In the United
States Court of Appeals
For the Fifth Circuit
Robert Moreno Ramos, Petitioner-Appellant,
Janie Cockrell, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
Appeal from the United States
For the Southern District of Texas
February 14, 2002
EMILIO M. GARZA, and DENNIS, Circuit Judges.
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 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
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 were too busy to say
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.
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
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 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 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.
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
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 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." 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
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)).
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, 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
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
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).
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 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 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 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
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
a person of ordinary temper sufficient to render the mind
incapable of cool reflection." Id. § 19.04(c).
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
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 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.
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 district court is also DENIED.
* 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.
2 Testimony at trial,
however, revealed that Mr. Ramos's mother was still alive.
3 In addition, had the jury
answered the mitigating circumstances special issue affirmatively,
a life sentence would have been imposed.
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.
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 . . .").
6 Ake v. Oklahoma,
470 U.S. 68, 86 (1985).