     Case: 17-70014      Document: 00515090913         Page: 1    Date Filed: 08/26/2019




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


                                      No. 17-70014
                                                                                 FILED
                                                                           August 26, 2019
                                                                            Lyle W. Cayce
RAMIRO RUBI IBARRA,                                                              Clerk

              Petitioner - Appellant

v.

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

              Respondent - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:02-CV-52


Before JONES, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Ramiro Rubi Ibarra was convicted of capital murder and sentenced to
death. This court previously granted a certificate of appealability (“COA”)
under 28 U.S.C. § 2254 from the district court’s denial of relief on his
ineffective assistance of counsel claim and denied his petition for a COA on his
Atkins claim. Following briefing on the former claim, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                   No. 17-70014
                              I.      Background
     The facts about the crime need not be recited again.              This court
summarized the procedural history as follows:
           Petitioner’s sentence and conviction were affirmed on direct
     appeal.     See Ibarra v. State of Texas, 11 S.W.3d 189
     (Tex.Crim.App.1999), reh’g denied (Dec. 8, 1999), cert. denied,
     Rubi Ibarra v. Texas, 531 U.S. 828, 121 S. Ct. 79, 148 L.Ed.2d 41
     (2000). His first state habeas corpus petition was denied. Ex parte
     Ibarra, No. WR–48832–01 (Tex.Crim.App. Apr. 4, 2001).
     Petitioner then submitted his federal habeas petition, which was
     stayed while he exhausted additional state court claims pursuant
     to Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L.Ed.2d
     335 (2002), which banned the execution of the mentally retarded.
     His petition was stayed further while he pursued state court
     claims following President Bush’s announcement that the United
     States would have state courts give effect to an International Court
     of Justice opinion declaring that Mexican nationals were entitled
     to review and reconsideration of their convictions due to states’
     failure to comply with the Vienna Convention on Consular
     Relations (“VCCR”). See The Case Concerning Avena and Other
     Mexican Nationals (Mex. v. U.S.) (“Avena”), 2004 I.C.J. 12
     (Judgment of Mar. 31). See also Medellin v. Texas, 552 U.S. 491,
     128 S. Ct. 1346, 170 L.Ed.2d 190 (2008).
           The Texas Court of Criminal Appeals remanded Petitioner’s
     Atkins claim to the trial court for an evidentiary hearing. The trial
     court determined that Petitioner was not mentally retarded, and
     this holding was adopted on appeal by the Court of Criminal
     Appeals (“CCA”). In the same order, the CCA dismissed his
     separate petition for relief under Avena as a subsequent writ under
     Article 11.071, Section 5 of the Texas Code of Criminal Procedure.
     Ex parte Ibarra, Nos. WR–48832–02 and WR–48832–03, 2007 WL
     2790587, (Tex.Crim.App. Sept. 26, 2007). Petitioner’s application
     for certiorari on his Avena claim was denied. Ibarra v. Texas,
     553 U.S. 1055, 128 S. Ct. 2475, 171 L.Ed.2d 770 (2008). A fourth
     state habeas petition, raising a claim under Wiggins v. Smith,
     539 U.S. 510, 123 S. Ct. 2527, 156 L.Ed.2d 471 (2003), was also
     dismissed by the CCA as a subsequent writ. Ex parte Ibarra,
     No. WR–48832–04, 2008 WL 4417283 (Tex.Crim.App. Oct. 1,
     2008).

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                                 No. 17-70014
Ibarra v. Thaler, 691 F.3d 677, 680 (5th Cir. 2012) vacated in part sub nom.
Ibarra v. Stephens, 723 F.3d 599 (5th Cir. 2013).
      After Ibarra had finally exhausted his claims in the Texas courts, he
argued eleven grounds for relief in the federal district court, all of which were
rejected, and then sought a COA from this court on only three claims: Atkins,
VCCR, and Wiggins.
      Pertinent to the instant appeal, Ibarra contended that “his trial counsel
was ineffective in his investigation, development, and presentation of
mitigation evidence, as well as the development of rebuttal evidence for the
state’s aggravating factors at sentencing” in violation of the Sixth Amendment
and Wiggins, 539 U.S. at 522–23, 123 S. Ct. at 2536. As noted above, the TCCA
dismissed this petition as an abuse of the writ. The district court rejected this
claim for two independent reasons:         (1) procedural default under then-
governing precedent, and (2) alternatively, his claim was meritless, because
Ibarra could not demonstrate prejudice. Ibarra, 691 F.3d at 683. This court
held that reasonable jurists “could not disagree with the district court’s
conclusion that Petitioner’s Wiggins claim was procedurally defaulted” and
denied a COA. Id. at 685.
      As to the Atkins claim, this court denied a COA on alternative grounds
of procedural bar, non-exhaustion, and meritlessness. The evidence Ibarra
offered in state court included an unsworn, inadmissible expert witness
statement concerning Ibarra’s IQ; an investigative report about his alleged
adaptive deficits; and the opinion of Dr. Stephen Mark, who had found no
evidence of mental handicap after two examinations of Ibarra. The TCCA had
rejected this claim on the merits. Ibarra consequently offered material new
evidence in federal court, rendering his claim unexhausted and procedurally
barred.   Finally, reviewing the state court record, this court found it not


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                                   No. 17-70014
debatable that the state courts’ rejection of Ibarra’s Atkins claim on the merits
did not violate 28 U.S.C. § 2254(d)(1). Ibarra, 691 F.3d at 681–83. 1
      The      Supreme     Court     then     decided       Trevino    v.     Thaler,
569 U.S. 413, 133 S. Ct. 1911 (2013). On a motion for rehearing, this court
granted rehearing in part and vacated our initial decision “only to the extent
inconsistent with Trevino and grant[ed] a COA only to that extent; in all other
respects, the majority and dissenting opinions [of the prior opinion] remain[ed]
in effect.”   Ibarra, 723 F.3d at 600.   Judge Graves concurred in part and
dissented in part.
      Back in the district court, Ibarra moved to stay and remand so that he
could pursue his ineffective assistance of counsel (“IATC”) claim in state court.
The district court denied this motion.       The case was reassigned to Judge
Pitman when Judge Smith retired. Ruling on a motion for rehearing of the
denial order, Judge Pitman affirmed the denial and held sua sponte that a COA
should not issue because Ibarra’s IATC claim was not “substantial.”
                II.   Standard of Review and Controlling Law
      Martinez v. Ryan held that “a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective assistance at trial
if, in the initial-review collateral proceeding, there was no counsel or counsel
in that proceeding was ineffective.”     566 U.S. 1, 17, 132 S. Ct. 1309, 1320
(2013). This principle was extended to Texas in Trevino, 569 U.S. at 429,
133 S. Ct. at 1921.    Such a “substantial claim” constitutes “cause” for the
procedural default, but, in line with traditional precedent, the petitioner must
also prove that he suffered “prejudice” from counsel’s errors.              Martinez,
566 U.S. at 10, 132 S. Ct. at 1316 (citing Coleman v. Thompson, 501 U.S. 722,



      1  This court also denied COA on the VCCR claim, a holding that has not been
challenged.
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                                  No. 17-70014
750, 111 S. Ct. 2546 (1991)). A “substantial” claim is one that has “some
merit.” Id. at 14, 132 S. Ct. at 1318. An insubstantial claim is one which “does
not have any merit” or “is wholly without factual support.” Id. at 15–16,
132 S. Ct. at 1319. The standard for evaluating an ineffective assistance of
counsel claim is provided by Strickland, which states the petitioner must show
“that counsel’s performance was deficient” and “that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The State succeeds
in establishing procedural default if the IATC claim is insubstantial, if the
initial habeas attorney was not constitutionally ineffective, or if Ibarra has not
proved sufficient prejudice to overcome his procedural default.        Martinez,
566 U.S. at 15–16, 18, 132 S. Ct. at 1319, 1321.
                                  III.   Analysis
      Ibarra argues that his trial attorneys were ineffective for failing to
investigate and present additional mitigating evidence about Ibarra’s
background.     He alleges that a “reasonable investigation” would have
uncovered:
      (1) Ibarra’s extreme childhood impoverishment to the point of
      malnourishment and living conditions far more dire than
      “humble;” (2) extreme physical and emotional abuse perpetrated
      against Ibarra as a child by his father; (3) Ibarra’s witnessing
      extreme physical and emotional abuse perpetrated against loved
      ones by his father as a child; (4) Ibarra’s attempts to care for and
      protect his siblings from their poverty and from their father’s
      abuse;    (5) Ibarra’s    significantly   subaverage     intellectual
      functioning; (6) Ibarra’s developmental intellectual disability; and
      (7) Ibarra’s development of severe post-traumatic stress disorder
      as a result of his experiencing and witnessing the extreme violence
      perpetrated by his father throughout his childhood and



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                                    No. 17-70014
      experiencing the near deaths and deaths of family members due to
      their extreme poverty. 2
Ibarra contends that trial counsels’ failure to present this evidence prejudiced
him at the sentencing stage and led the jury to unanimously conclude that no
mitigating factors existed to support a sentence of life imprisonment instead of
death.
      This court earlier granted a COA because Ibarra’s original IATC claim
was debatable, and it was also debatable whether his initial habeas counsel
was ineffective for not pursuing this claim in state court.
      A. Whether Ibarra’s New Evidence is Admissible
      The parties join issue first over the admissibility of mitigating evidence
presented by Ibarra for the first time in the district court and neither developed
in nor considered by the state courts. As a general matter, federal habeas law
bars federal courts from considering evidence not diligently developed in state
court by the habeas petitioner. See 28 U.S.C. § 2254(e)(2). The State argues
that, in light of the absence of the newly developed evidence from the state
court record, despite its availability, he is now barred from presenting it in
federal court. See Holland v. Jackson, 542 U.S. 649, 653, 124 S. Ct. 2736, 2738
(2004) (holding that attorney error in state habeas proceedings is “chargeable
to the client”).
      Ibarra responds that in Martinez, the Supreme Court created a narrow
exception to the vicarious fault rule for claims involving inadequate assistance
of counsel during initial-review collateral proceedings (citing Martinez,
556 U.S. at 9). He further contends that because establishing cause for a
procedural waiver under Martinez can allow a habeas petitioner to avoid the


      2 Ibarra also contends that the district court was obliged to hold an evidentiary
hearing on his Martinez claim, but circuit precedent does not support such a requirement.
See Segundo v. Davis, 831 F.3d 345, 351 (5th Cir. 2016).

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                                  No. 17-70014
procedural bar and bring an ineffective assistance of counsel claim in federal
court, establishing cause under Martinez must allow a habeas petitioner to
present new evidence in federal court in connection with that claim. This court
need not discuss the validity of this claim, however, because even if Ibarra’s
new evidence is admissible, his claim fails to meet the standard set forth in
Strickland, for the reasons below. See Newbury v. Stephens, 756 F.3d 850, 872
(5th Cir. 2014) (“Because [the petitioner] has already received all of the relief
available to him under the authority of Martinez and Trevino, that is, review
of the merits by the federal court, it is not necessary” for the court to analyze
the district court’s application of those cases in further detail).
      B. Whether State Habeas Counsel’s Performance Was Deficient
      as a Matter of Law
      Preliminarily, Ibarra argues that the district court violated the law of
the case by determining that his claim did not amount to a “substantial”
Strickland claim because, in his view, this court’s decision to grant a COA by
definition meant that his claim was substantial. This argument misapplies
the standard for granting a COA. This court’s grant of a COA means only that
reasonable jurists could debate whether Ibarra’s claim was substantial, Buck
v. Davis, 137 S. Ct. 759, 775 (2017); it does not mean that the court held
Ibarra’s claim itself to be substantial on the merits. And after our grant of
COA, the debate took place in the district court, and the court concluded that
Ibarra’s Strickland claim was not substantial.         Thus, the district court’s
decision did not violate the law of the case. See, e.g., Trevino v. Davis, 861 F.3d
545, 550–551 (5th Cir. 2017), cert. denied, 138 S. Ct. 1793 (rejecting trial-IAC
claim on merits after this court granted COA).
      Next, Ibarra contends that the district court erred by holding that his
state habeas counsel’s performance was not deficient as a matter of law. The
district court reviewed the evidence and concluded that there was “nothing to

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                                   No. 17-70014
support Ibarra’s claim that counsel failed to investigate and present evidence
in mitigation during the punishment phase, or that Ibarra’s first habeas
counsel was ineffective for failing to raise the IATC issue as it related to
mitigation.” In so holding, the district court noted that Ibarra’s trial attorneys
filed multiple motions including for investigative assistance and psychological
evaluation. Ibarra was evaluated twice by Dr. Mark, a psychiatrist, who found
no evidence of intellectual disability, discussed Ibarra’s childhood, education,
work history and alcohol abuse with him, and suspected him of “malingering.”
Further, the court found that much of the mitigating evidence that Ibarra
proffers was in fact presented to the jury through the testimony of Ibarra’s wife
and sister, including “that [Ibarra] came to the United States to find work to
help supports his family, that their family was poor, and they lived in ‘humble’
circumstances, working on the land, and the circumstances of his family
situation in the United States.”
      To the extent that trial counsel performed an investigation, the facts
were properly presented to the jury, and the jury nevertheless found no
mitigating factors to support life imprisonment, it was not deficient under
Strickland for Ibarra’s state habeas counsel not to pursue an IATC claim in
state habeas proceedings. To be sure, Ibarra’s newly offered evidence and
federal court briefing go into greater detail about Ibarra’s specific
circumstances, but there is no evidence that Ibarra’s state habeas counsel’s
decision not to investigate and present the evidence in more granular detail to
the state habeas court amounted to deficient performance as a matter of law.
Under Strickland, counsel’s conduct is “strongly presumed to fall within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 690.
Moreover, counsel’s advice or decisions need not be perfect—they need only to
fall within the “range of competence demanded of attorneys in criminal cases.”
McCann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449 (1970). The
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                                       No. 17-70014
performance of Ibarra’s state habeas counsel was not unconstitutionally
deficient as measured by Strickland.
      Ibarra also disputes the district court’s conclusion that, even if his state
habeas counsel’s failure to raise the Wiggins 3 issue provided “cause” under the
Strickland standard, Ibarra could not establish that he was prejudiced by that
failure. To establish prejudice, a habeas petitioner must show that but for trial
counsel’s omissions, there exists a reasonable probability that the outcome of
the trial would have been different. See Strickland, 466 U.S. at 694. As the
Supreme Court explained, “Strickland asks whether it is ‘reasonably likely’ the
result would have been different . . . The likelihood of a different result must
be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111–
12, 131 S. Ct. 770 (2011) (quoting Strickland, 466 U.S. at 696).
      The district court concluded that the aggravating factors presented by
the State (detailing Ibarra’s sexual assaults and domestic violence against
multiple family members) were “more than sufficient to outweigh any
additional potentially mitigating evidence” presented by Ibarra in light of the
brutal facts of his case.
      Challenging the district court’s decision, Ibarra contends that the court
erred as a matter of law in two ways. First, he argues that the district court
erred by concluding that “a reasonable probability of a different sentencing
result did not exist because the State’s evidence establishing Mr. Ibarra’s guilt
for the capital offense was ‘compelling’ . . ..” This argument is mistaken. The
district court’s only reference to the compelling evidence against Ibarra
occurred during the court’s recitation of the facts and procedural history of the
case. In any event, the heinousness of the underlying crime—Ibarra raped,
sodomized and murdered a young girl—can certainly be judged “compelling”


      3   Wiggins v. Smith, 539 U.S. 510 (2000).
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                                No. 17-70014
by a jury determining the existence of aggravating circumstances, and Ibarra’s
guilt, which included DNA evidence and strong witness testimony, was also
“compellingly” proven. The “brutal and senseless nature of the crime” and
“evidence of violent conduct” may be weighed against Strickland prejudice.
Smith v. Quarterman, 471 F.3d 565, 576 (5th Cir. 2006).
      Second, Ibarra argues that the district court erred by “holding that [he]
could not prevail because his allegations did not establish that the mitigating
evidence presented ‘outweighed’ the aggravating evidence presented by the
State” because “Texas imposes no such weighing requirement on juries
considering mitigation evidence.” This argument misses the mark because
whether Texas formally requires juries to balance aggravating and mitigating
factors has no bearing on the application of the Strickland standard.
Strickland asks whether it is reasonably likely that, given the totality of the
circumstances, a juror would have concluded that life in prison was a more
appropriate sentence than the death penalty. Courts have routinely stated
that to evaluate prejudice, the court “reweigh[s] the evidence in aggravation
against the totality of the available mitigating evidence.” Wood v. Quarterman,
491 F.3d 196, 203 (5th Cir. 2007) (quoting Wiggins, 539 U.S. at 534); see also
Trevino, 861 F.3d at 549. That is the standard Ibarra must meet to establish
prejudice, and the district court’s application of the standard was not
erroneous.
      It must be added that although Ibarra wholly failed to brief the district
court’s weighing of the trial evidence along with his newly adduced mitigating
evidence, the soundness of the district court’s conclusion can hardly be
doubted. Not only did Ibarra rape, sodomize and strangle his 16-year-old
victim, but he had repeatedly sodomized his eight-year-old nephew and
threatened to kill him; he molested his nephew on other occasions; he had
beaten and come close to strangling a former girlfriend, including forcing her
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                                No. 17-70014
to undress at gunpoint and threatening to kill her; he had beaten the woman
when she confronted him about touching her daughter inappropriately; he had
prior convictions for unlawfully carrying a weapon and DWI; and he
misbehaved repeatedly in prison. The additional evidence Ibarra now proffers
of his poverty and violent upbringing is a double-edged sword in terms of
proving future dangerousness and is greatly outweighed by the facts above.
The district court accurately found no prejudice.
      For the foregoing reasons, the judgment of the district court denying
habeas relief is AFFIRMED.




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                                 No. 17-70014
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      Because I conclude that the district court violated the remand order, I
would vacate and remand. Accordingly, I respectfully dissent.
      This court previously vacated its prior decision, granted a certificate of
appealability (COA), and remanded for the appropriate application of Martinez
v. Ryan, 566 U.S. 1, 17 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013).
See Ibarra v. Stephens, 691 F.3d 677 (5th Cir. 2012), vacated in part, 723 F.3d
599, 600 (5th Cir. 2013).
      The majority states that the district court rejected Ramiro Rubi Ibarra’s
ineffective assistance of counsel claim because it was not “substantial.”
However, the district court explicitly said:
      Initially, the Court notes that Ibarra’s request for a stay should be
      denied as Martinez and Trevino are inapplicable. Judge Smith
      determined that Ibarra’s IATC claim was not just procedurally
      barred, but that it lacked merit. This opinion was affirmed by the
      Fifth Circuit, despite Ibarra’s reliance upon Judge Graves’ dissent.
      Ibarra, 723 F.3d at 600 (Graves, J., dissenting) (“I disagree with
      the majority’s inclusion of the language that ‘in all other respects,
      the majority and dissenting opinions remain in effect.’”). As the
      majority opinion remanded the case only in regard to the
      procedural default issue, the opinion did not effect [sic] the denial
      of Ibarra’s IATC claim on the merits.

      The district court’s interpretation of the remand is erroneous. As the
district court stated above, I previously dissented to the unnecessary,
misleading, and limiting language included by the majority. In part, I was
attempting to avoid a situation such as this. The district court then relied on
that very language to somehow conclude it was prohibited from giving Ibarra’s
IATC claim the consideration ordered by this court. The district court erred in
its determination that this court again affirmed the denial of Ibarra’s IATC
claim on the merits. Further, if that were the case, it would serve no purpose
to remand to the district court on the basis of the erroneous application of
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                                  No. 17-70014
procedural default if we had already concluded the claim has no merit
regardless of whether it is procedurally defaulted.
      The district court’s analysis of the remand order is erroneous. As stated
by the majority, Ibarra had to prove that his claim was “substantial” or had
“some merit.” Martinez, 566 U.S. at 14-16. An insubstantial claim “does not
have any merit.” Id. at 16. Under the district court’s erroneous conclusion
that this court continued to affirm the denial of Ibarra’s IATC claim on the
merits, there was no possible way Ibarra could then establish that the claim
was “substantial” or had “some merit.”
      Moreover, the district court’s subsequent analysis regarding the
application of Martinez is likewise erroneous. The district court said, “[i]n
order to prove that his IATC claim has some merit, a petitioner must satisfy
the requirements of Strickland v. Washington, 466 U.S. 668 (1984).” Ibarra
does not have to fully prove his ineffective assistance of counsel claim. He
merely has to prove that it has “some merit” in order to establish cause for the
procedural default.     Martinez, 566 U.S. at 10.       While Strickland is a
consideration in determining whether a claim is “substantial,” the standards
for proving an ineffective-assistance-of-counsel claim and establishing cause
for procedural default are not interchangeable.     If Ibarra is able to establish
his claim is “substantial” or has “some merit,” then he would have the
opportunity to fully present his claim of ineffective assistance of counsel.
      Despite the fact that this court had already granted a COA and
remanded for the appropriate application of Martinez, the district court then
found “sua sponte, that a certificate of appealability should not issue,” denied
Ibarra’s motion and ordered the case back to this court. In doing so, the district
court violated the remand order.
      For these reasons, I would vacate and remand. Thus, I respectfully
dissent.
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