UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 00-40633
ROBERT MORENO RAMOS,
Petitioner - Appellant,
VERSUS
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent - Appellee.
Appeal from the United States District Court For the Southern District of Texas (99-CV-134) February 14, 2002 Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Mr. Robert Moreno Ramos was convicted of capital murder of his
wife and two children and sentenced to death. He now seeks a
Certificate of Appealability (COA) to pursue habeas relief in this
court. In his request for a COA, Mr. Ramos argues (1) that the
trial court erred in not instructing the jury that a life sentence
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 would mean that he was ineligible for parole for 35 years, (2) that
the trial court erred in excusing a venireperson who expressed
reluctance with regard to the death penalty, and (3) that the trial
court erred in refusing Mr. Ramos’s request for a lesser included
offense of voluntary manslaughter. Mr. Ramos has also filed a
motion in this court for reconsideration of this court’s earlier
denial of his request that this case be remanded to the district
court. Because Mr. Ramos has failed to make a substantial showing
of the denial of a constitutional right and has failed to show
reason for remand, his COA request and his motion for
reconsideration are denied.
I. FACTS AND PROCEDURAL HISTORY
In November 1991, Mr. Robert Moreno Ramos began an
extramarital affair with Ms. Marisa Robledo, and in January 1992,
they made plans to marry. Although Mr. Ramos was already married
and had a family, he told Ms. Robledo that he was giving shelter to
a widow and her two children.
On February 7, 1992, a neighbor heard a woman’s scream and
vulgar language emanating from the Ramos house. Over the next few
days, members of the family’s church visited the Ramos residence.
Mr. Ramos told them that the family was moving to California to
handle the affairs of his recently departed mother and that they
2 were too busy to say goodbye.2
On February 10, 1992, Mr. Ramos married Ms. Robledo. When Mr.
Ramos’s cousin inquired as to the whereabouts of his family on
March 4, 1992, Mr. Ramos said they had died in a car accident and
that the bodies had been cremated. Finally, after nearly two
months of conflicting explanations as to his family’s whereabouts,
Mr. Ramos’s sister-in-law alerted the police of the disappearance
of Mr. Ramos’s wife and children. On March 30, 1992, the police
arrived at Mr. Ramos’s home to question him about his missing
family. Over the course of twenty minutes, Mr. Ramos gave several
contradictory accounts of his family’s whereabouts; Mr. Ramos told
police that his family was in Austin, San Antonio, and Mexico. Mr.
Ramos voluntarily accompanied officers to the police station where
he was arrested on various traffic warrants.
On April 6, 1992, officers searched the Ramos home and
discovered extensive blood evidence throughout the house, most
notably the bedroom, hallway, and bathroom. All of the family’s
clothes, as well as the children’s toys, had been secreted away in
the attic. On April 7, 1992, Mr. Ramos told officers that, upon
returning home one day in February, he found his wife and children
dead. He further stated that a few days later, he dug a hole in
his bathroom floor and buried them. He later changed his story,
claiming that after finding his children dead and his wife mortally
2 Testimony at trial, however, revealed that Mr. Ramos’s mother was still alive.
3 wounded from an apparently self-inflicted wound, he ultimately
delivered the fatal blow to her head with a hammer.
Officers obtained a search warrant and exhumed the bodies of
his wife and two children from underneath the newly-tiled floor in
Mr. Ramos’s bathroom. All victims died from blunt head injuries,
most likely caused by blows from a hammer. A miniature sledge
hammer with blood stains was recovered from Mr. Ramos’s residence
in Mexico. A forensic pathologist testified that all the victims
died and were buried within a 12 to 24 hour time period and that it
was very unlikely that the injuries to Mr. Ramos’s wife were self-
inflicted.
In 1993, Mr. Ramos was indicted for and convicted of the
capital murder of his wife and two children. At the penalty phase
and pursuant to Texas Criminal Procedure article 37.071, the jury
was presented with two special issues concerning future
dangerousness and mitigating circumstances. In response to the
question of whether it was probable that Mr. Ramos would commit
future violent act and would pose a continuing threat to society,
the jury answered, “yes.” In response to whether there were
mitigating circumstances that would warrant a sentence of life
imprisonment, rather than the death penalty, the jury answered,
“no.” The trial court sentenced Mr. Ramos to death. Had the jury
answered the future dangerousness special issue negatively,
however, the court would have been required to sentence Mr. Ramos
4 to life imprisonment, rather than death.3 Tex. Crim. Proc. Code
art. 37.071 § (2)(e) (Vernon 1981). Mr. Ramos’s conviction and
death sentence were subsequently affirmed on appeal, and the state
habeas court denied relief.
On April 2, 1999, Mr. Ramos filed a motion for federal habeas
corpus relief in the district court. The state moved for summary
judgment. District Judge Vela adopted the magistrate’s report and
granted summary judgment to the state. Mr. Ramos filed an
application for a Certificate of Appealability (COA) in the
district court. The district court denied Mr. Ramos’s petition for
a COA, and Mr. Ramos now seeks a COA from this court.
II. ANALYSIS
A habeas petitioner cannot appeal the denial of habeas relief
from the district court to the circuit court unless he obtains a
COA. 28 U.S.C. § 2253(c)(1). “Under AEDPA, a COA may not issue
unless ‘the applicant has made a substantial showing of the denial
of a constitutional right.’” Slack v. McDaniel, 529 U.S. 473, 483
(2000) (citing 28 U.S.C. § 2253(c)(2)). “When a district court has
rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner
must demonstrate that reasonable jurists would find the district
3 In addition, had the jury answered the mitigating circumstances special issue affirmatively, a life sentence would have been imposed.
5 court’s assessment of the constitutional claims debatable or
wrong,” or, at least, that the “issues presented were adequate to
deserve encouragement to proceed further.” Id. at 484; Moore v.
Johnson, 225 F.3d 495, 500 (5th Cir. 2000). Although the nature of
the penalty in a capital case is an appropriate consideration in
evaluating a COA application, “the severity of the penalty does
not, in and of itself, require the issuance of a COA. . . . In
capital cases, doubts as to whether a COA should issue must be
resolved in favor of the petitioner.” Clark v. Johnson, 202 F.3d
760, 763 (5th Cir. 2000); Lamb v. Johnson, 179 F.3d 352, 356 (5th
Cir. 1999).
To obtain habeas relief, a petitioner must either demonstrate
that the state court’s decision “was contrary to . . . clearly
established Federal law, as determined by the Supreme Court of the
United States," or "involved an unreasonable application of . . .
clearly established Federal law, as determined by the Supreme Court
of the United States.” Williams v. Taylor, 529 U.S. 362, 412-13
(2000). A state court’s decision is “contrary to” clearly
established federal law if it “arrives at a conclusion opposite to
that reached by th[e] [Supreme] Court on a question of law or if
the state court decides a case differently than this Court has on
a set of materially indistinguishable facts.” Id. A state court’s
decision is an “unreasonable application” of federal law “if the
state court identifies the correct governing legal principle from
th[e] [Supreme] Court’s decisions but unreasonably applies that
6 principle to the facts of the prisoner’s case.” Id. A state
court’s determination of factual issues are presumed correct and
the applicant bears the burden of rebutting the presumption with
clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (1994).
A. Parole Eligibility
Mr. Ramos contends that the trial court violated his Fifth,
Sixth, Eighth, and Fourteenth Amendment rights by denying his
request to instruct the jury that a sentence of life would have
resulted in his being ineligible for parole for 35 years, when he
would be approximately 73 years old.4 Mr. Ramos contends that
because he would not have been eligible for parole under a life
sentence until such an advanced age, he was much less likely to
constitute a future danger to society.
As stated by the United States Supreme Court, “[W]e generally
will defer to a State’s determination as to what a jury should and
should not be told about sentencing. In a State in which parole is
available, how the jury’s knowledge of parole availability will
affect the decision whether or not to impose the death penalty is
speculative, and we shall not lightly second-guess a decision
whether or not to inform a jury of information regarding parole.”
4 Pursuant to Art. 42.18, Sec. 8(b)(2) of the Texas Code of Criminal Procedure: If a prisoner is serving a life sentence for a capital felony, the prisoner is not eligible for release on parole until the actual calendar time the prisoner has served, without consideration of good conduct time, equals 35 calendar years.
7 Simmons v. South Carolina, 512 U.S. 154, 168 (1994). If,
however, the defendant’s future dangerousness is at issue and the
state law prohibits the defendant’s release on parole, due process
requires the jury be informed of the defendant’s parole
ineligibility. Id. at 156; Shafer v. South Carolina, 121 S. Ct.
1266-67 (2001). Although the defendant’s future dangerousness was
at issue here, Texas does not provide “a life-without parole
sentencing alternative to capital punishment.” Allridge v. Scott,
41 F.3d 213, 222 (5th Cir. 1994). At the time of Mr. Ramos’s
conviction, Texas law allowed for the parole of an individual
sentenced to life imprisonment after 35 years. Tex. Crim. P. Art.
42.18 § 8(b)(2) (1991). Although Mr. Ramos may not have been
eligible for parole until he was 73 had he received a life-
imprisonment sentence, this fact does not implicate Simmons, which
requires parole ineligibility as a matter of law, not speculative
future parole ineligibility as a matter of fact. Allridge, 41 F.3d
221-22.
Although Mr. Ramos is correct in noting that several justices
of the Supreme Court have recognized “[the] obvious tension between
th[e] [Texas] rule and our basic holding in Simmons . . .,” Brown
v. Texas, 522 U.S. 940, 940 (1997)(Stevens, J., dissenting from
denial of certiorari), the Supreme Court has not extended Simmons
beyond its original holding: “We have not extended Simmons to
cases where parole ineligibility has not been established as a
matter of state law at the time of the jury’s future dangerousness
8 deliberations in a capital case.” Ramdass v. Angelone, 530 U.S.
156, 165 (2000) (plurality opinion). “Simmons created a workable
rule. The parole-ineligibility instruction is required only when,
assuming the jury fixes the sentence at life, the defendant is
ineligible for parole under state law.” Id. at 166 (emphasis
added); Allridge, 41 F.3d at 222 (Simmons “requires the state to
inform a sentencing jury about a defendant’s parole ineligibility
when, and only when, (1) the state argues that a defendant
represents a future danger to society, and (2) the defendant is
legally ineligible for parole.” (second emphasis added)).
Moreover, in Muniz v. Johnson, 132 F.3d 214, 224 (5th Cir.
1998), this court expressly foreclosed the exact argument made here
by Mr. Ramos, i.e., that Simmons should be extended to situations
in which the defendant’s age and his mandatory time in prison would
make him de facto ineligible for parole:
In Allridge, we distinguished Simmons v. South
Carolina, 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed.2d 133
(1994), upon which Muniz relies, because in Simmons,
state law made the petitioner legally ineligible for
parole, while Texas capital defendants, sentenced when
Muniz was, would be eligible for parole in thirty-five
years if sentenced to life imprisonment. Accordingly,
the claim has no merit under the law of our circuit.
Muniz, 132 F.2d at 224. See also Tinger v. Cockrell, 264 F.3d 521,
9 525 (5th Cir. 2001) (“In Simmons, the Supreme Court expressly held
that its ruling does not apply to Texas, because it does not have
a life-without-parole alternative to capital punishment. . . .
Tinger was not entitled to a jury instruction regarding his 35-year
parole ineligibility, because only prisoners who face life
sentences without any possibility of parole can demand a Simmons
instruction.”); Rudd v. Johnson, 256 F.3d 317, 321 (5th Cir. 2001)
(“[N]either the due process clause nor the Eighth Amendment compels
instructions on parole in Texas.”); Soria v. Johnson, 207 F.3d 232,
243 (5th Cir. 2000) (Reliance on Simmons was unavailing as the
defendant was eligible for parole after a term of years.); Miller
v. Johnson, 200 F.3d 274, 290 (5th Cir. 2000) (same); Hughes v.
Johnson, 191 F.3d 607, 617 (5th Cir. 1999) (This court has
repeatedly rejected claims for extending Simmons to cases in which
defendants become eligible for parole after a term of years.);
Allridge, 41 F.3d at 222 (Because Texas did not statutorily provide
for parole ineligibility at the time of Allridge’s conviction, his
reliance on Simmons was unavailing.); Johnson v. Scott, 68 F.3d
106, 112 (5th Cir. 1995) (“We have consistently held . . . that
neither the due process clause nor the Eighth Amendment compels
instructions on parole in Texas.”); Montoya v. Scott, 65 F.3d 405,
416-17 (5th Cir. 1995) (Simmons does not extend to situations other
than when the defendant is statutorily ineligible for parole).
Consequently, Mr. Ramos has not made a substantial showing of the
10 denial of a constitutional right, and his request for a COA on this
issue is denied.5
B. Juror Challenge for Cause
Mr. Ramos also contends that the trial court violated his
rights under the Sixth, Eighth, and Fourteenth Amendments by
excluding Ms. Olga Linda Perez for cause as a potential juror
because of her general objection to the death penalty in violation
of Witherspoon v. Illinois, 391 U.S. 510 (1998). In Witherspoon,
the Supreme Court held that “a sentence of death cannot be carried
out if the jury that imposed or recommended it was chosen by
excluding veniremen for cause simply because they voiced general
objections to the death penalty or expressed conscientious or
religious scruples against its infliction.” Witherspoon, 391 U.S.
at 521-22. More specifically, the Supreme Court has stated that “a
5 In addition to being foreclosed by precedent, Mr. Ramos’s claim for relief is also barred under Teague v. Lane, 489 U.S. 288 (1989). Ramos “urges us to adopt a rule that would allow him to present evidence concerning his thirty-five year ineligibility for parole. This rule is certainly new as Simmons was based on lifetime parole ineligibility.” Clark v. Johnson, 227 F.3d 273, 282 (5th Cir. 2000); see also Tinger v. Cockrell, 264 F.3d 521, 525 (5th Cir. 2001) (“We have repeatedly held that an extension of the scope of Simmons will constitute a “new” rule under Teague.”); Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir. 2001) (“To hold that a lengthy parole ineligibility is the de facto equivalent of a life sentence without possibility of parole . . . would create a new rule under the law of our Circuit” and is barred by Teague.); Montoya v. Scott, 65 F.3d 405, 416-17 (5th Cir. 1995) (“[A]n extension of Simmons to encompass situations in which a defendant was eligible for parole would be barred under Teague . . .”).
11 juror may not be challenged for cause based on his views about
capital punishment unless those views would prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.” Adams v. Texas,
448 U.S. 38, 45 (1980). “The State does not violate the
Witherspoon doctrine, [however,] when it excludes prospective
jurors who are unable or unwilling to address the penalty questions
with . . . impartiality.” Id. at 46. The state may “bar from jury
service those whose beliefs about capital punishment would lead
them to ignore the law or violate their oaths.” Id. at 50. This
standard “does not require that a juror’s bias be proved with
‘unmistakable clarity.’” Wainwright v. Witt, 469 U.S. 412, 424
(1985).
“[A] court’s exclusion of jurors for cause is a question of
fact.” McCoy v. Lynaugh, 874 F.2d 954, 960 (5th Cir. 1989) (citing
Wainwright, 469 U.S. at 427-29). Although the record may not be
clear, if the trial judge is left “with the definite impression
that a prospective juror would be unable to faithfully and
impartially apply the law,” deference must be paid to his decision,
as he is the one who sees and hears the juror. Wainwright, 469
U.S. at 425-26. A trial court’s finding that a venireman is biased
is “based upon determinations of demeanor and credibility that are
peculiarly within a trial judge’s province.” Id. at 428. Federal
habeas review “gives federal habeas courts no license to
redetermine the credibility of witnesses whose demeanor has been
12 observed by the state trial court but not by them.” Marshall v.
Lonberger, 459 U.S. 422, 434 (1983). “[W]hile the cold record
[may] arouse[] some concern, only the trial judge could tell which
of [the juror’s] answers was said with greatest comprehension and
certainty.” Patton v. Yount, 467 U.S. 1025, 1039-40 (1984). The
trial courts, not federal habeas courts, are assigned the
“difficult task of distinguishing between prospective jurors whose
opposition to capital punishment will not allow them to apply the
law or view the facts impartially and jurors who, though opposed to
capital punishment, will nevertheless, conscientiously apply the
law to the facts adduced at trial.” Id. at 421. The question to
be asked of a reviewing court is not whether it agrees with the
trial court’s findings, but whether those findings are fairly
supported by the record. Id. at 434.
Mr. Ramos argues that during voir dire, Ms. Perez indicated
that she would follow the law and consider the entire range of
punishment if she were chosen as a juror. Ms. Perez stated that
she would be able to listen to the evidence and decide if the state
met its burden and that she would be able to set aside her
religious beliefs about the death penalty “and answer the Special
Issues No. 1 and 2 honestly, based on the evidence presented.”
When the prosecutor explained, however, that the jury’s answers to
the special issues may force the trial court to impose the death
penalty, Ms. Perez indicated that her beliefs would “prevent” and
“impair” her from being a juror in this case. Moreover, Mr. Ramos
13 admits that during other portions of voir dire, Ms. Perez gave
unambiguous answers indicating that she could not assess the death
penalty. In response to a written questionnaire, Ms. Perez stated,
“I could never under any circumstances return a verdict which
requires assessing the death penalty.” Nonetheless, Mr. Ramos
argues that Ms. Perez was a qualified juror who should not have
been excluded.
Mr. Ramos admits that Ms. Perez unequivocally stated that she
could not assess the death penalty. The trial court’s decision to
exclude Ms. Perez was made after listening to her responses and
observing her conduct and demeanor. Patton cautions us not to
conduct an independent assessment of which of Ms. Perez’s
statements should be credited. Mr. Ramos has not rebutted the
presumption of correctness accorded to the trial court’s factual
finding on this issue and has not provided this court with reason
to encroach upon the trial judge’s province. Because the trial
court’s findings are fairly supported by the record, Mr. Ramos is
not entitled to a COA on this claim.
C. Lesser Included Offense
Mr. Ramos’s final argument in his COA application is that
although the trial court instructed the jury on the offense of
capital murder and the lesser included offense of murder, it
erroneously denied his request to instruct the jury on the lesser
included offense of voluntary manslaughter in violation of the
14 Fifth Amendment. Because voluntary manslaughter is a lesser
included offense of capital murder, Nobles v. Johnson, 127 F.3d
409, 418 (5th Cir. 1997), Mr. Ramos argues that the trial court’s
actions violated Beck v. Alabama, 447 U.S. 625, 638 (1980), which
prohibits a court from imposing a death sentence if the jury was
not permitted to consider a lesser included offense supported by
the evidence.
Under Beck, 447 U.S. at 634, a capital defendant is entitled
to a lesser included offense instruction only “if the evidence
would permit a jury rationally to find him guilty of the lesser
offense and to acquit him of the greater.” See also Cantu v.
Collins, 967 F.2d 1006, 1013 (5th Cir. 1992); Lincecum v. Collins,
958 F.2d 1271, 1276 (5th Cir. 1992). The lesser included offense
of voluntary manslaughter need only be given to the jury if there
is “proof necessary to establish the offense charged and if there
is some evidence in the record” that the defendant is guilty only
of voluntary manslaughter. Nobles, 127 F.3d at 418-19. At the
time of Mr. Ramos’s trial, a person was guilty of voluntary
manslaughter under Texas law if “he cause[d] the death of an
individual under circumstances that would constitute murder under
Section 19.02 of th[e] [Texas Penal] Code, except that he cause[d]
the death under the immediate influence of sudden passion arising
from an adequate cause.” Tex. Pen. Code § 19.04(a) (West 1979).
The statute further defined “adequate cause” as “cause that would
commonly produce a degree of anger, rage, resentment, or terror in
15 a person of ordinary temper sufficient to render the mind incapable
of cool reflection.” Id. § 19.04(c).
As the magistrate’s report and recommendation stated, there is
inadequate evidence in the record to support a charge for the
lesser included offense of voluntary manslaughter. The only
possible evidence of voluntary manslaughter in the record is the
testimony of the officer who interviewed Mr. Ramos and who stated
that Mr. Ramos told him that upon arriving at home, Mr. Ramos
“[f]ound a hammer in [his wife’s] hand and he got upset because the
kids were dead. He tried CPR or something like that and then got
the same hammer and hit her on the head.” This story, however, is
only one version of a number of stories that Mr. Ramos told to the
police. Other than his own assertions, Mr. Ramos cites no evidence
that such a voluntary manslaughter charge is warranted. “[The
defendant’s] unsupported conjecture is hardly probative on the
issue of whether he acted under the immediate influence of sudden
passion.” Cantu, 967 F.2d at 1014. Moreover, Mr. Ramos’s
contention that he tried to perform CPR belies the assertion that
his conduct arose out of “the immediate influence of sudden passion
arising from an adequate cause.” Cf. Anderson v. Collins, 18 F.3d
1208, 1219 (5th Cir. 1994) (concluding that an intervening action
requiring cool reflection and calmness refutes the suggestion that
a rational trier of fact could convict a defendant of voluntary
manslaughter). Thus, a COA should not issue on this ground.
16 D. Motion for Remand
After filing his motion for a COA, Mr. Ramos moved to remand
this case to the district court by raising an equitable tolling
argument and by arguing that the Texas Court of Criminal Appeals
refused to provide him with Ake6 motions in the case. As these
claims were wholly unrelated to this case, the motion was denied.
Mr. Ramos then filed for reconsideration, raising the new argument
that “by failing to continue the appointment of Mr. Joe Connors
[Ramos’s appellate counsel] as counsel for applicant in the state
habeas corpus proceedings,” the trial court violated its own
precedent in Stotts v. Wisser, 894 S.W.2d 366 (Tex. Crim. App.
1995), and Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App.
1989) (en banc). Although Mr. Ramos recognizes that this claim is
procedurally barred because it was not raised in the district
court, he seeks permission to raise it nonetheless under Martinez
v. Johnson, 225 F.3d 229 (5th Cir. 2001), which allows procedurally
barred claims to be raised if the defendant shows cause and actual
prejudice. In purporting to establish cause to raise this new
argument, Mr. Ramos alleges that it was impossible for the state or
federal habeas counsel to raise this argument because certain
documents were “secretly” filed under seal in the Texas Court of
Criminal Appeals to which he did not have access.
Based on the Mr. Ramos’s contention that there were sealed
6 Ake v. Oklahoma, 470 U.S. 68, 86 (1985).
17 documents in the state record to which he did not have access, this
court allowed Mr. Ramos to file a supplemental brief and
documentation in support of his claim. Mr. Ramos submitted
documents demonstrating that he was denied the opportunity to have
his appointed trial counsel continue as his counsel in the state
habeas proceeding, despite requests by Mr. Ramos and his appellate
counsel. Mr. Ramos was then granted leave to file his letter brief
out-of-time.
Despite Mr. Ramos’s contention, the key documents which he
claims were secretly filed under seal in the state court are
clearly available in the state and federal habeas record, i.e., (1)
the trial court’s findings describing the request of Mr. Ramos and
Mr. Connors that Mr. Connors be appointed state habeas counsel, and
(2) the order of the Texas Court of Criminal Appeals appointing Mr.
Kyle Welch as Ramos’s state habeas counsel instead of Mr. Connors.
Thus, Mr. Ramos’s allegation that he did not have access to these
documents is unfounded and his argument for “cause” to excuse his
failure to raise this argument in the district court is without
merit. His motion for reconsideration is therefore denied.
III. CONCLUSION
For the foregoing reasons, Mr. Ramos’s request for a COA is
DENIED. Mr. Ramos’s outstanding motion for reconsideration of this
court’s earlier denial of his motion to remand this case to the
18 district court is also DENIED.