Opinion
CIVIL SA-20-CA-01448-FB
07-31-2024
ISIDRO RAMOS, III, TDCJ No. 02150358, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER ON REMAND
FRED BIERY, UNITED STATES DISTRICT JUDGE
In August 2021, this Court dismissed as untimely pro se petitioner Isidro Ramos, III's federal petition for a writ of habeas corpus challenging his 2017 state court conviction for continuous sexual abuse of a child. (ECF No. 12). On appeal, the Fifth Circuit Court of Appeals granted petitioner a certificate of appealability, reversed this Court's judgment dismissing the petition as time-barred, and remanded to this Court for further consideration of petitioner's federal habeas petition. Ramos, III v. Lumpkin, No. 21-50775, 2023 WL 2967898 (5th Cir. 2023) (unpublished); (ECF No. 18).
Currently before the Court are petitioner's original petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) and memorandum in support (ECF No. 5), respondent Bobby Lumpkin's amended answer (ECF No. 21), and petitioner's reply (ECF No. 24) thereto. Having reviewed the record and pleadings submitted by both parties, the Court concludes petitioner is not entitled to relief under the standards prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254(d). Petitioner is also denied a certificate of appealability.
I. Background
A. The Offense
The facts of petitioner's case were accurately summarized by the Texas Fourth Court of Appeals in an order affirming the denial of petitioner's post-trial request for DNA testing:
The evidence at [petitioner]'s trial established that on December 8, 2014, he lived in a house with his girlfriend and two of her daughters. That day, [petitioner]'s girlfriend came home from work early and discovered [petitioner] coming out of their bedroom with his pants undone and her then fourteen-year-old daughter, the complainant, in the bedroom naked from the waist down. [Petitioner] left the house, and the complainant gave a statement to the police. [Petitioner] was arrested that day, and both [petitioner] and the complainant were examined by a sexual abuse nurse examiner (SANE).
At trial, the complainant testified [petitioner] had started sexually assaulting her when she was in the seventh grade. She described [petitioner]'s assaultive conduct in the years preceding [petitioner]'s arrest. She testified that on the day of his arrest, [petitioner] picked her up from school and took her home. She testified he told her to go to her mother's bedroom, but she refused. She testified he then “got me by my hand and told me to go and I told him no. And he pulled me to my mom's room, took my pants off of me, laid me down and got on top of me, put his penis in my vagina.” At that point her mother walked in the house and [petitioner] quickly got off her and walked out of the room.
In addition to the testimony of the complainant and several outcry witnesses, the State presented the testimony of forensic scientists employed by the Bexar County Criminal Investigation Laboratory. One of the scientists testified he examined some of the clothing that had been collected on December 8, 2014, and identified the presence of sperm on the complainant's underwear. Another scientist testified she created known DNA profiles for both [petitioner] and the complainant, and she conducted further testing on the complainant's underwear, [petitioner]'s underwear, and penile swabs taken from [petitioner]. The scientist testified she found only two donors of DNA indicated on the cutting from the complainant's underwear. One donor was the complainant, and [petitioner] could not be excluded as the second source. [Petitioner]'s underwear and the penile swabs also contained only two donors of human DNA; one was [petitioner], and the complainant could not be excluded as the second source.
On cross-examination, [petitioner] questioned the scientist about DNA transfer. He elicited testimony that it was possible for semen to be transferred in comingled laundry. The scientist also testified the complainant's DNA could have gotten on
[petitioner]'s hands if he had rubbed the complainant's neck. And she agreed it would be possible for [petitioner] to have transferred the complainant's DNA from his hands to his penis if he urinated soon after rubbing her neck.
In his closing argument at trial, [petitioner] argued the complainant changed her story multiple times, was not credible, and she should not be believed. Counsel expressly stated [petitioner] did not deny the DNA findings but argued there was an innocent explanation-secondary transfer and laundry transfer.Ramos v. State, No. 04-20-00564-CR, 2021 WL 4173305, at *1-2 (Tex. App.-San Antonio, Sept. 15, 2021, no. pet.); (ECF No. 22-2).
B. Procedural History
After hearing all of the evidence, a Bexar County jury convicted petitioner of one count of continuous sexual abuse of a child and sentenced him to thirty years of imprisonment. State v. Ramos, No. 2015CR9685 (144th Dist. Ct., Bexar Cnty., Tex. July 6, 2017); (ECF No. 10-9 at 17374). Petitioner was also convicted of five counts of sexual assault of a child under the same cause number but received a suspended sentence for each count. Id. at 175-84. After reforming the judgments to correct clerical errors, the Texas Fourth Court of Appeals affirmed the convictions on direct appeal. Ramos v. State, No. 04-17-00446-CR, 2018 WL 6793545 (Tex. App.-San Antonio, Dec. 27, 2018, no. pet.); (ECF No. 10-2).
Petitioner did not appeal the appellate court's decision by filing a petition for discretionary review with the Texas Court of Criminal Appeals. Instead, petitioner challenged the constitutionality of his convictions by filing an application for state habeas corpus relief in the state trial court. Ex parte Ramos, No. 91,308-01 (Tex. Crim. App.); (ECF No. 10-21 at 4-19). The Texas Court of Criminal Appeals eventually denied the application without written order based, in part, on the findings of the trial court. (ECF No. 10-20).
See also http://www.search.txcourts.gov, search for “Ramos, Isidro” last visited July 30, 2024.
Petitioner initiated the instant proceedings in December 2020 by filing his original § 2254 petition (ECF No. 1), which he later supplemented with a memorandum in support (ECF No. 5). On the motion of respondent, this Court dismissed petitioner's § 2254 petition as untimely, finding that petitioner was 17 days late in filing the petition and failed to establish extraordinary circumstances that would warrant equitable tolling of the limitations period. (ECF No. 12). Petitioner appealed this decision, and respondent subsequently conceded that the petition was timely filed. The Fifth Circuit then vacated this Court's judgment and remanded for further consideration of petitioner's § 2254 petition. Ramos, III v. Lumpkin, No. 21-50775, 2023 WL 2967898 (5th Cir. 2023) (unpublished); (ECF No. 18).
Supplemental briefing has now been provided by both parties. (ECF Nos. 21, 24). The case is ripe for adjudication.
II. Petitioner's Allegations
In his § 2254 petition and supplemental memorandum in support, petitioner set forth the following claims for relief:
1. His trial counsel rendered ineffective assistance by:
(a) failing to object to the admission of the SANE examination or the testimony of the SANE nurse examiner, and
(b) failing to have certain evidence tested for DNA.
2. The prosecution engaged in misconduct during closing argument by:
(a) shifting the burden of proof,
(b) vouching for the credibility of State witnesses, and
(c) referring to evidence that is not in the record.
3. His appellate counsel provided ineffective assistance by failing to argue that the trial court erred in overruling his objections to the prosecution's closing argument.
III. Standard of Review
Petitioner's federal habeas petition is governed by the heightened standard of review provided by the AEDPA. 28 U.S.C.A. § 2254. Under § 2254(d), a petitioner may not obtain federal habeas corpus relief on any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either: (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. Brown v. Payton, 544 U.S. 133, 141 (2005). This intentionally difficult standard stops just short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).
A federal habeas court's inquiry into unreasonableness should always be objective rather than subjective, with a focus on whether the state court's application of clearly established federal law was “objectively unreasonable” and not whether it was incorrect or erroneous. McDaniel v. Brown, 558 U.S. 120 (2010); Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Even a strong case for relief does not mean the state court's contrary conclusion was unreasonable, regardless of whether the federal habeas court would have reached a different conclusion itself. Richter, 562 U.S. at 102. Instead, a petitioner must show that the decision was objectively unreasonable, which is a “substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003).
So long as “fairminded jurists could disagree” on the correctness of the state court's decision, a state court's determination that a claim lacks merit precludes federal habeas relief. Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In other words, to obtain federal habeas relief on a claim previously adjudicated on the merits in state court, petitioner must show that the state court's ruling “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103; see also Bobby v. Dixon, 565 U.S. 23, 24 (2011).
IV. Merits Analysis
A. Trial Counsel (Claim 1)
In Claim 1, petitioner asserts that his trial counsel, Matthew Allen and Jennifer Zarka, rendered ineffective assistance during the guilt/innocence phase of his July 2017 trial. Specifically, petitioner faults counsel for failing to challenge the admissibility of the SANE examination (State Exhibit 17) and the testimony of the SANE nurse examiner, Linda Witte. Petitioner also faults counsel for not seeking additional DNA testing to support his defensive theory of “secondary transfer.”
Both of these allegations were raised and rejected during petitioner's state habeas proceedings. As discussed below, petitioner fails to demonstrate that the state habeas court's rejection of these allegations was either contrary to, or an unreasonable application of, Supreme Court precedent.
1. The Strickland Standard
Sixth Amendment claims concerning the alleged ineffective assistance of trial counsel (IATC claims) are reviewed under the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner cannot establish a violation of his Sixth Amendment right to counsel unless he demonstrates (1) counsel's performance was deficient and (2) this deficiency prejudiced his defense. 466 U.S. at 687-88, 690. According to the Supreme Court, “[s]urmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
When determining whether counsel performed deficiently, courts “must be highly deferential” to counsel's conduct, and a petitioner must show that counsel's performance fell beyond the bounds of prevailing objective professional standards. Strickland, 466 U.S. at 687-89. Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 571 U.S. 12, 22 (2013) (quoting Strickland, 466 U.S. at 690). To demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Under this prong, the “likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112. A habeas petitioner has the burden of proving both prongs of the Strickland test. Wong v. Belmontes, 558 U.S. 15, 27 (2009).
Finally, IATC claims are considered mixed questions of law and fact and are analyzed under the “unreasonable application” standard of 28 U.S.C. § 2254(d)(1). See Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010). Where, as here, the state court adjudicated the IATC claims on the merits, a court must review a petitioner's claims under the “doubly deferential” standards of both Strickland and Section 2254(d). See Woods v. Etherton, 578 U.S 113, 117 (2016) (citing Cullen v. Pinholster, 563 U.S. 170, 190 (2011)); Knowles v. Mirzayance, 556 U.S. 111, 112 (2009). In such cases, the “pivotal question” is not “whether defense counsel's performance fell below Strickland's standards,” but whether “the state court's application of the Strickland standard was unreasonable.” Richter, 562 U.S at 101. That is to say, the question to be asked in this case is not whether counsel's actions were reasonable, but whether “there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. at 105.
2. Failure to Object
Petitioner first contends that counsel was ineffective for failing to challenge the admissibility of the SANE examination and the testimony of the SANE nurse examiner, Linda Witte. According to petitioner, both the SANE examination and the testimony of the SANE examiner were inadmissible as hearsay because the exam was not for “medical purposes.” Petitioner contends there was no beneficial reason not to object when the evidence and testimony were clearly inadmissible. Petitioner raised this allegation during his state habeas proceedings. In response, trial counsel submitted an affidavit wherein they explained their reasons for not objecting:
State's Exhibit 17 was the SANE exam for the defendant, Isidro Ramos. [Petitioner] is correct in that objection could have been made to keep out the SANE exam and testimony from [petitioner]'s SANE exam as the nurse stated it was “not for medical purposes.” However, part of our strategy was to explain how DNA could have ended up in different places such as the complainant's underwear, sheets, etc. To do this, we thought it was most effective to elicit testimony about [petitioner]'s psoriasis. The skin condition could have led to excess skin and DNA showing up or appearing where it would not normally with a person without psoriasis. The skin condition was notated by the nurse as “scaley [sic] pink skin in pubic area above penis.” This was again elicited to attack the credibility of the complainant as she stated she had been sexually assaulted numerous times but never described this skin condition and actually stated that everything seemed normal on [petitioner]. Also, it showed that [petitioner] was cooperative and had nothing to hide by submitting to the SANE exam. Further, there was no evidence obtained from the SANE exam that was negative towards petitioner. We felt that we could only gain credibility and present favorable evidence about [petitioner] in front of the jury.(ECF No. 10-21 at 122, 125).
The state habeas trial court found trial counsels' affidavits to be truthful and credible and concluded that petitioner failed to establish counsel were ineffective under Strickland. Id. at 114-20. These findings and conclusions were then adopted by the Texas Court of Criminal Appeals when it denied petitioner's state habeas application. (ECF No. 10-20). Such determinations, including the trial court's credibility findings and implied finding that counsels' choices were strategic, are entitled to a presumption of correctness unless they lack fair support in the record. Miller v. Thaler, 714 F.3d 897, 903 (5th Cir. 2013).
Petitioner fails to show that the state court's ruling was contrary to or involved an unreasonable application of Strickland. Trial counsel generally have “wide latitude in deciding how best to represent a client....” Yarborough v. Gentry, 540 U.S. 1, 5-6, 8 (2003) (“When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect.”). “A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless 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). Thus, counsel's choice of a defense and his strategy in arguing that defense to a jury are “virtually unchallengeable.” Strickland, 466 U.S. at 690; Trottie v. Stephens, 720 F.3d 231, 243 (5th Cir. 2011) (holding the failure to present a particular line of argument is presumed to be the result of strategic choice).
Here, trial counsels' affidavits-adopted by the state habeas court and ultimately by the Texas Court of Criminal Appeals-explained that they did not object to the admission of the SANE examination in order to elicit testimony regarding petitioner's psoriasis, which counsel believed would further support the defense's theory of DNA transfer and help undermine the credibility of the complainant. Counsel also believed there was no risk involved in admitting the examination, as there was no negative evidence obtained from the examination, and that allowing the testimony further demonstrated petitioner's cooperation in the investigation. Indeed, petitioner consented to the SANE examination from the beginning. (ECF No. 10-16 at 20-23).
Other than speculating that the examination was inadmissible, petitioner has not shown that counsels' strategic decision to admit the examination was unreasonable, much less demonstrated that state court's ruling on trial counsels' strategy “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Consequently, viewing the allegation under the “doubly” deferential review encompassed by Strickland and the AEDPA, relief must be denied. See Richter, 562 U.S at 105.
3. Failure to Conduct DNA Testing
Petitioner next asserts that his trial counsel were ineffective for failing to obtain independent DNA testing on swabs that were taken from his hands and fingers during the SANE examination. He maintains that had the complainant's DNA been found on his hands and fingers, it would have supported his defensive theory of secondary transfer-that he allegedly rubbed the complainant's neck before using the restroom-and would have provided the jury with an explanation as to how the complainant's DNA was found on his underwear and penis.
As with the previous IATC claim, petitioner raised this allegation during his state habeas proceedings. Trial counsel responded to the assertion as follows:
[Petitioner] states that DNA testing done on his hands would have shown that complainant's DNA was on his hands thus confirming the defensive theory that DNA transfer occurred when he rubbed the back of complainant's neck with his hand. This
statement is flawed in that if DNA testing was done and it had shown what [petitioner] states it would have shown, this could have been used by the State to further their theory that he sexually assaulted complainant on that day and thus had her DNA on his hands. If the testing was done and it was shown that he didn't have her DNA on his hands, this would have been used by the State to attack our theory of DNA transfer on that day by simply touching her neck. Also, if no DNA was found on his hands, it could have easily been attributed to him washing his hands after the alleged touching and before the SANE exam and DNA retrieval.(ECF No. 10-21 at 123, 126).
Again, the state habeas trial court found trial counsels' affidavits “credible and truthful” and concluded that petitioner failed to establish that counsel were ineffective under the Strickland standard. Id. at 114-20. The Texas Court of Criminal Appeals then adopted these findings and conclusions when it denied petitioner's state habeas application. (ECF No. 10-20).
Petitioner fails to show that the state court's ruling on trial counsels' investigation and strategy was contrary to, or involved an unreasonable application of Strickland or that it was an unreasonable determination of the facts based on the evidence in the record. Strickland's first prong to demonstrating an IATC claim “sets a high bar.” Buck v. Davis, 580 U.S. 100, 118 (2017). Indeed, trial counsel generally have broad discretion when it comes to deciding how best to proceed strategically. Strickland, 466 U.S. at 673; Ward v. Stephens, 777 F.3d 250, 264 (5th Cir. 2015) (noting the Supreme Court has emphasized counsel has “wide latitude in deciding how best to represent a client.”). This wide latitude given to trial counsel includes the discretion to determine how best to utilize limited investigative resources available. Richter, 562 U.S. at 107 (“Counsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.”). It also means that while counsel is required to undertake a reasonable investigation, counsel's choice of a defense and his strategy in arguing that defense to a jury are “virtually unchallengeable.” Strickland, 466 U.S. at 690.
In this case, trial counsels' affidavits-adopted by the state habeas court and ultimately by the Texas Court of Criminal Appeals-explain that they did not seek further DNA testing because the results could either have been used against petitioner or could have undermined the defense's strategy concerning DNA transfer. Additionally, whether petitioner had the complainant's DNA on his hands on this particular date, December 8, 2014, would have been irrelevant to the other five counts on which petitioner was indicted. Thus, there was nothing objectively unreasonable with trial counsels' decision not to obtain additional DNA testing on petitioner's hands and fingers. Because counsels' decision was strategic and imminently reasonable, it “will not support an ineffective assistance claim.” United States v. Bernard, 762 F.3d 467, 472 (5th Cir. 2014) (citation omitted). Petitioner has therefore not shown that the state court's denial of these claims was an unreasonable application of Strickland. Relief is denied.
B. Prosecutorial Misconduct (Claim 2)
In his second allegation, petitioner contends the prosecutor committed misconduct during closing argument by shifting the burden of proof onto the defense. Petitioner also contends that the prosecutor impermissibly vouched for the credibility of the complainant and referred to evidence that was not presented at trial. As discussed below, these allegations are procedurally defaulted and meritless.
1. Procedural Default
Petitioner first raised these allegations in his initial application for state habeas corpus relief. (ECF No. 10-21 at 4-19). Citing Ex parte Townsend, 137 S.W.3d 79, 81-82 (Tex. Crim. App. 2004), the state habeas trial court rejected the allegations because they could have been raised on direct appeal. Id. at 119. The Texas Court of Criminal Appeals later adopted the state habeas court's findings and denied Petitioner's state habeas application. (ECF No. 10-20). Based on this procedural history, petitioner's claims are now procedurally barred from federal habeas review.
Although respondent did not address the procedural default issue in his Answer (ECF No. 21), the Court can raise the issue of procedural default sua sponte. See Magourik v. Phillips, 144 F.3d 348, 360 (5th Cir. 1998) (“a federal court may, in the exercise of its judicial discretion, raise procedural default sua sponte”). Given that the Court has alternatively addressed the merits of petitioner's allegations, the interests of justice do not require an opportunity for petitioner to respond to the default. Id. at 360 (“Once a federal district court elects to raise procedural default sua sponte, the court should consider whether justice requires that the habeas petitioner be afforded with notice and a reasonable opportunity to present briefing and argument opposing dismissal.”).
Procedural default occurs where a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that state procedural rule provides an independent and adequate ground for the dismissal. Davila v. Davis, 582 U.S. 521, 527 (2017); Canales v. Stephens, 765 F.3d 551, 562 (5th Cir. 2014) (citing Maples v. Thomas, 565 U.S. 266, 280 (2012)). The “independent” and “adequate” requirements are satisfied where the state court clearly indicates that its dismissal of a particular claim rests upon a state ground that bars relief, and that bar is strictly and regularly followed by the state courts. Roberts v. Thaler, 681 F.3d 597, 604 (5th Cir. 2012) (citing Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001)). This doctrine ensures that federal courts give proper respect to state procedural rules. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991).
In this case, the state habeas trial court's finding of procedural default constitutes “an adequate and independent state procedural rule” that bars federal habeas review. Davila, 582 U.S. at 527. The state court determined petitioner's allegations to be procedurally defaulted under Ex parte Townsend, 137 S.W.3d at 81, a case which relies on Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1998). This rule from Gardner-which bars consideration of claims that could have been but were not raised on direct appeal-has repeatedly been held by the Fifth Circuit to constitute “an adequate state ground capable of barring federal habeas review.” Aguilar v. Dretke, 428 F.3d 526, 535 (5th Cir. 2005) (citing Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004)).
Consequently, petitioner is precluded from federal habeas review unless he can show cause for the default and resulting prejudice, or demonstrate that the Court's failure to consider his claim will result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750-51; Busby, 359 F.3d at 718. Petitioner does not make either showing. Thus, circuit precedent compels the denial of petitioner's second claim as procedurally defaulted.
2. Alternative Merits Analysis
Even assuming petitioner's allegations were not procedurally barred, federal habeas relief is unwarranted because the claims lack merit under a de novo standard of review. See Ward v. Stephens, 777 F.3d 250, 256 (5th Cir. 2015) (applying a de novo standard of review for claims that have not been adjudicated on the merits in state court).
Allegations of prosecutorial misconduct are analyzed in two steps. Trottie v. Stephens, 720 F.3d 231, 253 (5th Cir. 2013) (citation omitted). The first is to evaluate whether the prosecutor made an improper remark. United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007) (citation omitted). Under Texas law, the four permissible areas of jury argument are: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to the argument of opposing counsel, and (4) pleas for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). “[A] prosecutor's closing argument cannot roam beyond the evidence presented during trial: Except to the extent the prosecutor bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses.” United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999) (alteration, citation, and internal quotation marks omitted).
If a remark is found improper, the second step is to determine whether the defendant suffered prejudice. Trottie, 720 F.3d at 253. This second inquiry sets a high bar: “Improper prosecutorial comments constitute reversible error only where the defendant's right to a fair trial is substantially affected.” United States v. Ebron, 683 F.3d 105, 140 (5th Cir. 2012) (quoting United States v. Holmes, 406 F.3d 337, 355-56 (5th Cir. 2005)). A criminal conviction should not be “lightly overturned on the basis of a prosecutor's comments standing alone,” but rather only when “the prosecutor's remarks cast serious doubt on the correctness of the jury's verdict.” Id. Thus, in deciding whether serious doubt infected the verdict, the Court considers three factors: “(1) the magnitude of the prejudicial effect of the prosecutor's remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.” Id. (quoting United States v. Mares, 402 F.3d 511, 515 (5th Cir. 2005)) (internal quotation marks omitted).
(a) Burden of Proof
During closing argument, the prosecutor made several references to the fact that the defense has the ability to call its own witnesses, conduct its own DNA testing, and present evidence on petitioner's behalf. See ECF No. 10-18 at 120 (alluding to fact that defense could have subpoenaed the complainant's friend to corroborate petitioner's whereabouts), 121 (implying the defense could have tested the comforter for DNA), 127 (implying the defense could have presented pictures that the complainant allegedly downloaded on his phone), and 129 (implying the defense could have called an expert witness to talk about DNA transfer). The trial court denied defense counsel's objections on the grounds that the jury had already been instructed on the law. Id.
Petitioner contends that the prosecution's statements were an attempt to shift the burden of proof to the defense. A review of the record, however, reveals that the prosecutor's comments were a rebuttal to defense counsels' arguments attacking the State's evidence. During their closing argument, counsel mentioned the possibility that Lauren Rivera, the complainant's friend, could have testified that petitioner drove her home after school around 4:20 p.m. on the day in question. (ECF No. 10-18 at 90, 92, 110). Counsel also questioned why the lead detective did not obtain petitioner's phone or Kindle despite mentioning them during the interrogation. Id. at 91. And counsel repeatedly referenced the fact that DNA could have been transferred in the laundry while faulting the State for “barely test[ing] any of it.” Id. at 91, 112, 115-17. Thus, viewed in context with the entire record, the prosecutor's final argument was merely a response to the defense's assertions concerning the alleged lack of evidence supporting the conviction.
Moreover, under Texas law, a prosecutor “may comment on the defendant's failure to produce witnesses and evidence so long as the remark does not fault the defendant for exercising his right not to testify.” Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000) (citations omitted). Here, the prosecutor's argument did not amount to a prohibited reference to petitioner's failure to testify. As such, petitioner fails to demonstrate that the prosecution's comments were improper, much less that they impermissibly shifted the burden of proof onto the defense.
Regardless, even if the above comments were somehow considered improper attempts to shift the burden of proof, this Court finds that petitioner was not prejudiced by the remarks. Prior to closing arguments, the trial court admonished the jury thoroughly on the fact that the burden of proof was on the State:
The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case.
The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt. If it fails to do so, you must acquit the defendant.
(ECF No. 10-18 at 80). Defense counsel then reiterated these instructions during closing argument. Id. at 88 (“The burden of proof in all criminal cases rests upon the State throughout trial and never shifts to the defense.”). A jury is presumed to follow such instructions from a trial court. See Blueford v. Arkansas, 566 U.S. 599, 606 (2012) (finding jury is “presumed to follow its instructions.”) (citing Weeks v. Angelone, 528 U.S. 225, 234 (2000)). Given the strong instruction by the trial court and defense counsel, it is unlikely that the prosecutor's remarks “cast serious doubt on the correctness of the jury's verdict.” Ebron, 683 F.3d at 140.
(b) Vouching for Witness
Petitioner next contends that the prosecutor impermissibly vouched for the credibility of the complainant. During closing argument, the prosecutot made the following statement to the jury:
Remember during jury selection we talked about kids lying? They lie all the time. But they don't lie about this. And if you-if you-you want to believe [the complainant]'s lying, then she probably deserves the Academy Award because what a performance. What a performance while she's testifying.(ECF No. 10-18 at 124). The trial court overruled counsel's objection to this remark. Id.
“[A] prosecutor may not personally vouch for the credibility of a [prosecution] witness, as doing so may imply that the prosecutor has additional personal knowledge about the witness and facts that confirm such witness' testimony, or may add credence to such witness' testimony.” United States v. Washington, 44 F.3d 1271, 1278 (5th Cir. 1995). While a prosecutor may argue “fair inferences from the evidence that a witness has no motive to lie,” he or she “cannot express a personal opinion on the credibility of witnesses.” U.S. v. Gracia, 522 F.3d 597, 600 (5th Cir. 2008). The test for improper vouching for the credibility of a witness is whether the prosecutor's expression might reasonably lead the jury to believe that there is other evidence, unknown or unavailable to the jury, on which the prosecutor was convinced of the accused's guilt. U.S. v. McCann, 613 F.3rd 486, 495 (5th Cir. 2010).
Here, petitioner contends that the prosecutor is vouching for the credibility of the complainant simply by stating that she did not lie during her testimony. But such a statement does not vouch for the witnesses' credibility-there is no implication that the prosecutor had some secret basis for asserting that petitioner was guilty. Id. at 496. Rather, it speaks only to the truthfulness of the testimony given by the complainant during the trial, something that was placed in doubt on several occasions by defense counsel during their closing arguments. See ECF No. 10-18 at 110 (noting that complainant's testimony has “changed from time to time”), 114 (implying her testimony was “coached” and her story has changed over the years), and 116 (suggesting complainant lied in order to take her mother's side). Because the prosecutor's statement was made in direct response to defense counsel's representations that the complainant was lying, it was not improper. See, e.g., Norris v. Davis, 826 F.3d 821, 832 n.10 (5th Cir. 2016) (recognizing the four areas of permissible subjects for jury argument under Texas law as summation of the evidence, reasonable inference from the evidence, answers to opposing counsel's argument, and pleas for law enforcement).
(c) Facts Not in Evidence
Lastly, petitioner argues that prosecutor committed misconduct during closing argument by referring to facts that were not in evidence. Specifically, petitioner refers to the following statement: “Apparently, they think that [the complainant] must be lying because she would have gotten pregnant. I have a friend that had chemotherapy. He can't have children now.” (ECF No. 10-18 at 122). Following defense counsel's objection, which was granted, the trial court instructed the jury to disregard the statement. Id.
Petitioner fails to demonstrate that the prosecutor's comment “cast serious doubt on the correctness of the jury's verdict.” Ebron, 683 F.3d at 140. The off-the-cuff remark, made in response to defense counsel questioning the veracity of the complainant's testimony based on the fact that she never became pregnant (ECF No. 10-18 at 106), was only mentioned briefly and was never raised again throughout petitioner's trial. Moreover, any effect was quickly cured by the trial court's instructions to disregard the statement. See Blueford, 566 U.S. at 606 (finding jury is “presumed to follow its instructions.”).
Finally, as noted by the Texas Fourth Court of Appeals on direct appeal, the jury heard testimony from the complainant, the fourteen-year-old daughter of petitioner's live-in girlfriend, that petitioner consistently raped her almost every day for over two months. Ramos, 2018 WL 6793545 at *3; (ECF No. 10-2 at 6). This testimony was corroborated by several outcry witnesses as well as the testimonies from two forensic scientists. Id. As such, the magnitude of the prejudicial effect of the prosecutor's sole remark, if any, was slight compared to the strength of the evidence supporting the conviction. Ebron, 683 F.3d at 140. Habeas relief is therefore denied.
C. Appellate Counsel (Claim 3)
In his final allegation, petitioner contends he received ineffective assistance of counsel during his direct appeal proceedings. A criminal defendant is constitutionally entitled to effective assistance of appellate counsel when he has a right to appeal under state law. Evitts v. Lucey, 469 U.S. 387 (1985); United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000). The familiar standard set out in Strickland to prove that counsel rendered unconstitutionally ineffective assistance applies equally to both trial and appellate attorneys. Smith v. Robbins, 528 U.S. 259, 285 (2000); Dorsey v. Stephens, 720 F.3d 309, 319 (5th Cir. 2013). Thus, to obtain relief, petitioner must demonstrate that (1) appellate counsel's conduct was objectively unreasonable under then-current legal standards, and (2) there is a reasonable probability that, but for appellate counsel's deficient performance, the outcome of petitioner's appeal would have been different. See Robbins, 528 U.S. at 285; Higgins v. Cain, 720 F.3d 255, 260-61 (5th Cir. 2015). Petitioner does not meet this requirement.
Petitioner contends appellate counsel was ineffective for failing to raise the above claims concerning the prosecutor's alleged misconduct during closing argument (Claim 2) on direct appeal. As discussed previously, however, none of these allegations have merit. Further, appellate counsel is not required to raise every possible non-frivolous claim on appeal. See Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (“Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.”).
Because the above claims lack merit, appellate counsel was not deficient for failing to raise them. For the same reason, there is no likelihood petitioner would have obtained relief had they been raised on direct appeal, and therefore no prejudice was caused by appellate counsel's failure to raise the claims. Petitioner's allegation concerning appellate counsel was rejected by the state court during his state habeas proceedings, and petitioner has not shown this rejection on the merits to be contrary to, or an unreasonable application of, the Strickland standard. Richter, 562 U.S. at 101. Federal habeas relief is therefore denied.
V. Certificate of Appealability
The Court must now determine whether to issue a certificate of appealability (COA). See Rule 11(a) of the Rules Governing § 2254 Proceedings; Miller-Elv. Cockrell, 537 U.S. 322, 335-36 (2003) (citing 28 U.S.C. § 2253(c)(1)). A COA may issue only if a petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that the showing required under § 2253(c)(2) is straightforward when a district court has rejected a petitioner's constitutional claims on the merits: The petitioner must demonstrate “that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This requires a petitioner to show “that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.'” Miller-El, 537 U.S. at 336 (citation omitted).
The issue becomes somewhat more complicated when the district court denies relief on procedural grounds. Id. In that case, the petitioner seeking COA must show both “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack, 529 U.S. at 484). In other words, a COA should issue if the petitioner not only shows that the lower court's procedural ruling is debatable among jurists of reason, but also makes a substantial showing of the denial of a constitutional right.
A district court may deny a COA sua sponte without requiring further briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For the reasons set forth above, the Court concludes that jurists of reason would not debate the conclusion that petitioner was not entitled to federal habeas relief. As such, a COA will not issue.
VI. Conclusion and Order
After careful consideration, the Court concludes that petitioner's Claim 2 is procedurally barred from federal habeas review. In the alternative, the claim lacks merit under a de novo standard of review. Concerning the remainder of the allegations (Claims 1 and 3), petitioner has failed to establish that the state court's rejection of the allegations on the merits during his state habeas corpus proceedings was either (1) contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) based on an unreasonable determination of the facts in light of the evidence presented in the petitioner's state trial, appellate, and habeas corpus proceedings. As a result, petitioner's federal habeas corpus petition does not warrant relief.
Accordingly, IT IS HEREBY ORDERED that:
1. Federal habeas corpus relief is DENIED and petitioner Isidro Ramos, III's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED WITH PREJUDICE;
2. No Certificate of Appealability shall issue in this case; and
3. All remaining motions, if any, are DENIED, and this case is now CLOSED.
It is so ORDERED.