     Case: 10-70021     Document: 00511574840         Page: 1     Date Filed: 08/17/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                          August 17, 2011

                                       No. 10-70021                        Lyle W. Cayce
                                                                                Clerk

BRITT ALLEN RIPKOWSKI

                                                  Petitioner - Appellant
v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division

                                                  Respondent - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-4097


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Petitioner Britt Ripkowski appeals the dismissal of his petition for habeas
corpus relief in the district court. We affirm.
                                             I.
The Crime
        The Texas Court of Criminal Appeals set forth the evidence supporting
Ripkowski’s capital murder conviction on direct appeal as follows:


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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          Monica Allen and [Ripkowski] dated for awhile but had a
   stormy relationship. Allen had a two-year-old daughter, Dominique
   Frome, from a prior relationship. [Ripkowski] had lived with Allen
   at various times in Salt Lake City, Utah and in Houston, Texas. At
   the time of the events giving rise to this prosecution, they were
   living apart, with [Ripkowski] in Houston and Allen in Salt Lake
   City. On December 22, 1997, a young woman's body was found by
   the side of a roadway near Monticello, Utah. The body was not
   identified at that time. On December 30th, a missing persons report
   was filed on Allen and her daughter. The FBI and the Salt Lake
   City Police Department (SLCPD) began an investigation of the
   disappearances. Detective Kelly Kent of the SLCPD was one of the
   officers assigned to investigate. On January 15, 1998, the body
   found in Utah was identified as Allen's.

         The following day, Special Agent Gary Steger, with the
   Houston Division of the FBI, contacted [Ripkowski] at his
   apartment in Houston. Steger and another FBI agent introduced
   themselves and told [Ripkowski] that they were investigating the
   disappearance of Allen and her child. They talked with [Ripkowski],
   received his permission to search the apartment, and conducted a
   search that revealed nothing of importance to the investigation.
   Special Agent Steger did see a crack pipe in the apartment. That
   same day, [Ripkowski] called Detective Kent, with whom he had
   past dealings. [Ripkowski] told Kent that he, Allen, and Dominique
   had left Salt Lake City together but parted ways at St. George, Utah
   on December 21st. [Ripkowski] called Kent again on January 19th.
   This time he told her that he had taken Dominique to Houston and
   that a friend had taken her to Mexico.

         On January 20th, [Ripkowski] called Kent and told her that
   he had been in contact with the FBI and he believed that they were
   following him. That same day, the FBI searched [Ripkowski]'s
   apartment pursuant to a federal search warrant. [Ripkowski] told
   Special Agent Steger the revised story of taking Dominique to
   Houston and a friend taking her to Mexico. [Ripkowski] said that he
   had used Allen's van to drive from Salt Lake City to Houston, and
   he told FBI agents where the van was located. The van was seized
   by the FBI and Special Agent Steger returned [Ripkowski] to his
   apartment.



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         On January 22nd, [Ripkowski] was arrested by federal agents.
   Special Agent Eric Johnson read [Ripkowski] his Miranda warnings
   and transported him to the Houston FBI office. Johnson testified
   that he did not threaten [Ripkowski] or make any promises.
   Johnson denied that [Ripkowski] was disoriented during this time
   period. During a pat-down search of [Ripkowski], Johnson
   discovered some phone cords and a necktie. During transit,
   [Ripkowski] told officers that he should have made them kill him.

          [Ripkowski] was turned over to Special Agent Steger at the
   Houston FBI office. Steger noticed that [Ripkowski] had some
   scratches on his face and an injury to his wrist. The wrist injury
   consisted of a one-sixth of an inch deep slash across the wrist.
   [Ripkowski] told Steger that he had tried to slit his wrists the night
   before. Steger took [Ripkowski] to a nurse for medical treatment.
   Afterwards, [Ripkowski] was placed in an interrogation room for
   questioning. Also present in the interrogation room were Special
   Agent Steger, Detective Kent, and Charles Oliver, a homicide
   investigator for SLCPD. Steger read the Miranda warnings. Oliver
   testified that Steger read each warning individually, and after each
   one, Steger asked [Ripkowski] if he understood his rights.
   [Ripkowski] appeared to understand his rights and appeared to
   knowingly, intelligently, and voluntarily waive the rights. Oliver
   further testified that [Ripkowski] did not appear to be under the
   influence of drugs or alcohol. When asked questions, [Ripkowski]
   responded coherently and appropriately. After warnings were read
   and rights waived, Detective Kent interviewed [Ripkowski].

          Kent also testified that [Ripkowski] appeared to understand
   the warnings. Kent observed that [Ripkowski] read the waiver of
   rights form aloud and that [Ripkowski] appeared to voluntarily,
   knowingly, and intelligently waive his rights. No promises, threats,
   or abuse of any kind occurred before or during the interrogation.
   According to Kent, [Ripkowski] did not appear to be under the
   influence of drugs or alcohol, he appeared to understand what was
   going on, and when asked questions, he responded appropriately.
   This first interview by Kent was not electronically recorded. During
   the interview [Ripkowski] admitted to killing both Allen and
   Dominique. [Ripkowski] related that, on December 24th, he killed
   Dominique, put her body in a suitcase, and buried the suitcase in an



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     undeveloped area near the Sheldon Reservoir in northeast Harris
     County.

           [Ripkowski] agreed to help locate Dominique's body. He went
     with law enforcement agents to the area he described and they
     attempted to find the victim's body. But the terrain was swampy
     and covered with underbrush, and [Ripkowski] exhibited confusion
     about the body's location. Several law enforcement agents testified
     that they believed [Ripkowski] was honestly trying to help locate the
     body but was unsuccessful. [Ripkowski] informed officers that the
     body could be further up the same road about a half mile.

            After this failed attempt to find the child's body, Steger took
     [Ripkowski] to the homicide division of the Houston Police
     Department. [Ripkowski] was placed in an interview room with
     Detective Kent and Houston Police Officer Robert King. King
     testified that he read [Ripkowski] the required warnings and
     [Ripkowski] nodded his head after each individual warning was
     read. Both King and Kent testified that [Ripkowski] appeared to
     understand his rights and appeared to waive those rights
     voluntarily. Kent then conducted a videotaped interrogation of
     [Ripkowski]. Kent and King both testified that [Ripkowski] did not
     appear to be under the influence of drugs or alcohol during the
     interrogation and that [Ripkowski] responded appropriately to
     questions. During the interrogation [Ripkowski] again described
     how he killed Allen and Dominique and again described how he
     disposed of Dominique's body. [Ripkowski] also stated that he had
     used cocaine extensively up to and just prior to arrest, that he had
     recently attempted suicide by trying to slit his wrists, and that he
     had tried to kill himself by taking an overdose of pills shortly before
     his arrest. After the taping ended, [Ripkowski] was shown a map,
     and he pointed out the area on the map where Dominique's body
     was located.

           On January 23rd, armed with this information, law
     enforcement agents found Dominique's body.

Ripkowski v. State, 61 S.W.3d 378, 382-383 (Tex. Crim. App. 2001).

Procedural History



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      Ripkowski was convicted of capital murder of Dominque, a child under the
age of six. After a separate punishment hearing, he was sentenced to death.
The Texas Court of Criminal Appeals affirmed on direct appeal. Id. The
Supreme Court denied cert. Ripkowski v. Texas, 539 U.S. 916 (2003).
      Ripkowski filed a state application for writ of habeas corpus while his
direct appeal was pending. The trial court’s findings of fact and conclusions of
law were adopted by the Texas Court of Criminal Appeals which denied relief.
Ex parte Ripkowski, No. WR-65,238-01, 2006 Tex. Crim. App. Unpub. LEXIS 225
(Tex. Crim. App. Nov. 22, 2006).
      Ripkowski then filed this federal habeas petition raising multiple claims.
The district court granted the director’s motion for summary judgment denying
Ripkowski’s claims and denied his request for a certificate of appealability. After
Ripkowski filed a motion to alter or amend the judgment, the district court
granted COA on the following issue: Whether Ripkowski was entitled to a stay
of these federal habeas proceedings because of incompetence.
      In this appeal, Ripkowski continues to argue for a stay of these
proceedings on the basis of his incompetence and he seeks a COA on five of the
grounds urged in the district court. For the reasons assigned below, we affirm
the district court’s judgment denying the motion to stay and affirm the district
court’s denial of COA on the remaining issues.
                                       II.
      On federal habeas appeal, the district court’s findings of fact are reviewed
for clear error and the district court’s conclusions of law are reviewed de novo.
Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001). Under 28 U.S.C. §
2254(d), a federal court cannot grant habeas corpus relief with respect to 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

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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. 28 U.S.C. § 2254(d).
The statute permits a federal habeas court to assess only the state court’s
decision, not the propriety of its analysis and reasoning. Pondexter v. Dretke,
346 F.3d 142, 148 (5th Cir. 2003). Under AEDPA, “a determination of a factual
issues made by a State court shall be presumed to be correct.” 28 U.S.C. §
2254(e)(1).   A federal habeas petitioner “has the burden of rebutting this
presumption with clear and convincing evidence.” Hughes v. Dretke, 412 F.3d
582, 589 (5th Cir. 2005) (citing 28 U.S.C. § 2254(e)(1)).
      Ripkowski filed his federal habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). Accordingly, the
petition is subject to the requirements imposed by AEDPA. See Lindh v.
Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, Ripkowski must obtain a
COA before he can appeal the district court’s denial of habeas relief. See 28
U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). The
district court granted COA on one issue - whether Ripkowski is entitled to stay
these habeas proceedings because he is incompetent.
      The district court denied Ripkowski’s petition for COA on the remaining
issues raised in this appeal. Accordingly, his only alternative is to petition this
court directly for a COA. See 28 U.S.C. § 2253(c). “To determine whether a COA
should be granted requires an overview of the claims in the habeas petition and
a general assessment of their merits.” Summers v. Dretke, 431 F.3d 861, 870
(5th Cir. 2005); Miller-El, 537 U.S. at 336. This court looks to the district court’s
application of AEDPA to petitioner’s constitutional claims and asks whether that
resolution was debatable among jurists of reason. Miller-El, 537 U.S. at 336.
“This threshold inquiry does not require full consideration of the factual or legal
basis adduced in support of the claims. In fact, the statute forbids it.” Id.

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      Obtaining a COA requires a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); e.g. Miller-El, 537 U.S. at 336;
Slack v. McDaniel, 529 U.S. 473, 483 (2000).        An applicant usually must
demonstrate that “jurists of reason could disagree with the district court’s
resolution of his claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Moreno v. Dretke, 450
F.3d 158, 163 (5th Cir. 2006); Miller-El, 537 U.S. at 327. Where the district
court dismisses the application based on procedural grounds without reaching
the prisoner’s underlying constitutional claim(s), the showing is expanded. See
Hall v. Cain, 216 F.3d 518, 521 (5th Cir. 2000). In that situation, the applicant
must show that jurists of reason would find it debatable whether: (1) the petition
states a valid claim of the denial of a constitutional right; and (2) the district
court was correct in its procedural ruling. Id.; see also Slack, 529 U.S. at 484.
“The question is debatability of the underlying constitutional claim, not the
resolution of that debate.” Miller-El, 537 U.S. at 342. Moreover, “[b]ecause the
present case involved the death penalty, any doubts as to whether a COA should
issue must be resolved in [petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d
243, 248 (5th Cir. 2000).
                                      III.
      Ripkowski argues that he is incompetent to assist his counsel in this
habeas proceeding and that this proceeding must be stayed until he regains the
competence to proceed. As we stated in Mines v. Dretke,
      Neither the Supreme Court nor this court have [sic] determined
      whether such a right exists, whether the right is constitutional or
      statutory, what standard of review applies, or in what procedural
      manner such a right would be properly asserted.




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118 Fed. Appx. 806, 811 (5th Cir. 2004). We need not decide in this case whether
such a right exists or any related issues, because Ripkowski, like Mines, has
failed to present evidence showing that he is presently incompetent.
       The district court found that “Ripkowski presents no evidence that he
presently is incompetent.” We agree. Ripkowski presented two affidavits and
his attorney’s allegations of his incompetence in his petition to support his claim
of incompetence. The first affidavit is from Dr. Rahn K. Bailey, M.D.1 Dr.
Bailey’s affidavit states the following conclusions:
       1.     Mr. Ripkowski is diagnosed as being Bipolar I with psychosis;
       2.     Mr. Ripkowski appeared to have been suicidal during trial;
       3.     Mr. Ripkowski was incompetent at the time he gave his statement
              to the police and when waiving his trial rights;
       4.     Mr. Ripkowski is incompetent and cannot assist his attorney now;
       5.     Mr. Ripkowski is incompetent to be executed.
The affidavit states that it is based on a review of the trial record and
Ripkowski’s medical records and an examination of Ripkowski for approximately
2.5 hours. However, it does not state when the examination occurred or describe
the standards on which he judged incompetence or how Ripkowski failed to meet
that standard.
       The timing of Dr. Bailey’s analysis is very important in this case. We start
with the findings of the state habeas court that Ripkowski was competent at
trial based on the affidavits of his trial attorneys that Ripkowski was able to
assist in the preparation of his defense and understand the proceedings. Also,
the state habeas court ordered that Ripkowski be examined by two court


       1
        The state argues that this affidavit is not competent summary judgment evidence due
to various technical defects in the affidavit because it is not sworn before a notary or other
authority. 28 U.S.C. § 1746; Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1305-06 (5th Cir.
1988); DIRECTV, Inc. v. Budden, 420 F.3d 571 (5th Cir. 2005). We need not decide this issue
because the affidavits, even if credited, do not support a claim of present incompetence.

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appointed experts to determine his then present mental capacity for purposes
of his claim that he was incompetent to be executed. Based on the reports of
these experts the state habeas court found that Ripkowski failed to prove then
present incompetence. Thus, any finding that Ripkowski is incompetent now
must be based on information not presented to the state habeas court and based
on a change in Ripkowski’s condition since that time. Dr. Bailey’s affidavit fails
in this respect because it does not indicate when he examined Ripkowski. In
addition, the affidavit itself is undated. This in conjunction with the failure to
indicate the standard of incompetence considered and applied to Dr. Bailey’s
examination of Ripkowski renders the affidavit general and conclusory and
insufficient to support a finding of incompetence or even trigger a hearing on the
issue.
         The second affidavit is from Jennifer Danielle Turner, a law student
working as a clerk with Ripkowski’s habeas counsel. The affidavit states that
Ripkowski is “impossible to interview” and they “have been unable to gather any
useful information from him to help in investigating his case.” The affidavit also
comments on his hygiene.         Aside from the problems of resting a medical
diagnosis on the affidavit of a layperson, the affidavit does not offer any analysis
of Ripkowski’s ability to communicate, only that he has not done so. Ripkowski
also points to his numerous filings in the district court that are
incomprehensible. These scribblings do not establish legal incompetence.
         In summary, the right on which Ripkowski rests his claim is questionable,
and the evidence of his alleged present incompetence is insufficient to raise a
serious factual question about Ripkowski’s present mental state. Relief is not
warranted on this issue.
                                        IV.
         Ripkowski also requests a certificate of appealability on the following
issues, on which the district court denied COA.

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                                         A.
         Ripkowski first argues that he is incompetent to be executed.          He
recognizes that this issue is not timely at present but alerts the court that it is
likely to be a continuing concern. COA is not appropriate on this claim.
                                         B.
         Ripkowski argues that his serious mental impairments render his death
penalty sentence unconstitutional under the Fifth, Sixth, Eighth and Fourteenth
Amendments due to the similarity of mental illness in terms of mens rea and
ultimate culpability to mental retardation. Ripkowski makes this argument as
an extension of Atkins v. Virginia, 536 U.S. 304 (2002) (barring execution of
mentally retarded offenders), and Roper v. Simmons, 543 U.S. 551 (2005)
(barring execution of juvenile offenders).
         The district court properly dismissed this claim for several reasons. The
Supreme Court has never held that mental illness removes a defendant from the
class of persons who are constitutionally eligible for a death sentence. A federal
court cannot create a new constitutional rule of criminal procedure on habeas
review. Teague v. Lane, 489 U.S. 288 (1989). Further, if this court considered
the issue on the merits, the Fifth Circuit has recognized the distinction between
the mentally ill and the mentally retarded and has held that Atkins only protects
the latter. In re Neville, 440 F.3d 220, 221 (5th Cir. 2006). COA is not
warranted on this claim.
                                         C.
         Ripkowski makes several arguments arising from the fact that Texas
enacted a life-without-parole option for capital sentencing juries after his
conviction and after he filed his initial state habeas petition. The district court
found this claim to be unexhausted because it was not presented to any state
court.

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      On the merits, the change in the law on sentencing is no basis for relief on
habeas. Colvin v. Estelle, 506 F.2d 747, 748 (5th Cir. 1975). To the extent
Ripkowski argues that his sentence imposed without the life-without-parole
option violates Beck v. Alabama, 447 U.S. 625 (1980), that argument is without
merit. Beck held that due process requires that the jury be instructed on a lesser
included offense if the evidence supports it. Ripkowski’s jury had the option to
impose a lesser sentence of life imprisonment with parole eligibility after 40
years, which was the lesser included offense and punishment under Texas law
at the time of his trial. The lack of a life-without-parole option at the time of his
trial does not implicate Beck. To the extent Ripkowski is arguing that current
constitutional requirements establish that a death penalty imposed without the
option of life-without-parole is unconstitutional, that argument would create a
new rule of constitutional law and is barred by Teague. We decline to grant COA
on this claim.
                                        D.
      Ripkowski claims that his sentence was given without providing the jury
a meaningful way to express their view on his mitigating evidence and was
therefore unconstitutional. At the commencement of the punishment phase of
Ripkowski’s trial, Ripkowski’s counsel made a motion to exclude victim impact
evidence. They argued that the availability of such evidence placed them in the
untenable position of choosing between presenting mitigating evidence and
opening the door for victim impact evidence, or not presenting mitigating
evidence at all. The trial court denied the motion. As a result, Ripkowski
waived the mitigation special issue in an effort to preclude victim impact
testimony, leaving only the special issue on the question whether Ripkowski
presented a future danger to society. Ripkowski argues now that the absence of
the mitigation question at the punishment phase left the jury with no means of

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expressing a reasoned moral response to his mitigation evidence and no way to
decide if he should be within the narrow class of capital convicted persons who
deserve to be executed rather than given a life sentence.
      The district court found that the record indicates that Ripkowski
knowingly and voluntarily, and with the advice of counsel, waived his right to
present the jury with the special mitigation question. The district court also
found that the Texas scheme does narrow the class of death eligible defendants
by the narrow definition of capital murder - in this case, the murder of a child
under the age of six - and the requirement of an aggravating factor - future
dangerousness, citing Jurek v. Texas, 428 U.S. 262, 268-72 (1976). Jurek
affirmed the Texas death penalty scheme, which at the time did not have the
mitigation special question. Ripkowski is arguing that without the mitigation
question, the jury had no means to give a reasoned response to his mitigation
evidence. See Penry v. Johnson, 532 U.S. 782 (2001). In effect, he wants this
court to protect him from the effect of his own trial decision to waive the
mitigation issue, but raises no issue that the waiver was unknowing or
involuntary. This argument has no merit.
                                       E.
      Finally, Ripkowski argues that his trial counsel was ineffective for
allowing him to waive the mitigation issue in this case. The district court found
that this claim was exhausted but credited the decision as trial counsel’s
strategy to waive mitigation to avoid having the prosecution present victim
impact evidence. The state court record includes the affidavit of the trial
attorneys regarding this decision. After seeing the outcome in the guilt phase
and the impact on the jury of the state’s evidence and argument, counsel debated
the issue, discussed it with Ripkowski and decided that it was worth foregoing
mitigation testimony to prevent the state from presenting victim impact
testimony. As early as voir dire they had focused on future dangerousness as the

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best means to help their client avoid the death penalty. Ripkowski participated
in the discussions with counsel and in the decision and stated in open court his
understanding and waiver after being admonished by the trial court of the
consequences.
      Ripkowski argues that the admonishments to him did not make it clear
that “his mitigating evidence would be deprived of a vehicle for use by the jury
and, moreover, could only be given aggravating weight by the jury in looking at
whether his mental illness or drug problem for example would make him more
or less likely to be a future danger.” The record refutes this argument. Before
allowing Ripkowski to waive the mitigation issue, the trial court told Ripkowski
“You understand now that if the jury answers the first Special Issue in the
affirmative, by law I will then assess your punishment at death and the jury’s
not going to have an issue as to mitigation or any reason why it should lower the
punishment simply by answering that special issue.” Ripkowski responded that
he understood and that was the way he wanted to do it.
      In order to establish a claim of ineffective assistance, “a defendant must
demonstrate that ‘counsel's representation fell below an objective standard of
reasonableness,' with reasonableness being judged under professional norms
prevailing at the time counsel rendered assistance." Strickland v. Washington,
466 U.S. 668, 688 (1984). If counsel was ineffective, "the defendant must show
that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome."
Id. at 694.   “An attorney's strategic choices, usually based on information
supplied by the defendant and gathered from a thorough investigation of the
relevant law and facts, ‘are virtually unchallengeable.’” Bryant v. Scott, 28 F.3d
1411, 1415 (5th Cir. 1994), quoting Strickland, 466 U.S. at 691.
      COA is not warranted on this issue.

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                                      V.
      Ripkowski fails to establish the denial of a clearly established
constitutional right to justify reversal of the district court’s order granting
summary judgment to the state and dismissing his claims. For the foregoing
reasons the judgment of the district court is affirmed. AFFIRMED.




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