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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 08-70044                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
ROBERT MORENO RAMOS,                                                        June 30, 2016
                                                                           Lyle W. Cayce
              Petitioner - Appellant                                            Clerk

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 7:07-CV-59


Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Robert Moreno Ramos seeks a certificate of appealability (“COA”) to
challenge the district court’s denial of his second federal petition for a writ of
habeas corpus, filed pursuant to 28 U.S.C. § 2254. Ramos argues that the
district court erred in refusing to grant him leave to amend his habeas corpus
petition and in denying his claim related to the Vienna Convention on Consular



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Relations (“VCCR”). Because jurists of reason would not find the district
court’s decisions debatable or wrong, we deny a COA.
                                       I.
      In 1993, Ramos was convicted and sentenced to death in Texas state
court for the capital murder of his wife and two young children. We discussed
the underlying facts of his crime in an earlier opinion and need not repeat them
here. See Ramos v. Cockrell, 32 F. App’x 126, at *1-2 (5th Cir. Feb. 14, 2002)
(unpublished).   Ramos’s conviction and sentence were affirmed on direct
appeal and he was denied state habeas corpus relief. Id. at *2. Ramos filed
his first federal habeas corpus petition under 28 U.S.C. § 2254 in 1999. Ramos,
32 F. App’x 126, at *2. The district court granted summary judgment in favor
of the state, we denied a COA, and the Supreme Court denied certiorari. Id.
at *8; Ramos v. Cockrell, 537 U.S. 908 (2002).
      Approximately a year and a half after the Supreme Court denied
Ramos’s request for a writ of certiorari, the International Court of Justice
(“ICJ”) handed down its decision in Avena and Other Mexican Nationals
(Mexico v. United States), 2004 I.C.J. 12 (Mar. 31). Avena was a suit brought
by Mexico against the United States, alleging that the United States had
violated the VCCR in denying consular notification to 54 Mexican nationals,
including Ramos, on death row. Id. at 20, 24-25. Article 36 of the VCCR
guarantees that a consular officer of a signatory state shall have the right to
meet with and arrange legal representation for one of its citizens who is in the
custody of another signatory state and that the detaining state “shall inform
the person concerned without delay of his rights” under the relevant sub-
paragraph.    VIENNA CONVENTION ON CONSULAR RELATIONS & OPTIONAL
PROTOCOL ON DISPUTES, art. 36, para. (1)(b)&(c), 21 U.S.T. 77; see also
Cardenas v. Dretke, 405 F.3d 244, 251-52 (5th Cir. 2005) (describing Avena
decision). In Avena, the ICJ held that, as to 51 of the individuals, the United
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                                     No. 08-70044
States had violated the VCCR by failing “to notify the Mexican consular post
of the detention of the Mexican nationals [including Ramos]” and “the United
States also violated the obligation . . . to enable Mexican consular officers to
communicate with and have access to their nationals,” thereby violating its
obligation “to enable Mexican consular officers to arrange for legal
representation of their nationals.” Avena, 2004 I.C.J. at 54. The ICJ concluded
that the individuals affected, including Ramos, were entitled to “review and
reconsideration” of their sentences and convictions in light of the violations of
the VCCR. Id. at 72.
      Following the ICJ’s decision in Avena, President George W. Bush issued
a memorandum (the “Bush Memorandum”) on February 28, 2005, directing
state courts to comply with Avena by affording re-review of the convictions and
sentences of the affected Mexican nationals. See Medellín v. Texas, 552 U.S.
491, 498 (2008) (discussing Bush Memorandum). Less than a month after the
Bush Memorandum issued, Ramos filed his second state habeas corpus
petition, this time seeking relief under the VCCR. The Texas Court of Criminal
Appeals (“TCCA”) dismissed the petition as an invalid subsequent habeas
application. Ex parte Cardenas, No. WR-35938-02, 2007 WL 678628, at *1
(Tex. Crim. App. Mar. 7, 2007). 1 The TCCA relied on its decision in Ex parte
Medellín, 223 S.W.3d 315, 332-35 (Tex. Crim. App. 2006), aff’d sub nom.
Medellín v. Texas, 552 U.S. 491 (2008), in which the TCCA had held that
neither Avena nor the Bush Memorandum amounted to binding federal law
and therefore that neither preempted state procedural rules.                   Ex parte
Cardenas, 2007 WL 678628, at *1.



      1 Ramos’s second state habeas corpus application was consolidated with those of five
other petitioners who had also been named subjects in Avena. See Ex parte Cardenas, No.
WR-35938-02, 2007 WL 678628, at *1 (Tex. Crim. App. Mar. 7, 2007); Avena and Other
Mexican Nationals (Mexico v. United States), 2004 I.C.J. 12, 25 (Mar. 31).
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      Ramos next filed a second federal habeas petition in March 2007,
alleging that he had been denied his rights under the VCCR and had been
prejudiced thereby. [ROA 5-66.] Ramos’s petition indicated that he “raise[d]
a single claim . . . namely, that he ha[d] a federal right to review and
reconsideration of his conviction and sentence pursuant to” the Bush
Memorandum and Avena. [ROA 8.] The district court stayed the case pending
the Supreme Court’s decision in Medellín v. Texas, which the Supreme Court
ultimately issued in March 2008. See Medellín v. Texas, 552 U.S. 491 (2008).
There, the high court confirmed that neither the Bush Memorandum nor
Avena required state courts to reconsider and review the affected Mexican
nationals’ claims where state procedural rules otherwise prevented such
review. Id. at 522-23, 532. The district court thereafter lifted the stay on
Ramos’s case and dismissed his petition as successive. [ROA 551-55, 637.]
Ramos appealed. [ROA 638.] While Ramos’s appeal was still pending, a panel
of this court handed down its decision in Leal Garcia v. Quarterman, 573 F.3d
214, 224 (5th Cir. 2009), holding that a Mexican national’s second-in-time
habeas petition relying on Avena and the Bush Memorandum was not
successive for purposes of 28 U.S.C. § 2244. In light of Leal Garcia, we granted
Ramos’s unopposed motion to stay proceedings in this court and permit further
litigation in the district court on his Avena/Bush Memorandum claim. The
district court next granted Ramos’s unopposed motion to reopen judgment
under Federal Rule of Civil Procedure 60(b). [ROA 680-83.] Ramos was now
free to seek merits review of his non-successive Avena/Bush Memorandum
claim in district court.
      In June 2010, Ramos filed an amended second § 2254 petition in federal
district court, alleging that his VCCR rights had been violated, that he was
prejudiced by that violation, and that he was entitled to review on the merits
of his claims. [ROA 688-754.] In May 2013—after briefing was complete but
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before the district court had issued a decision—Ramos moved for leave to
amend his habeas petition to add a claim of ineffective assistance of trial
counsel (“IATC”).     [ROA 2138-41.]         Adopting recommendations of the
magistrate judge, the district court denied Ramos’s motion to amend and,
separately, denied habeas relief on Ramos’s Avena/Bush Memorandum claim.
The district court denied Ramos’s motion to amend as futile because it would
have added new successive claims over which the district court would have
lacked jurisdiction. [ROA 3311-29, 3495.] The district court denied Ramos’s
Avena/Bush Memorandum claim on the merits and denied him a COA. [ROA
3335-68, 3494.] Ramos timely requested a COA from this court.
                                       II.
      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs our consideration of Ramos’s request for a COA. Under AEDPA,
Ramos must obtain a COA before he can appeal the district court’s denial of
habeas relief. 28 U.S.C. § 2253(c)(1); see Miller-El v. Cockrell, 537 U.S. 322,
335-36 (2003). Ramos is entitled to a COA only if he makes “a substantial
showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2);
Miller-El, 537 U.S. at 327. If a petitioner seeks a COA to challenge the district
court’s denial of the petitioner’s constitutional claims on the merits, “[t]he
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong” or “that the
issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
omitted).   When the district court denies a habeas corpus petition on
procedural grounds without considering the underlying constitutional claim,
we will grant a COA if the petitioner “shows, at least, 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
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whether the district court was correct in its procedural ruling.” Id. “Each
component . . . is part of a threshold inquiry, and a court may find that it can
dispose of the application in a fair and prompt manner if it proceeds first to
resolve the issue whose answer is more apparent from the record and
arguments.” Id. at 485. The petitioner need not “prove, before the issuance of
a COA, that some jurists would grant the petition for habeas corpus.” Miller-
El, 537 U.S. at 338. “Indeed, a claim can be debatable even though every jurist
of reason might agree, after the COA has been granted and the case has
received full consideration, that petitioner will not prevail.” Id. What is more,
“any doubt as to whether a COA should issue in a death-penalty case must be
resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th
Cir. 2005).
                                       A.
      Ramos first contends that the district court erred in denying his motion
to amend his second § 2254 petition. The district court denied the motion as
futile because the claim Ramos sought to add—an IATC claim—would have
been successive. Ramos argues that the bar on successive habeas petitions
established by 28 U.S.C. § 2244 applies to petitions, not claims. In his view,
having already cleared the § 2244 hurdle with his petition raising an
Avena/Bush Memorandum claim, he was thereafter free to add additional
claims without any need to clear § 2244 anew. Ramos’s interpretation of the
limits on successive petitions directly contradicts the purpose of § 2244, and
our case law cannot support it. Jurists of reason would not debate the district
court’s denial of Ramos’s motion to amend his § 2254 petition.
      Congress has established that a habeas petition “may be amended . . . as
provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242.
The applicable rule is Federal Rule of Civil Procedure 15(a)(2), which states
that the district court “should freely give leave [to amend] when justice so
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                                 No. 08-70044
requires.” A district court has discretion to grant or deny a motion to amend,
and may consider factors such as “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failures to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party, and futility of the
amendment.” Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751
F.3d 368, 378 (5th Cir. 2014) (quotation marks and alterations omitted). The
district court denied Ramos’s motion to amend solely on the basis of futility. A
proposed amendment to a habeas petition is futile if, for example, review of the
new claim would be barred by the procedural requirements of AEDPA. See
Flores v. Stephens, 794 F.3d 494, 505 (5th Cir. 2015) (denying COA where
reasonable jurists could not debate futility of petitioner’s request to amend
because proposed new claims were procedurally defaulted). The district court
concluded it would be futile to permit Ramos to amend his petition with an
additional IATC claim because such a claim would be successive and therefore
outside the district court’s jurisdiction. See 28 U.S.C. § 2244(b).
      AEDPA demands that a petitioner obtain authorization from a federal
court of appeals before he or she can file a “second or successive” habeas
petition in federal district court. See § 2244(b)(3); see also Leal Garcia, 573
F.3d at 219. Absent authorization, a district court does not have jurisdiction
to consider a successive § 2254 petition.      Leal Garcia, 573 F.3d at 219.
Although AEDPA does not define the phrase “second or successive,” we have
held that “a later petition is successive when it: 1) raises a claim challenging
the petitioner’s conviction or sentence that was or could have been raised in an
earlier petition; or 2) otherwise constitutes an abuse of the writ.” In re Cain,
137 F.3d 234, 235 (5th Cir. 1998). This definition “must be considered in the
context of AEDPA, the statute that it interprets,” which is aimed at minimizing
repeated attacks on the validity of a petitioner’s conviction or sentence. Leal
Garcia, 573 F.3d at 221-22.
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      There is no question that Ramos’s § 2254 petition filed in June 2010,
raising only his Avena/Bush Memorandum claim, challenged a state action
that had not yet occurred at the time of the original petition and was therefore
non-successive. Leal Garcia v. Quarterman, 573 F.3d at 224. It is similarly
beyond debate that if Ramos were to bring a federal habeas petition raising
only his IATC claim, it would be successive under § 2244. Ramos alleges that
his trial attorney was ineffective both during the guilt-innocence and penalty
phases of trial, due to his attorney’s insufficient investigation and incomplete
presentation of evidence. This alleged defect existed at the time Ramos filed
his original § 2254 petition and an attempt to raise it in a new petition would
be successive. See United States v. Orozco-Ramirez, 211 F.3d 862, 869 (5th Cir.
2000). Ramos does not argue otherwise.
      Instead, Ramos maintains that once a federal habeas petition is deemed
non-successive, any claim may be subsequently added by amendment, whether
or not such a claim was or could have been raised in an earlier petition. Ramos
essentially proposes that a habeas petitioner can create an end run around
AEDPA’s restriction on successive petitions by filing a § 2254 application
containing a single claim that could not have been raised previously, and later
amending the application to add any number of previously-available claims.
By Ramos’s accounting, the only obstacle to such a tactic is the modest
limitation on amendments found in Federal Rule of Civil Procedure 15.
Ramos’s reimagining of the strictures of AEDPA is wholly unpersuasive. It
runs counter to the purpose of AEDPA itself and is completely incompatible
with our established precedent.
      As discussed supra, we have consistently held that a “petition is
successive when it . . . raises a claim challenging the petitioner’s conviction or
sentence that was or could have been raised in an earlier petition.” In re Cain,
137 F.3d at 235 (emphasis added). A petition is thus successive if it contains
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a claim that was available when an earlier petition was filed, viewed within
the framework of AEDPA. See id. The parties do not contest that Ramos’s
IATC claim was available when he filed his first § 2254 application. Where a
petitioner seeks “to add a new ground for relief” that was or could have been
raised in an earlier federal habeas application, “we must treat it as a second or
successive habeas petition.” Williams v. Thaler, 602 F.3d 291, 305 (5th Cir.
2010) (citing Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)) (denying COA where
petitioner moved to amend the district court’s judgment based on a new claim
of actual innocence). It follows that if the district court had allowed Ramos to
amend his second-in-time petition to add his IATC claim, his petition would
have become successive to the extent it included the IATC claim, and the
district court would not have had jurisdiction to hear it. 2 See id.; see also Leal
Garcia, 573 F.3d at 219.
       Ramos’s understanding is also entirely incompatible with the purpose of
AEDPA.      Congress’s intent in drafting AEDPA must be considered when
interpreting it. See Williams v. Taylor, 529 U.S. 420, 436-37 (2000). AEDPA’s
“design is to further the principles of comity, finality, and federalism,” to
“reduce piecemeal litigation,” and to “streamline federal habeas proceedings.”
Panetti v. Quarterman, 551 U.S. 930, 945-46 (2007) (quotation marks and
alterations omitted). Ramos’s reading of AEDPA would undermine AEDPA’s
basic purpose; it would allow district courts to countenance claims through



       2  Ramos attempts to bolster his position by citing to the Supreme Court’s decision in
Magwood v. Patterson, 561 U.S. 320 (2010), but that case is not on point. There, the Court
addressed whether a habeas petition was successive because it challenged a new judgment
with a claim that could have been brought against an earlier judgment, and held that such
an application was not successive. Id. at 335-36 & n.11 (“The question in this case is whether
a first application challenging a new sentence in an intervening judgment is second or
successive. It is not whether an application challenging the same state-court judgment must
always be second or successive.”). Here, Ramos’s IATC claim challenges the same judgment
as his first § 2254 application.
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amendment to a habeas petition despite such claims being outside the courts’
jurisdiction had the claims been included when the petition was first filed.
Jurists of reason would not find it debatable whether the district court was
correct in denying Ramos’s motion to amend his petition to add an IATC claim. 3
                                            B.
       Ramos next argues that the district court’s denial of his Avena/Bush
Memorandum claim is debatable. Ramos’s claim is that the Avena decision,
together with the Bush Memorandum, gave him a federal right to review and
reconsideration of his conviction and sentence. The Supreme Court has held,
however, that “neither Avena nor the [Bush] Memorandum constitutes directly
enforceable federal law that pre-empts state limitations on the filing of
successive habeas petitions.” Medellín, 552 U.S. at 498-99. We have applied
Medellín to deny habeas applications functionally indistinguishable from
Ramos’s. See Leal Garcia, 573 F.3d at 224.
       In Leal Garcia, the petitioner, like Ramos, was one of the 51 named
individuals in the Avena decision and subsequently submitted a second-in-time
§ 2254 petition raising an Avena/Bush Memorandum claim. Id. at 218. We
held that the petitioner’s habeas application was not successive, but that “[t]he
Supreme Court’s decision in Medellín v. Texas, has deprived the Avena decision
and the Bush [Memorandum] of whatever legal force [the petitioner] might
claim they ever had.” Id. at 224. The petitioner could not “argue that Texas
was required to review his case because Medellín v. Texas foreclosed this
contention by holding that neither the ICJ nor President Bush had authority
to order the State to conduct such a review.” Id. The same is true here—



       3Because we conclude reasonable jurists would not debate the district court’s holding
that Ramos’s proposed amendment would have rendered his petition successive, we do not
consider the state’s alternative arguments that Ramos’s IATC claim would have been time
barred and procedurally defaulted.
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Medellín deprives Ramos’s Avena/Bush Memorandum claim of any arguable
merit. If there were any lingering doubt on this point, our recent decision in
Cardenas v. Stephens, 820 F.3d 197, at *1 (5th Cir. 2016), has put it to rest.
There, we held that an Avena/Bush Memorandum claim necessarily fails under
28 U.S.C. § 2254(d)(1), because there is no Supreme Court precedent for the
proposition that Avena, the VCCR, or the Bush Memorandum “give rise to
judicially enforceable individual rights cognizable on federal habeas review
under AEDPA.” Id. at *4. The absence of such Supreme Court precedent is
fatal to Ramos’s § 2254 petition. See id.
      The decisions in Medellín, Leal Garcia, and Cardenas are all binding on
this court and each decision creates an insurmountable barrier to Ramos’s
Avena/Bush Memorandum claim. The district court’s denial of the claim would
not engender debate among reasonable jurists, nor is the issue adequate to
deserve encouragement to proceed further.
                                      III.
      For the reasons described above, Ramos’s application for a COA is
DENIED.




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