence of exceptional circumstances,

The state habeas court, presided over by the same judge who

oversaw the trial, made the following factual findings relating to

Ms. Steadham-Scott’s individual voir dire:

[T]he petitioner voiced no objection and raised no issue

as to whether or not the State improperly exercised a

peremptory challenge. Twenty-one days after this

prospective juror was peremptorily struck by the

prosecutor petitioners attorney pointed out that at the

time of the exercise of this peremptory challenge the

prosecution did not give a race-neutral explanation for

the challenge and petitioner wanted that for the

record. Since no objection was made at the time of the

challenge of this prospective juror and no Batson claim

had been made the State did not have its notes and

was not prepared to address the race-neutral reasons

for the strike because of the delay. However the court

recalled that there were issues which the State went

into in the examination of this prospective juror which

would give rise to a peremptory strike and was comfortable with the record showing that the strike was

made for those purposes and not based upon any racial

reason.

State Habeas Record at 152. Ramey does not renew his state

habeas challenge that the trial court did not sufficiently perform

the required Batson inquiry.

28a

[courts] defer to state court factual findings unless

we conclude that they are clearly erroneous.” Synder,

552 U.S. at 477 (quotation omitted). Ramey assumes

that, because of racial bias, the prosecutor framed

his questioning in a way to disqualify Steadham-Scott

from service. The state courts, however, found that

Ms. Steadham-Scott “was repeatedly unable to answer

the State’s questions regarding her ability to adjudge

the death penalty, both in her jury questionnaire and

during voir dire”:

When asked whether she understood the

death penalty or whether she would change

it, she replied, “Yea. I don’t know how I would

change it, but – I don’t know how I would

change it.” When asked if she believed in the

death penalty, she responded, “I mean, you’re

asking me stuff like do I believe in the death

penalty. I don’t know if I believe in it, you

know.” On the jury questionnaire, she left

blank the question, “Have you ever been

opposed to the death penalty?” and responded

in another section on the questionnaire that

she was “not opposed or . . . in favor of it.”

Ramey, 2009 WL 335276, at *3.

The state habeas court also found that “SteadhamScott’s standing on the death penalty was very questionable and the peremptory challenge by the State

was based upon her inconclusive opinions on the death

penalty and not upon her do identity as an AfricanAmerican.” State Habeas Record at 152. On that basis,

the state habeas court found that “the use of the

State’s peremptory challenge was not based on racial

29a

motivations.” State Habeas Record at 152.13 In fact,

the state habeas court commented that there was a

“complete failure to show that there was any basis for

a claim that the challenge was racially motivated.”

State Habeas Record at 152.

This is not a case where jury selection involved a

definitive pattern of the prosecution striking black

jurors. Of the nine African-Americans identified on

the jury panels, six were dismissed for cause and two

because they were relatives of Ramey. The record does

not demonstrate a stark disparity in the percentage of

blacks peremptorily struck as opposed to whites. The

prosecutor provided race-neutral reasons for striking

Ms. Steadham-Smith.

On their face, the State’s reasons for dismissing Ms.

Steadham-Smith are race neutral. See Hernandez, 500

U.S. at 360. First, questioning immediately before the

peremptory strike raised serious concerns about Ms.

Steadham-Smith’s ability to impose the correct burden

on the future-dangerousness issue. See Muniz v. State,

851 S.W.2d 238, 250 (Tex. Crim. App. 1993) (requiring

As the Court of Criminal Appeals observed on direct review,

the “there was a brief allusion to race in the jury questionnaire

and then on [Ms. Steadham-Scott’s] individual voir dire . . . .”

Ramey, 2009 WL 335276, at *3. Ramey argues that the

prosecutor asked questions about capital punishment and then

“abruptly shifted course and began asking her about her experience as an African American.” (Dkt. No. 30 at 45). In reality, the

prosecutor was reviewing Ms. Steadham-Scott’s jury questionnaire and, moving from the pages talking about capital punishment, came to the section where she had answered that she had

“feelings about African Americans being treated fairly.” Tr. Vol.

29 at 69. The prosecution then engaged her in questioning that

allowed her to explain her answer, particularly because she

specified that she “[ran] into issues like that all the time at work.”

Tr. Vol. 29 at 69-70.

30a

the State only to prove that the defendant “would,

more likely than not, commit violent criminal acts in

the future”). Second, some of Ms. Steadham-Scott’s

answers supported the prosecutor’s belief that “she

could not impose the death penalty”: she did not

know if she believed in the death penalty, she was

ambivalent toward capital punishment, and was neither opposed to or in favor of it. Tr. Vol. 29 at 64-66.

She also did not answer questions such as whether

she had previously been opposed to the death penalty.

Tr. Vol. 29 at 66. While elsewhere she said that she

would “have to be fair and open” about reaching a

decision, Tr. Vol. 29 at 65, the record reasonably

supports the prosecution’s belief that she would not be

favorable to considering a death sentence.

Even though the record does not strongly question

the State’s motives here, courts may consider relevant

facts and circumstantial evidence to assess possible

discriminatory intent. Ramey relies on other inferences to prove that the State engaged in purposeful

discrimination: the use of a jury shuffle, an alleged

history of discrimination in Jackson County, and

disparate questioning.

B. The Jury Shuffle

Ramey argues that the State’s use of the jury shuffle

shows that it intended to keep African-Americans off

the jury. A jury shuffle may suggest discrimination.

See Snyder v. Louisiana, 552 U.S. 472, 478 (2008);

Miller-El II, 545 U.S. at 254-55. Ramey argues that

the State used a jury shuffle on the second panel

because “most of the African American veniremembers

were seated towards the front of the panel.” (Dkt. No.

30 at 52).

31a

Ramey argued to the state courts that the jury

shuffle itself amounted to a Batson violation. Trial

counsel asked for a race-neutral explanation when the

prosecutor requested a jury shuffle. While Ramey did

not make a classic Batson challenge, the trial court

nonetheless required the prosecution to explain why it

had asked for a jury shuffle. The prosecutor told the

court:

I have individuals here in Victoria who have

assisted me in going through the list and

given me information about the prospective

jurors . . . . I have gotten that information

from a number of different individuals. And

in doing that I looked at this list and the

overwhelming majority of the folks that they

had suggested would be good State’s jurors

were towards the back of the panel. And so in

light of that I requested a shuffle . . . . I will

tell the Court as an officer of the Court that

those individuals, probably 75–80 percent of

the ones they had told me would be good

State’s jurors were towards the back. And so

that’s why I asked for a shuffle.

Tr. Vol. 21 at 20. The defense did not make any other

argument, and the trial court recessed without

making an express ruling.

The Court of Criminal Appeals found that the trial

counsel “implicitly denied [Ramey] relief” on his jury

selection complaint which means that it believed

that “[t]he explanation proffered by the State” was

“sufficiently race-neutral.” Ramey, 2009 WL 335276,

at *2. Ramey has not shown clear and convincing

evidence to rebut the state court’s finding that the

State did not use the jury shuffle for racial reasons.

See Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004)

32a

(“As a federal habeas court, we are bound by the state

habeas court’s factual findings, both implicit and

explicit.”).

C. History of Exclusion and Comparative Juror

Analysis

For the first time in federal court, Ramey also asks

the Court to consider other factors to show that the

State exercised its peremptory strike against Ms.

Steadham-Scott on the basis of race. Ramey particularly emphasizes historical discrimination in Jackson

County and disparate questioning of African-American

potential jurors by the prosecutor. Ramey’s failure to

raise these issues previously deprived the state courts

from the opportunity to consider his arguments.

In arguing that prosecutors in Jackson county have

historically excluded African-American jurors, Ramey

relies heavily on Hernandez v. State, 347 U.S. 475

(1954), a case in which the Supreme Court found that

had been a systematic exclusion from jury service in

Jackson County. Ramey also says “[u]pon information

and belief, the racial discrimination present in this

case is not an isolated incident and [the District

Attorney] has employed similar discriminatory tactics

throughout his tenure . . . .” (Dkt. No. 30 at 57). Ramey,

however, has not provided any evidence of a systematic racism in jury selection by the prosecutor’s office

in recent years. Ramey’s reliance on case from more

than sixty years ago and his bare supposition about

current racism cannot overcome the deference paid to

state court adjudications.

Without any other basis to support his Batson claim,

Ramey tries to show “a comparative analysis of the

jurors – that is, ‘side-by-side comparisons of some

black venire panelists who were struck and white

33a

panelists allowed to serve.” United States v. Minor,

698 F. App’x 765, 768 (5th Cir. 2017) (quoting MillerEl v. Dretke, 545 U.S. 231, 241 (2005) (“Miller-El II”)).

If the government’s explanation “for striking a black

panelist applies just as well to an otherwise-similar

nonblack who is permitted to serve, that is evidence

tending to prove purposeful discrimination to be considered at Batson’s third step.” Miller-El II, 545 U.S.

at 241.

Ramey has not identified any jurors from his trial

who, like Ms. Steadham-Smith, displayed difficulty

with imposing the burden for the future-dangerousness

issue. Instead, Ramey’s argument tries to show that

the prosecution treated African-American jurors differently during questioning about the death penalty.

In particular, Ramey points to two white jurors,

Marjorie Jean and Carol Laza, who were selected to

serve despite leaving some answers blank on their

questionnaire and expressing that they did not

understand the death penalty. (Dkt. No. 30 at 44-45).

Despite some similarities in how they answered the

jury questionnaire, questioning of both Jurors Jean

and Laza confirmed that they would be able to return

a death sentence. Tr. Vol. 29 at 90-120; Tr. 29 at 15058. Even after questioning, Ms. Steadham-Smith

could not say that she believed in capital punishment.

Tr. Vol. 29 at 64-66. Ramey has not identified jurors

who gave such ambivalent responses during questioning. Although he attempts to point out discrepancies in the State’s questioning, his arguments about

disparate questioning are not compelling. Ramey has

simply not shown that the prosecutor’s proffered

reason for striking Ms. Steadham-Smith “applies just

as well to an otherwise-similar nonblack [panelist]

who is permitted to serve, [thus] . . . tending to prove

34a

purposeful discrimination.” Miller-El II, 545 U.S. at

241.

D. Conclusion of the Batson Claim

This Court’s role is “to determine whether the trial

court’s determination of the prosecutor’s neutrality

with respect to race was objectively unreasonable and

has been rebutted by clear and convincing evidence

to the contrary.” Miller-El I, 537 U.S. at 341. State

court review centered on the integrity of the prosecutor’s reason for striking Ms. Steadham-Scott, and to a

lesser extent whether the jury shuffle showed racism.

With the record and argument in state court, significant and binding state factual findings found no

impropriety in the prosecutor’s peremptory removal

of jurors, and particularly the peremptory strike

against Ms. Steadham-Scott.

Ramey’s more extensive briefing on federal review

does not make a stronger case of purposeful discrimination by the State. Taken as a whole, Ramey

has not made a persuasive argument that the State

struck Ms. Steadham-Scott, or otherwise treated

potential jurors differently, because of race. Ramey

has not provided clear and convincing evidence that

the state court factfindings were incorrect, 28 U.S.C.

§ 2254(e)(1), nor shown that its decision was unreasonable, 28 U.S.C. § 2254(d)(2). See Davis v. Ayala, ___

U.S. ___, 135 S. Ct. 2187, 2199 (2015) (emphasizing

AEDPA’s impact on Batson claims).

II. Trial Counsel Provided Ineffective Representation During Jury Selection. (Claim Two)

In his second claim, Ramey argues that trial counsel

provided deficient representation during jury selection

in four ways. First, Ramey claims that trial counsel

35a

did not ask potential jurors the right questions. Second, Ramey argues that his attorneys should not

have agreed to dismiss many venire members without

questioning. Third, Ramey claims that trial counsel

ineffectively questioned one specific potential juror.

Finally, Ramey argued that trial counsel did not

object when the State misstated the law. Respondent

argues that Ramey did not exhaust the third argument in state court.

A. Strickland Standard

Courts evaluate an attorney’s efforts under the

standard from Strickland v. Washington, 466 U.S.

668 (1984). Under Strickland, a criminal defendant’s

Sixth Amendment rights are “denied when a defense

attorney’s performance falls below an objective standard of reasonableness and thereby prejudices the

defense.” Yarborough v. Gentry, 540 U.S. 1, 3 (2003)

(emphasis added); see also Rompilla v. Beard, 545 U.S.

374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 520

(2003).

A court’s review “of counsel’s performance must be

highly deferential,” and made without “the distorting

effects of hindsight.” Id. at 689. Courts assess counsel’s “challenged conduct on the facts of the particular

case, viewed as of the time of counsel’s conduct[,]”

because otherwise “[i]t is all too tempting for a

defendant to second-guess counsel’s assistance . . . .”

Id. The law honors an attorney’s “conscious and

informed decision on trial tactics and strategy,” allowing for federal relief only when “it is so ill chosen that

it permeates the entire trial with obvious unfairness.”

Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir.

2003). The prejudice element requires the movant to

show that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

36a

proceeding would have been different.” Strickland,

466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.

The state courts rejected many of Ramey’s

Strickland claims. While “[s]urmounting Strickland’s

high bar is never an easy task,” a habeas petitioner’s

duty to “[e]stablish[] that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the

more difficult.” Padilla v. Kentucky, 559 U.S. 356, 371

(2010). “The standards created by Strickland and

§ 2254(d) are both highly deferential, . . . and when

the two apply in tandem, review is doubly so.” Richter,

562 U.S. at 105 (citation omitted); see also Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009).

B. Questioning about Bias

Ramey argues that trial counsel “(1) failed to ask

life-qualifying questions and assert cause challenges

for jurors who demonstrated obvious bias and inability to follow the law, and (2) failed to rehabilitate and

agreed to excuse jurors who expressed a reservation to

the death penalty, without any voir dire.” (Dkt. No. 30

at 66). Despite making general allegations about deficiencies during voir dire, Ramey only provides briefing

on the questioning of four jurors (Craig Ullmann, Jose

Loredo, Sharon Reynolds, and Nancy Wind).

Respondent contends that much of Ramey’s second

claim involves “nitpicking” of trial counsel’s questioning. (Dkt. No. 40 at 121). Ramey challenged trial

counsel’s voir dire questioning on state habeas review.

The state habeas court found that his arguments

“are simply based upon tactics expressed with generality and with no specific allegation of specific

conduct which constituted ineffective assistance of

37a

counsel. In regard to these claims the court finds that

the record simply does not support [Ramey’s] allegations of ineffective assistance of counsel.” State

Habeas Record at 155.

While “[v]oir dire plays a critical function in

assuring the criminal defendant that his constitutional right to an impartial jury will be honored,”

Morgan v. Illinois, 504 U.S. 719, 729 (1992) (quotation

omitted), “no hard-and-fast formula dictates the

necessary depth or breadth of voir dire.” Skilling v.

United States, 561 U.S. 358, 362 (2010). Not every

attorney will conduct voir dire in the same manner.

The mere fact that another attorney might have

asked different questions will not support a finding

of ineffective assistance. See Garza v. Stephens, 738

F.3d 669, 676 (5th Cir. 2013) (“Moreover, Garza cites

no authority, and we have found none, that would

require a defense attorney to ask specific questions at

voir dire.”). Indeed, a defense attorney’s method of voir

dire is strategic, and thus it “cannot be the basis for a

claim of ineffective assistance of counsel unless

counsel’s tactics are shown to be so ill chosen that

it permeates the entire trial with obvious unfairness.”

Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995)

(quotation omitted). Further, a petitioner “alleging

deficient performance during jury selection must

identify any particular juror who was in fact prejudiced and must establish that had counsel’s questioning focused on a specific area of bias, the bias

would have been found.” Villanueva v. Stephens, 555

F. App’x 300, 306 (5th Cir. 2014). This Court’s review

will center on whether additional questioning by

counsel would have made the four jurors subject to

removal by cause.

38a

1. Ullman

Ramey argues that two jurors (Ullman and Loredo)

were biased because they would “automatically

impose” a death sentence. (Dkt. No. 30 at 67). The

prosecution engaged Ullman in wide-ranging questioning. When the prosecutor passed Ullman, trial

counsel only asked for clarification on his jury questionnaire response that he was “in favor in [sic] capital

punishment except in a few cases where it may not

be appropriate.” Tr. Vol. 9 at 213. Ullman said: “I

would say that that would play towards the circumstances involved around the case. How could I be

more specific? Cases where the person may have been

legally insane or not mentally capable of knowing

what they were doing.” Tr. Vol. 9 at 213. Afterwards,

trial counsel told the trial court that “after consultation with the client, . . . the Defense accepts this

juror.” Tr. Vol. 9 at 214.

Ramey faults trial counsel for not asking Ullman

more questions. Ramey, however, does not acknowledge

the State’s earlier questioning that explored Ullman’s

opinions and ability to serve as a juror in a capital

case. Ullman said that he would consider all of the

evidence before deciding whether a death sentence

was appropriate. Tr. Vol. 9 at 183. His answers showed

that he understood the presumption of innocence and

reasonable-doubt standard. Tr. Vol. 9 at 191-95

Nothing in Ullman’s questioning by the State would

give rise to a challenge for cause.

2. Loredo

Trial counsel engaged Juror Loredo in much longer

questioning. A full review of the defense questioning,

however, shows that he was not necessarily an unfavorable juror. Pursuant to trial counsel’s questions,

39a

Loredo said he was “conservative” on some issues and

“liberal on some issues” such as being “pro choice.” Tr.

Vol. 17 at 68. Loredo explained that he had a friend

accused of a killing and the thought of being a witness

in that case made him worry that he could not deal

with being the one whose testimony “is what actually

sends him to prison.” Tr. Vol. 17 at 71. Loredo told trial

counsel that, on a scale of one to ten with one being

against capital punishment and ten being positively in

favor of it, he was a “seven.” Tr. Vol. 17 at 76.

Ramey emphasizes an answer in which Loredo said

he would “favor” the death penalty. Tr. Vol. 17 at 80.

Even when Loredo said he “favored” the death penalty,

he clarified that he only meant that he “believed in it”

and his opinion on the death penalty would not affect

his ability to consider the evidence. Tr. Vol. 17 at 80.

Loredo, in fact, expressed a willingness to impose a

life sentence “if a single mitigating factor were presented to [him].” Tr. Vol. 17 at 81. Given the exhaustive questioning by the defense, Ramey’s emphasis on

one answer misrepresents trial counsel’s efforts and

mischaracterizes the juror’s ability to be impartial.

3. Reynolds

Similarly, Ramey picks out some elements from

Juror Reynolds’ questioning that he says made her

biased toward law enforcement. For instance, Juror

Reynolds said that her favorite television program

was “Law & Order” and that she worked as a 911

dispatcher. Juror Reynold’s discussion about her

favorite television program did not reveal any proprosecution bias. Tr. Vol. 13 at 103. Trial counsel’s

questioning, also, revealed that her experiences

through her employment would help her “be a fair

juror to both sides, you know, to listen to all that is

40a

said and see that everything that’s being said.” Tr. Vol.

13 at 100-01.14

Ramey somewhat misconstrues Ms. Reynolds’

answers to questions about the death penalty. For

instance, he criticizes trial counsel for not striking

for her “pro death penalty ideation” based on a statement that “inmates are on death row for too long,” but

does not quote her actual statement which reflected

compassion for the inmates: “it’s, I would think, a very

hard place to be, never knowing . . . how long you’re

going to be there or . . . if you’re going to make it to

your actual execution date . . . for being in the system. You hear of . . . people not actually making it to

the execution date, you know. You live with that stuff

every day.” Tr. Vol. 13 at 99. Ms. Reynolds signaled

compassion that a reasonable attorney could see as

helping the defense. Ms. Reynolds’ jury questionnaire

showed that she was “right in the middle” and able “to

consider all the choices, albeit life or death, and let

the facts of the case and the facts of the defendant

decide it.” Tr. Vol. 13 at 69. Ramey has not shown that

Ramey relies on a post-judgment affidavit from Ms.

Reynolds in which she expresses surprise at her selection as a

juror. Respondent argues that the Court cannot consider the

affidavit under Rule 606(b) of the Federal Rules of Evidence

which specifically limits the admissibility of juror testimony

during an inquiry into the validity of a verdict. Here, however,

the affidavit does not expressly fall within Rule 606(b)’s prohibition because it relates to voir dire, not the juror’s statements,

impressions, or reaction to outside factors directly impacting the

“validity of a verdict.” See Austin v. Davis, 647 F. App’x 477, 493

(5th Cir. 2016); see also Hatten v. Quarterman, 570 F.3d 595, 60203 (5th Cir. 2009). The affidavit, however, is not useful because

Ms. Reynolds does not express any actual bias.

41a

counsel needed to ask any additional questions of Ms.

Reynolds about the death penalty.

4. Wind

Finally, Ramey contends that Juror Wind could not

be impartial because of knowing information about the

case. Juror Wind said she had close ties with Edna,

Texas, the location of the murders. She read things in

the paper about the case. She had discussed the

murders with others. Tr. Vol. 24 at 36. Trial counsel

did not ask Juror Wind if she had any bias, likely

because Juror Wind had already told the prosecutor

that her true knowledge of the murders was spotty and

that she had not formed an opinion about the case. Tr.

Vol. 24 at 33-34. Ramey has not shown that a reasonable attorney should have asked her more questions.

In the end, Ramey has not shown that any of the

challenged jurors harbored views that would have

resulted in dismissal for cause. As the state habeas

court found, Ramey’s complaint “simply reveals claims

that [his] trial counsel did not conduct the voir dire

in a manner in which [his] present counsel would

conduct voir dire. . . . [A]ll of these claims are simply

based upon tactics . . . .” State Habeas Record at 155.

Ramey has not shown that trial counsel provided deficient performance, or that actual prejudice resulted,

from the questions he asked on voir dire.

C. Agreement to Excuse by Consent

The parties agreed to dismiss thirty-nine veniremembers based on their answers to the written

juror questionnaire, without any individual voir dire.15

It does not appear that Ramey exhausted this portion of

his claim in state court. Respondent, however, does not move for

dismissal of the claim on that basis.

42a

Without identifying which jurors he refers to, Ramey

contends that “[a]t least 15 of those prospective jurors

who were ‘excused by agreement’ were clearly not

challengeable for cause based on their answers to the

questionnaire.” (Dkt. No. 30 at 75). Ramey contends

that trial counsel’s failure to require adequate

questioning of those jurors violated his rights.

No authority requires all potential jurors to be

questioned. Texas law allows excusal by the consent

of parties. See TEX. CODE CRIM. PRO. art. 35.05. Here,

Ramey does not allege that the summary excusals

were based on race or any impermissible factor other

than individual feelings about the death penalty.

Ramey does not specify which potential jurors were

removed by consent, but could have been rehabilitated

with additional questioning. Even if trial counsel

agreed to remove all jurors unequivocally opposed to

or in favor of a death sentence, such an approach falls

within an area reserved traditionally for strategic

decision making. See Teague, 60 F.3d at 1172. Ramey

has not shown Strickland deficient performance or

prejudice with regard to this claim.

D. Dismissal of Mary Natividad

Ramey argues that trial counsel allowed potential

juror Mary Natividad to be excused without any voir

dire. The parties agreed to dismiss Ms. Natividad

based only on her questionnaire showing general

opposition to the death penalty. Tr. Vol. 16 at 21.

When the State observed that Ms. Natividad answered

that “she not only has been opposed to the death

penalty now, but she has been opposed in the past,”

trial counsel responded, “[a]s much as I would like for

her to be here, she is really on absolutes.” Tr. Vol. 16

at 21.

43a

Because Ramey did not exhaust this portion of

his claim in state court, it is procedurally barred. The

Court, however, alternatively finds that Ramey’s briefing on this matter does not strongly show deficient

performance or prejudice in trial counsel’s choice to

allow dismissal of Ms. Natividad. Trial counsel could

tactically agree to her excusal for various reasons,

none of which would questionably result from deficient

legal performance. Ramey has not shown that he can

overcome the procedural bar or that this argument

merits relief.

E. The Prosecutor’s Alleged Misstatements of

Law

Finally, Ramey contends that trial counsel provided

deficient performance by not objecting when the prosecutor misstated the law.16 The prosecutor repeatedly

told jurors that the mitigation special issue was the

only opportunity to give mitigating evidence any

effect. Under Texas law, however, a jury can consider

and give effect to some mitigating evidence through

the future dangerousness special issue. See Scheanette

v. Quarterman, 482 F.3d 815, 826 n.64 (5th Cir. 2007)

(listing several categories of evidence that jurors can

consider under the future-dangerousness issue).

Ramey has shown that trial counsel probably missed

a viable objection and an opportunity to provide jurors

a correct understanding of the law.

Even if the prosecution misstated the law, a great

deal of time had passed and much had happened

before the jury deliberated Ramey’s punishment. The

jury had heard significant evidence and argument in

Again, it is not clear that Ramey exhausted this portion of

his claim. Respondent, however, does not ask for dismissal on

exhaustion grounds.

44a

both phases of trial, making it unlikely they remembered the complained-of statements. The Court is

“skeptical that, by the time their . . . deliberations

began, the jurors would have remembered the explanations given during voir dire, much less taken them

as a binding statement of the law.” Penry v. Johnson,

532 U.S. 782, 801 (2001).

Jurors had a full ability to give effect his evidence

under the mitigation special issue which ameliorated

any harm from the prosecutor’s misstatement. At any

rate, before deliberations began, the trial court correctly instructed jurors on how to consider the evidence in answering the special issues. Because courts

presume that juries will follow their instructions, see

Zafiro v. United States, 506 U.S. 534, 540 (1993);

Richardson v. Marsh, 481 U.S. 200, 209 (1987), the

jury charge cured any error during voir dire. See

Styron v. Johnson, 262 F.3d 438, 454 (5th Cir. 2001)

(finding that, despite prosecutor’s misstatement of

the law during voir dire, there was no constitutional

error because the court properly instructed the jury

in accordance with law). Given the significant amount

of time, evidence, and testimony that the jury had to

consider after hearing the prosecutor’s statements,

and in light of the correct jury instructions, “[t]he

comments of . . . counsel during voir dire were surely

a distant and convoluted memory by the time the

jurors began their deliberations on . . . [Ramey’s]

sentence.” Penry, 532 U.S. at 802. Ramey has not

shown Strickland error with regard to this portion of

claim two.

In sum, Ramey has not shown any constitutional

error with regard to claim two, much less that the state

court’s adjudication of his claim was unreasonable.

45a

III. Juror Excluded for Expressing Reservations

about the Death Penalty. (Claim Three)

Ramey contends that his constitutional rights were

violated “because veniremember Laurilyn F. Warren

was excluded from the jury simply because she

expressed reservations about the death penalty.” (Dkt.

No. 30 at 80). Exclusion of prospective jurors “hesitant

in their ability to sentence a defendant to death”

without any limitations violates the Fourth and

Fourteenth Amendments. Morgan v. Illinois, 504 U.S.

719, 732 (1992); see also Adams v. Texas, 448 U.S. 38,

45 (1980); Witherspoon v. Illinois, 391 U.S. 510, 52122 (1968). The State must demonstrate through questioning that the potential juror it seeks to exclude

lacks impartiality, and the judge must then determine whether the state’s challenge is proper. See

Wainwright v. Witt, 469 U.S. 412, 423 (1985). The key

issue is “whether the juror’s views would ‘prevent or

substantially impair the performance of his duties

as a juror in accordance with his instructions and his

oath.’” Id. at 424 (quoting Adams, 448 U.S. at 45). The

state habeas court issued explicit factual findings

relating to Ms. Warren’s dismissal. This Court can

grant federal habeas relief only if the state court

decision “was based on an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d)(2);

see also Fuller v. Johnson, 114 F.3d 491, 500-01 (5th

Cir. 1997).

While Ramey contends that Ms. Warren was dismissed “simply for expressing a reservation about the

death penalty” (Dkt. No. 30 at 80), the record reveals

her concerns about the death penalty were not the

only, or even most important, reason the trial court

removed her for cause. At the beginning of her

46a

questioning, Ms. Warren said that she was “definitely

more opposed” to the death penalty than for it. Tr. Vol.

22 at 279, 290. In subsequent questioning she said

“depending on the circumstances [she] could vote for a

death penalty.” Tr. Vol. 22 at 291. “[B]ecause of [her]

answers to the opposition to the death penalty,” the

prosecution then engaged Ms. Warren in questions

about her ability to consider the evidence under the

beyond-a-reasonable-doubt standard. Ms. Warren

subsequently provided waffling opinions about how

she would consider evidence in a capital case.

Ms. Warren told the prosecutor that she would

hold the State to a higher standard in a death case.

Tr. Vol. 22 at 299. After trial counsel’s questioning

rehabilitated her, Tr. Vol. 22 at 301, Ms. Warren again

said she would require a “greater quantum of proof”

in a capital case than another criminal action. Tr. Vol.

22 at 309. Trial counsel’s subsequent questioning

extracted that Ms. Warren “hope[d] that she could

follow what the Judge tells her to do” regarding the

reasonable-doubt standard. Tr. Vol. 22 at 310.

The prosecution then challenged Ms. Warren for

cause:

The State:

Now this is the classic vacillating juror.

She has vacillated but she has clearly

stated on at least two if not three

occasions that she would require a

greater burden of proof than beyond a

reasonable doubt which she would

establish, and based on that the State

would challenge for cause.

Trial counsel: Your Honor, I think in all due respect I

think that the prosecution tried to

testify for the witness. The witness

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said she could follow the standards.

This is not one that’s challengeable for

cause, and if they want to exercise a

peremptory strike that’s fine, but this

one’s not challengeable for cause. This

juror says she can follow the law.

The Court:

Well, just in the interest of time if –

would the State want to proceed with

more examination of the witness?

The State:

Oh, absolutely, Judge

The Court:

Yeah.

The State:

There’s many other issues that I don’t

think she would be able to – I think she

would probably fall on, but whatever.

The Court:

All right. The challenge is granted.

Tr. Vol. 22 at 310–311.

Here, Ramey contends that the trial court dismissed Warren because of her opposition to the death

penalty, but in reality her vacillation on the beyond-areasonable-doubt standard precluded her jury service.

With regard to her dismissal on that ground, the state

habeas court found no error because “she would

impose a greater burden of proof upon the State in a

capital murder case than in other cases.” State Habeas

Record at 148. Even though “upon questioning by

[Ramey’s] trial counsel she testified she would follow

the law and the evidence,” after “further questioning

by the State the venireperson again stated she would

require a greater burden of proof in a death penalty

case.” State Habeas Record at 148. The state habeas

court found that Warren “was the classic vacillating

juror and the State’s challenge for cause was granted

because she had a bias against a rule of law the State

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was entitled to rely upon in the trial of this cause.”

State Habeas Record at 148.

Here, the trial court could reasonably conclude that

Warren would “frustrate the State’s legitimate

interest in administering constitutional capital sentencing schemes by not following [her] oath[.]” Witt,

469 U.S. at 423. Ms. Warren went back-and-forth in

her answers, yet the best she could say is that she

“hope[d]” to apply the reasonable-doubt standard correctly. Tr. Vol. 20 at 309-10. As the trial court clearly

could have been “left with the definite impression that

[Ms. Warren] would be unable to faithfully and

impartially apply the law,” Witt, 469 U.S. at 426, the

trial court had a reasonable basis for granting the

State’s challenge for cause. See Drew v. Collins, 964

F.2d 411, 417 (5th Cir. 1992) (finding no error in dismissing juror who on occasions indicated that he

would hold the State to a higher burden of proof in a

death case). The state habeas court’s rejection of this

claim was not an unreasonable determination of the

facts. The Court will deny this claim.

IV. Knowingly Presenting False Testimony and

Suppressing Evidence. (Claim Four)

Ramey’s fourth ground for relief raises three

arguments: (1) the State presented false testimony

through trial witnesses Otis Santellana and Gerald

Manzanalez; (2) the State suppressed evidence in

violation of Brady v. Maryland, 373 U.S. 82 (1963)

relating to plea deals, pending charges, prior statements, and plea agreements for numerous witnesses;

and (3) the State violated Ramey’s constitutional

rights by delaying the signing of a witness’ plea agreement until after trial. Ramey did not exhaust any

of these arguments in state court. The unexhausted

nature of these issues bars federal review unless

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Ramey can show cause and prejudice. See Dretke v.

Haley, 541 U.S. 386, 393 (2004).

Ramey summarily argues that “[t]he State’s misconduct, combined with the ineffectiveness of Dr. Willie

for failing to conduct an adequate pretrial investigation and object to the testimony described below at

trial, and the ineffectiveness of state appellate counsel and state habeas counsel for failing to later raise

these issues, all serve as the ‘cause and prejudice’ of

any potential procedural default.” (Dkt. No. 30 at 88).

In reality, Ramey for the most part bases his procedural arguments on the merits of his claims. Before

turning to his arguments, and alternatively the merits, the Court makes the following observations about

Ramey’s cause-and-prejudice briefing.

First, ineffective assistance by his prior attorneys

cannot forgive the procedural bar of these issues.

Ramey alleges that all his prior attorneys were ineffective for not raising the barred claims, but does not

provide specific briefing on how their efforts did not

comply with the deficient performance and actual

prejudice prongs in Strickland v. Washington, 466

U.S. 668, 687 (1984). Ramey has not shown that his

prior attorneys can even serve as cause in this case.

Appellate counsel cannot raise extra-record claims on

direct appeal. See Whitehead v. State, 130 S.W.3d 866,

872 (Tex. Crim. App. 2004). The Supreme Court has

said that ineffective assistance of habeas counsel can

only forgive Strickland claims involving trial counsel’s

representation. See Davila v. Davis, ___ U.S. ___, 137

S. Ct. 2058 (2017). Ramey cannot show cause by

blaming his prior attorneys for not raising these

arguments.

Second, Ramey largely briefs the “cause” component

without providing any briefing specifically addressing

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the “actual prejudice” requirement. In this circuit,

“actual prejudice” requires the petitioner to “establish

not merely that the errors at his trial created a

possibility of prejudice, but that they worked to his

actual and substantial disadvantage, infecting his

entire trial with error of constitutional dimensions.”

Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir.

2008); see also Hernandez v. Stephens, 537 F. App’x

531, 542 (5th Cir. 2013); Barrientes v. Johnson, 221

F.3d 741, 769 (5th Cir. 2000). Ramey simply assumes

that the merits of the claim justifies finding cause and

prejudice. Ramey, however, does not provide specific

briefing on actual prejudice.

The Court will review whether Ramey has otherwise

overcome the procedural bar or, alternatively, whether

this claim has merit.

A. False Testimony

Ramey argues that the prosecution presented false

evidence at trial. In Napue v. Illinois, 360 U.S. 264,

269 (1959), the Supreme Court explained that the

prohibition against false testimony is “implicit in any

concept of ordered liberty.” See also Giglio v. United

States, 405 U.S. 150, 154 (1972). “In order to establish

a Napue violation, the defendant must show (1) the

statements in question are actually false; (2) the

prosecution knew that the statements were false; and

(3) the statements were material.” United States v.

Haese, 162 F.3d 359, 365 (5th Cir. 1998). Ramey

argues that “[t]he State knowingly presented false testimony from several witnesses,” (Dkt. No. 30 at 87),

but only provides argument concerning witnesses

Gerald Manzanalez and Otis Santellana.

51a

1. Manzanalez

Manzanalez testified that he helped Ramey and

Christopher Times break into Kenneth Nairn’s residence and steal firearms. After the murder, Ramey

told Manzanalez that he threw two of the stolen pistols “off the dam.” Tr. Vol. 31 at 31. The State used

Manzanalez’s testimony, along with that from Times,

to tie Ramey to the murder weapons.

During his trial testimony, the prosecution asked

Manzanalez if he had “any kind of deal, or anything

worked out as far as you getting something for your

testimony today?” Tr. Vol. 31 at 17. Manzanalez

answered, “No.” Tr. Vol. 31 at 17. Ramey argues that

“Manzanalez was less than forthcoming” because

“[d]uring a 2014 interview with Petitioner’s

investigator, Mr. Manzanalez stated that he was

aware that the State had offered a lenient disposition

of his pending burglary charges, in exchange for his

testimony – before he testified at Mr. Ramey’s trial.”

(Dkt. No. 30 at 90).

Ramey claims that the prosecution should have

corrected Manzanalez’s testimony. “The prosecution

must . . . reveal the contents of plea agreements with

key government witnesses.” California v. Trombetta,

467 U.S. 479, 485 (1984) (citing Giglio v. United States,

405 U.S. 150 (1972)). Ramey has developed evidence

suggesting that Manzanalez had received a plea offer

from the State, though he had not yet formalized

the deal. Manzanalez has provided an affidavit in

which he says that the State made him a plea offer for

the charges stemming from his involvement in the

Nairn robbery. (Dkt. No. 30, Ex. 65). He was “sure

that [he] knew” of the deal before testifying or, in his

words, “I would not have testified against [Ramey] had

52a

I not understood that I would get a deal.” (Dkt. No. 30,

Ex. 65).

Ramey supports this argument with criminal history records showing that the State indicted

Manzanalez for several charges before trial, but he

pleaded guilty fifty-one days after trial with a recommendation if he agreed “to testify truthfully against

co-defendants including . . . Ramey at any of Ramey’s

trials, including capital murder trial.” (Dkt. No. 30,

Ex. 62). Also, time records from Manzanalez’s attorneys show they had engaged in plea negotiations six

months before trial, though no contact with the prosecution resumed until Manzanalez pleaded guilty.

As an initial matter, Ramey has not shown cause

or prejudice to overcome the procedural bar of this

portion of his claim. Cause “constitut[es] something

external to the petitioner, something that cannot fairly

be attributed to him, that impeded compliance with

the State’s procedural rule.” Maples v. Thomas, 565

U.S. 266, 293 (2012). Ramey contends that the State’s

misconduct, ostensibly in suppressing evidence of

the plea deal, and ineffective representation by his

former attorneys forgives his failure to raise this

claim. (Dkt. No. 30 at 88). The record, however, does

not contain any evidence that the State suppressed the

information serving as a basis for this claim. A diligent

investigation could have uncovered Manzanalez’s

plea agreement, his attorneys’ time records, and,

presumably, his testimony as recorded in his affidavit.

The record does not suggest that Ramey’s prior

attorneys could not have uncovered the material his

current ones have discovered.

He has also not shown actual prejudice. Manzanalez’s

testimony was important to connect Ramey to the

murder weapons. But it was not the only testimony

53a

that did so. Norman and Times likewise testified

about the robbery of the Nairn residence that put the

murder weapon in Ramey’s possession.17 Ramey told

Bradford Butler that he stole guns from the Nairn

residence. Other witnesses testified about Ramey’s

disposal of the weapon after the murders, including

the individual who led the police to the weapon. And,

importantly, Ramey repeatedly told other people

about his involvement in the crime. Ramey has not

shown that any failure to disclose the pending plea

deal harmed the defense. Ramey’s Napue claim

relating to Manzanalez’s testimony is procedurally

barred.

Even if the Court could reach the merits of this

issue, the Court would alternatively deny relief because

Ramey has not shown that any false testimony from

Manzanalez was material. Testimony is material if

“in any reasonable likelihood [it could] have affected

the judgment of the jury.” Giglio, 405 U.S. at 154;

see also Wearry v. Cain, ___ U.S. ___, 136 S.Ct. 1002,

1006 (2016). The evidence supporting Ramey’s conviction was solid. Manzanalez provided incriminating

details, but significant other testimony connected

Ramey to the Nairn robbery and subsequent murders.

Even if the existence of a deal may have allowed jurors

to view Manzanalez’s testimony with skepticism, trial

counsel told jurors that Manzanalez’s testimony “has

no bearing on the guilt or innocence on Mr. Ramey

as to whether or not he committed the offense of

capital murder.” Tr. Vol. 35 at 29. Any false testimony

about Manzanalez’s plea agreement was not material

to trial.

The prosecutor referred to Manzanalez and Times together

in closing arguments. Tr. Vol. 35 at 27, 73-76.

54a

2. Santellana

Ramey also contends that Otis Santellana testified

falsely. Santellana was incarcerated in a cell near

Ramey before trial. Santellana testified that Ramey

disclosed several details about the crime, including

that Ramey shot one of the victims. Ramey argues

that Santellana provided false testimony when he said

that law enforcement officers did not ask him to talk

to Ramey. Also, Ramey argues that the State fed

Santellana details about the crime.

As an initial matter, Ramey has also not overcome

the procedural bar of this issue. In addition to not

showing any external impediment that would amount

to cause, Ramey has not shown actual prejudice.

Santellana was one of a parade of witnesses who

described Ramey’s incriminating admissions. Ramey

told other witnesses, such as Stacey Johnson, about

the murders in much greater detail than he did

Santellana. Norman provided extensive testimony

about Ramey’s role in the killings. Ramey has not

shown cause or actual prejudice to forgive the procedural bar of this portion of claim four.

The Court observes, alternatively, that Ramey does

not support his arguments relating to Santellana with

competent evidence. Ramey relies on two documents

to support this claim. First, Ramey relies on a document allegedly containing Santellana’s account of

jailors instructing him to secure information about the

murders from Ramey.

Ramey’s federal habeas investigator apparently

drafted the document as an affidavit, but Santellana

would not sign it. (Dkt. No. 30, Ex. 69). While Ramey

provides an affidavit from his investigator vouching

55a

for the contents of the document, the unsigned document still is not competent evidence.

Second, Ramey provides an affidavit from a jailor

explainin

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