                        REVISED March 6, 2017

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 17-70006
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
ROLANDO RUIZ,                                                      March 6, 2017
                                                                  Lyle W. Cayce
             Petitioner - Appellant                                    Clerk

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


Before HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Rolando Ruiz murdered Theresa Rodriguez in 1992; he has been
sentenced to death by lethal injection, and his execution is now set for March
7, 2017. At this late hour, Ruiz seeks a certificate of appealability to allow
review of the rejection by the United States District Court of his most recent
federal petition for a writ of habeas corpus. He contends that the district court
erred by affording deference to the state court’s determination of federal law—
specifically, by applying the deferential standard of the Antiterrorism and
                                       No. 17-70006

Effective Death Penalty Act. We conclude that, even under a de novo standard
of review, no “jurist[] of reason could disagree with the district court's
resolution of his constitutional claims or . . . conclude the issues presented are
adequate to deserve encouragement to proceed further.” 1 We deny his motion
for a COA.
                                              I.
       We will not recount again the circumstances surrounding Ruiz’s crime,
his conviction, and his subsequent actions for relief on direct and collateral
review. 2 Facing execution in nineteen days, Ruiz filed his third petition in the
Texas state courts, arguing, among other grounds, that he was entitled to relief
because of the allegedly unconstitutional combination of (1) a significant delay
in time between the date of his conviction and the date of his execution and (2)
the conditions of his confinement, including multiple prior last-minute stays
and withdrawn execution dates he faced during that delay—“a constitutional
challenge against [the] carrying out of a death sentence on the grounds that
the years on death row make the ultimate punishment cruel and unusual.” 3
Five days before his scheduled execution, the Texas Court of Appeal
“dismiss[ed] Ruiz’s . . . application under Article 11.071, § 5” of the Texas Code
of Criminal Procedure and withdrew its stay of execution. 4
       After the Texas Court of Criminal Appeal’s dismissal, Ruiz waited three
months before filing his petition for a writ of habeas corpus in the United
States District Court on February 10, 2017, less than a month before his newly


       1 Buck v. Davis, No. 15-8049, 2017 WL 685534, at *11 (U.S. Feb. 22, 2017) (quoting
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)) (internal quotation marks omitted).
       2 See Ruiz v. Quarterman, 460 F.3d 638 (5th Cir. 2006); Ruiz v. Quarterman, 504 F.3d

523 (5th Cir. 2007); Ruiz v. Stephens, 728 F.3d 416 (5th Cir. 2013); Ruiz v. Stephens, No. 11-
70011, 2017 WL 694492 (5th Cir. Feb. 21, 2017).
       3 Ex Parte Ruiz, No. WR-27,328-03 and WR-27,328-04, 2016 WL 6609721, at *18 (Tex.

Crim. App. Nov. 9, 2016).
       4 Id.


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set execution date of March 7, 2017. The district court dismissed that petition
and denied COA. Ruiz now seeks a COA, a prerequisite to his right to appeal
dismissal of his petition. 5
                                             II.
       Ruiz’s arguments focus upon the level of review his claims received in
the district court. 6 Given the present posture of the case, we can cut to the
chase and assume arguendo that the state court’s rejection of Ruiz’s petition is
due no deference and that we ought review his federal claims de novo. 7 This,
because under de novo review, we are persuaded that we cannot grant a COA.
In deciding whether Ruiz has made the requisite “substantial showing of the
denial of a constitutional right,” 8 we engage in “a threshold inquiry into the
underlying merit of the claims” without engaging in an ultimate merits
analysis and “without full consideration of the factual or legal bases adduced
in support of [Ruiz’s] claims.” 9
       The required substantial showing of the denial of a constitutional right
must have some footing in the law. And we are not aware of any court that has
found an Eighth Amendment violation occasioned by years on death row while
a prisoner pursues his direct and collateral appeals. 10 Our own jurisprudence


       5 28 U.S.C. § 2253(c)(1).
       6  This, in part, because Ruiz avers that the Texas Court of Criminal Appeals
misconstrued the claim he presented to them. That the Texas Court of Criminal Appeals
determined that Ruiz’s claim was not meaningfully distinct from other Lackey claims it had
previously considered and rejected does not mean that court misunderstood his claim. Ruiz’s
accent on his conditions of confinement is common to the Lackey claim; every court that has
rejected it has done so against the backdrop of the conditions of confinement of death row
prisoners.
       7 The district court wrote that “whether this Court reviews Ruiz’s Lackey claim under

a de novo or AEDPA standard, it plainly appears he is not entitled to relief” without further
elaboration.
       8 28 U.S.C. § 2253(c)(2).
       9 Buck, 2017 WL 685534, at *11-12.
       10 See Knight v. Florida, 120 S. Ct. 459, 461 (1999) (Thomas, J., concurring)

(concurring in denial of certiorari in extended death-row confinement claims and, in response
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on the subject is well-known: “[t]here are compelling justifications for the delay
between conviction and the execution of a death sentence. . . . [Prisoners who
have] benefited from this careful and meticulous process . . . cannot [later]
complain that the expensive and laborious process of habeas corpus appeals
which exists to protect [them] violate[s] other of [their] rights.” 11 Ruiz has not
directed us to a single case that has held otherwise. Under a de novo standard
of review, Ruiz has failed to make the “substantial showing of the denial of a
constitutional right” 12 necessary for a COA to issue—claims of this nature have
been rejected by every court that has heard them.
                                             III.
       Much of Ruiz’s petition discusses the conditions of confinement he has
faced on death row. We do not resolve the ultimate merits of Ruiz’s claim; that
road is forbidden to us on a motion for a COA. 13 Nor do we address the
conditions death row inmates, in Texas or elsewhere, face generally. The
solitary confinement of prisoners has long been at issue in suits challenging
prison conditions. 14 To the extent that Ruiz’s conditions of confinement violate


to Justice Stevens’s “invitation to state and lower courts to serve as ‘laboratories’ in which
the viability of this claim could receive further study,” arguing that courts “have resoundingly
rejected the claim as meritless”); see also Stafford v. Ward, 59 F.3d 1025, 1028 (10th Cir.
1995) (“We conclude that Appellant has failed to show that executing him after fifteen years
on death row, during which time he faced at least seven execution dates, would constitute
cruel and unusual punishment.”); Johns v. Bowersox, 203 F.3d 538, 547 (8th Cir. 2000)
(holding that, even if petitioner’s Lackey claim were not barred, “[a]bsent evidence that the
delay was caused intentionally to prolong the defendants time on death row, we [have] held
that it [does] not even begin to approach a constitutional violation”); Smith v. Mahoney, 611
F.3d 978, 998 (9th Cir. 2010) (holding, in the context of AEDPA review, that “the Supreme
Court has never held that execution after a long tenure on death row is cruel and unusual
punishment”).
        11 White v. Johnson, 79 F.3d 432, 439 (5th Cir. 1996); accord Reed v. Quarterman, 504

F.3d 465, 488 (5th Cir. 2007); Carter v. Johnson, 131 F.3d 452, 466 (5th Cir. 1997); Lackey v.
Johnson, 83 F.3d 116 (5th Cir. 1996).
        12 28 U.S.C. § 2253. See also Buck, 2017 WL 685534, at *11; Miller-El, 537 U.S. at 336;

Jackson v. Dretke, 450 F.3d 614, 616 (5th Cir. 2006).
        13 Buck, 2017 WL 685534, at *12.
        14 See, e.g., Davis v. Ayala, 135 S. Ct. 2187, 2208-10 (2015) (Kennedy, J., concurring).


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his right to due process or his substantive rights under the Eighth
Amendment, Congress has created a specific throughway to the federal courts
to redress such wrongs: a timely § 1983 suit. 15
       Despite being a named plaintiff in a § 1983 method-of-execution suit
challenging Texas’s lethal injection protocol filed last year, 16 Ruiz voiced no
concern regarding Texas’s death row conditions of confinement, this at a time
that would have allowed him to develop his claims in the district court. Had he
done so, we might be properly situated to determine the merit of such claims.
Instead, he brings his grievance now, at the eleventh hour, when its
development would again force a stay of execution. In response to systemic
abuses by prisoners bringing dilatory claims, the federal courts—and this
circuit in particular—have been forced to develop extensive jurisprudence
resisting those requests for long-available claims presented, for the first time,
on the eve of execution. 17 Ruiz alleges he has been in solitary confinement for
the majority of the time he has been on death row. To the extent he wished to
challenge that confinement, he had ample opportunity to do so. In accordance
with our earlier decisions regarding last-minute claims, we are disinclined to
grant him equitable relief at this late hour.


       15 42 U.S.C. § 1983 (2012).
       16 See Wood v. Collier, 836 F.3d 534 (5th Cir. 2016).
        17 See, e.g., Nelson v. Campbell, 541 U.S. 637, 650 (2004) (“Given the State’s
significant interest in enforcing its criminal judgments, there is a strong equitable
presumption against the grant of a stay where a claim could have been brought at such a
time as to allow consideration of the merits without requiring entry of a stay.”); Sepulvado v.
Jindal, 729 F.3d 413, 420-21 (5th Cir. 2013) (vacating a stay where inmate filed last-minute
challenge against a procedure he had known about for two years); Brown v. Livingston, 457
F.3d 390, 391 (5th Cir. 2006) (denying equitable relief where “[a]lthough [the prisoner’s]
direct appeal has been final for seven years, he did not file the instant complaint until six
days before his scheduled execution”); Reese v. Livingston, 453 F.3d 289, 291 (5th Cir. 2006)
(denying stay of execution because “a plaintiff cannot wait until a stay must be granted to
enable him to develop facts and take the case to trial—not when there is no satisfactory
explanation for the delay”); White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005) (denying stay
in dilatory § 1983 challenge to lethal injection protocol).
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                                       IV.
        Ruiz’s claims have been heard and, from top to bottom, found meritless.
Working in the harness of statutory and settled common law rules, the federal
and state courts have done handsprings to protect Ruiz’s procedural and
substantive rights. This Court has stayed his execution twice before to allow
full consideration of his claims. His most recent claims do not warrant a third
stay.
        We are keenly aware of the admonitions of Buck v. Davis. Properly
applied, they do not reset the balance of federalism struck by Congress and the
settled constitutional commands attending capital punishment. We are equally
sensitive to the compelling concerns expressed by several justices. They call on
the power of courts that are no strangers to the conditions of confinement of
death sentence prisoners. Eighth Amendment concerns, by definition, are
seldom implicated by an otherwise valid life sentence of an adult. Rather, these
expressions of concern respond to the conditions of confinement and the visit
of uncertainty upon death penalty prisoners; a product in no small part of the
shifting rules of engagement from a top-down, case-by-case effort to develop a
coherent jurisprudence—this by the tandem work of state and federal courts
compelled by federalism.
        One might suggest that the very developmental movement of this body
of law, with the accent upon the Eighth Amendment’s sometimes-look to
evolving standards, compels here the answer to the questions posed by an
application for a COA—whether the petitioner has made a substantial showing
of the denial of a constitutional right, even when faced, not by want of law, but
a wall of cases uniformly rejecting the claim—a wall which only the High Court
can breach in a case that reaches it while abiding the rules essential to the
entire process. Inviting ventures by the lower federal courts is misaddressed.


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Given the statutory restraints upon the inferior federal courts, they are ill-
equipped to afford solutions while remaining faithful to the directives for
interactive readings of federal law by state and federal courts. Development of
this body of law comes more naturally from the state courts, whose decisions
are directly reviewable on certiorari without the restraints the inferior federal
courts face on habeas, and on whose shoulders fall the overwhelming share of
the difficulties wrought by capital punishment. To the extent evolving
standards are the reference, the ear of state courts may be closer to the people.
      Make no mistake, the claim that uncertainties facing a death-sentenced
petitioner are a violation of the Eighth Amendment challenge the very validity
of capital punishment, the response to which is the province of the Supreme
Court in its resolution of cases that make their way there without jumping the
well-laid traces so necessary to our federalism. The path to the Supreme Court
in capital cases need not always be—in the first instance—through the inferior
federal courts.
                                      ****
      The motion for a COA is denied. The motion for a stay pending our
consideration of a motion for a COA is denied as moot.




DENNIS, Circuit Judge, concurs in the decree denying a COA and a stay of
proceedings.




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