     Case: 18-70034   Document: 00515184327    Page: 1   Date Filed: 11/01/2019




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

                                                                       FILED
                                No. 18-70034                    November 1, 2019
                                                                  Lyle W. Cayce
KER’SEAN OLAJUWA RAMEY,                                                Clerk


                  Petitioner - Appellant

v.

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

                  Respondent - Appellee



                Appeal from the United States District Court
                     for the Southern District of Texas


Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Ker’Sean Olajuwa Ramey (“Ramey”), a Texas inmate convicted of capital
murder and sentenced to death, filed a federal petition for a writ of habeas
corpus on November 13, 2013. On July 11, 2018, the United States District
Court for the Southern District of Texas denied Ramey’s petition and denied
Ramey’s request for a certificate of appealability (“COA”). Ramey now applies
to this court for a COA. This court has jurisdiction under 28 U.S.C. §§ 1291
and 2253 to consider whether a COA should issue. Ramey contends that a COA
is appropriate so that this court can properly consider: (1) whether Ramey’s
trial was tainted by the exclusion of black jurors (the “Batson Claim”); (2)
whether trial counsel rendered unconstitutionally ineffective assistance before
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                                No. 18-70034
trial and during the guilt phase of trial (the “Strickland Guilt Phase Claim”);
and (3) whether trial counsel rendered unconstitutionally ineffective
assistance during the sentencing phase of trial (the “Strickland Mitigation
Phase Claim”). We GRANT Ramey’s application for a COA on his Batson Claim
and Strickland Guilt Phase Claim. We DENY Ramey’s application for a COA
on his Strickland Mitigation Phase Claim.


             I. FACTUAL AND PROCEDURAL BACKGROUND
      The facts of this case have been detailed elsewhere. Ramey v. Davis, 314
F. Supp. 3d 785 (S.D. Tex. 2018); Ramey v. State, No. AP-75,678, 2009 WL
335276 (Tex. Crim. App. Feb. 11, 2009). Therefore, we provide only a brief
exposition here. On December 17, 2005, the State of Texas indicted Ramey for
capital murder, charging him for the murders of three individuals in Jackson
County, Texas. A Texas jury found Ramey guilty of capital murder. Following
the sentencing phase of the trial, the jury answered Texas’s special issue
questions in a manner requiring imposition of the death penalty.
      Ramey, through the same counsel who represented him at trial, appealed
directly to the Texas Court of Criminal Appeals. On February 11, 2009, the
Texas Court of Criminal Appeals affirmed Ramey’s conviction and sentence.
Ramey, 2009 WL 335276. Through separate, appointed counsel, Ramey also
filed a state application for a writ of habeas corpus. The same judge who
presided over Ramey’s trial adjudicated his state habeas application. Ramey,
314 F. Supp. 3d at 796. The judge entered an order recommending that the
Texas Court of Criminal Appeals deny habeas relief. Id. at 796. After setting
the case for submission, the Texas Court of Criminal Appeals denied Ramey’s
request for habeas relief on November 7, 2012. Ex parte Ramey, 382 S.W.3d
396, 398 (Tex. Crim. App. 2012). On December 4, 2012, the Texas Court of
Criminal Appeals issued its mandate.
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                                  No. 18-70034
      On November 14, 2013, Ramey filed a federal petition for a writ of habeas
corpus that listed five claims and “incorporate[d] into his claims for relief the
claims filed in his direct appeal brief and in his state habeas application.” After
his initial federal habeas counsel withdrew and new federal habeas counsel
was appointed, Ramey amended his filing on December 15, 2015, raising six
additional claims. On July 11, 2018, the district court denied relief and denied
a COA.


                  II. TIMELINESS OF RAMEY’S PETITION
      The State first contends that Ramey’s federal habeas petition, filed on
November 14, 2013, was untimely because he filed it more than one year after
the Texas Court of Criminal Appeals’ November 7, 2012 denial of Ramey’s state
habeas petition. The district court held that the one-year limitations period did
not begin running until the mandate issued, which means Ramey had until
December 4, 2013 to file his federal habeas petition. The district court also held
that the Batson Claim, the Strickland Guilt Phase Claim, and the Strickland
Mitigation Phase Claim all relate back to Ramey’s federal habeas petition filed
on November 14, 2013. We agree with the district court.
      AEDPA “enacted a one-year period of limitation for federal habeas
proceedings that runs, unless tolled, from the date on which the petitioner’s
conviction became final at the conclusion of direct review . . . ” Cantu-Tzin v.
Johnson, 162 F.3d 295, 298 (5th Cir. 1998). This one-year limitations period is
tolled while an application for state post-conviction relief is “pending.” 28
U.S.C. § 2244(d)(2). Here, the question is whether, in a capital case set for
submission, a matter is “pending” after the Texas Court of Criminal Appeals
renders its opinion but before that court issues its mandate.
      We look to Texas’s “post-conviction procedures to determine . . . when
state review ended.” Watts v. Brewer, 416 F. App’x 425, 428 (5th Cir. 2011)
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(cleaned up). The Supreme Court has held that we must determine “[w]hen the
state courts have issued a final judgment on a state application” to decide if “it
is no longer pending.” Lawrence v. Florida, 549 U.S. 327, 334 (2007).
      While this court has held that a Mississippi habeas petition remains
pending until the mandate issues, Watts, 416 F. App’x at 430, this court has
not determined whether the same rule applies in Texas. In Texas, the issuance
of the mandate in cases set for submission signals that “the judgment [is]
final.” Hartfield v. Thaler, 403 S.W.3d 234, 239 (Tex. Crim. App. 2013); see also
Ex parte Webb, 270 S.W.3d 108, 109 n.2 (Tex. Crim. App. 2008) (recognizing
that issuance of a mandate in Texas is “an appellate court’s official notice,
directed to the court below, advising it of the appellate court’s decision and
directing it to have the appellate court’s judgment duly recognized, obeyed, and
executed.”); Ex parte Johnson, 12 S.W.3d 472, 473 (Tex. Crim. App. 2000)
(explaining judgment is not final before issuance of the mandate). The issuance
of the mandate is particularly important in Texas capital habeas procedure. If
a capital case is “filed and set for submission,” Texas criminal procedure
prohibits a lower court from setting an execution date until “the court of
criminal appeals issues a mandate.” Tex. Code Crim. Pro. Art. 43.141(a)(2).
      The State’s focus on Ott v. Johnson is misplaced. There, we addressed
whether the one-year limitations period should be tolled during the ninety days
that a state habeas applicant has to seek a writ of certiorari from the United
States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). We
held that a Texas habeas “application becomes final after a decision by the
state’s high court.” Id. However, that case did not involve a capital habeas
petition that had been set for submission by the Texas Court of Criminal
Appeals, meaning that no mandate would issue at all.
      For these reasons, we affirm the district court’s denial of the State’s
procedural challenge to the timeliness of Ramey’s November 14, 2013 habeas
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petition. We embrace the district court’s narrow holding on this issue: “[I]n a
capital habeas case set for submission, a case is pending for the purposes of
section 2244(2) until the Texas Court of Criminal Appeals issues a mandate.”
Ramey, 314 F. Supp. 3d at 800.


        III. SUBSTANTIVE DEFICIENCIES IN RAMEY’S PETITION
      The State next contends that Ramey’s federal habeas petition, as filed
on November 14, 2013 (the “Skeletal Petition”), was deficient because it “failed
to adequately address any claim.” The State argues that the Skeletal Petition
was not a “petition” at all because it did not comply with Rule 8 of the Federal
Rules of Civil Procedure. The State also argues that the claims contained in
Ramey’s amended habeas petition filed on December 15, 2015 do not relate
back to the claims in Ramey’s Skeletal Petition. The district court rejected the
State’s argument, holding that the State “concedes” that Ramey’s Strickland
claims relate back. It then held that Ramey’s Batson claim was incorporated
by reference in his Skeletal Petition and that the Batson claim in his amended
petition related back to the incorporated Batson claim. Id. Again, we agree with
the district court.
      First, we concur with the district court’s finding that the State “concedes”
that Ramey’s Strickland claims relate back to the Skeletal Petition and,
therefore, were properly preserved. We note that the State does not challenge
the district court’s factual finding that the State “concede[d]” its position on
these two claims. See United States v. Whitfield, 590 F.3d 325, 346 (5th Cir.
2009) (“[A] party waives any argument that it fails to brief on appeal.”).
Instead, the State argues on the merits, bypassing the district court’s analysis.
A failure to identify error in the district court’s reasoning constitutes waiver.
See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); Yohey v. Collins, 985


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                                  No. 18-70034
F.2d 222, 224–25 (5th Cir. 1993); Brinkmann v. Dallas Cty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Second, we affirm the district court’s holding that Ramey’s Batson claim
relates back to the Skeletal Petition. The Supreme Court has made clear that
a federal habeas petition that explicitly references external appended
documents incorporates those documents by reference. Dye v. Hofbauer, 546
U.S. 1, 4 (2005); see also Allen v. Vannoy, 659 F. App’x 792, 804–05 (5th Cir.
2016) (reviewing a claim raised during state habeas proceedings and
incorporated by reference in federal habeas petition). Ramey incorporated all
claims from his direct appeal brief and state habeas application into his
Skeletal Petition. Although Ramey’s Batson claim did not appear in the short
list of claims in his Skeletal Petition, it did appear in his prior briefing.
Therefore, the question is whether Ramey’s Batson claim, as pled in his
amended petition, is “tied to a common core of operative facts” with the Batson
claim incorporated by reference into his Skeletal Petition. Mayle v. Felix, 545
U.S. 644, 66 (2005); United States v. Randall & Blake, 817 F.2d 1188, 1191
(5th Cir. 1987) (“[An] amended complaint relates back if it asserts the same
claim ‘set forth or attempted to be set forth’ in the original complaint.”). Ramey’s
amended petition alleges exclusion of black jurors from Ramey’s jury, and the
Skeletal Petition by incorporation alleges identical claims with similar
underlying facts. For example, the Skeletal Petition by incorporation
challenged the State’s use of the jury shuffle, the State’s striking of several
black veniremembers, and the State’s peremptory strike against Cheryl
Steadham-Scott. These allegations are “tied to a common core of operative
facts” with the Batson claim included in Ramey’s amended petition.
      The State relies on the Supreme Court’s holding in Baldwin County
Welcome Center v. Brown, 466 U.S. 147 (1984), to argue that Ramey’s Skeletal
Petition failed to satisfy Federal Rule of Civil Procedure 8. In Baldwin County,
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the Supreme Court held that a right-to-sue letter sent by the EEOC could not
qualify as a “complaint” under Rule 8. Id. at 149–50. However, the Court did
not announce a rule that claims cannot be incorporated by reference in federal
court. Instead, the Court reasoned that the right-to-sue letter did not contain
a “statement in the letter of the factual basis for the claim of discrimination.”
Id. By contrast, Ramey’s Skeletal Petition incorporates by reference post-
conviction briefs that lay out the factual basis for his Batson claim.
      For these reasons, we agree with the district court that the three claims
before us were preserved when Ramey filed his Skeletal Petition.


                               IV. DISCUSSION
      We will grant a COA upon “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). A COA will issue if the applicant
shows that “jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller–El v.
Cockrell, 537 U.S. 322, 327 (2003). Thus, a COA should issue if “reasonable
jurists could debate whether . . . the petition should have been resolved in a
different manner.” Id. at 336 (quoting Slack, 529 U.S. at 484). Importantly, “a
COA does not require a showing that the appeal will succeed. . . . [A] COA will
issue in some instances where there is no certainty of ultimate relief.” Miller-
El, 537 U.S. at 337.
      “AEDPA requires federal district courts to give deference to state court
decisions.” Davila v. Davis, 650 F. App’x 860, 868–69 (5th Cir. 2016), aff’d, 137
S. Ct. 2058 (2017). “At this stage, however, [this court] only ask[s] whether the
District Court’s application of AEDPA deference, as stated in SS 2254(d)(2) and
(e)(1), . . . was debatable amongst jurists of reason.” Miller-El, 537 U.S. at 341.


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      We conduct a “threshold inquiry into the underlying merit” of Ramey’s
habeas claims to determine whether a COA should issue. Miller-El, 537 U.S.
at 327. This inquiry “does not require full consideration of the factual or legal
bases” of the claims. Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005). We
need only consider “if the District Court’s decision was debatable.” Rhoades v.
Davis, 852 F.3d 422, 427 (5th Cir. 2017). When a prisoner faces death, “‘any
doubts as to whether a COA should issue must be resolved’ in the petitioner’s
favor.” Id. (quoting Allens v. Stephens, 805 F.3d 617, 625 (5th Cir. 2015)).
      Ramey contends that a COA is appropriate so that this court can
properly consider his Batson Claim, his Strickland Guilt Phase Claim, and his
Strickland Mitigation Phase Claim. We conclude that Ramey is entitled to a
COA on his Strickland Guilt Phase Claim and Batson Claim, but we reject
Ramey’s application for a COA on his Strickland Mitigation Phase Claim.
   A. Batson Claim
      Ramey contends that the district court erred when it denied his Batson
claim. Although the district court gave a detailed analysis of this issue, we
conclude “that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller–El, 537 U.S. at 327.
Therefore, we grant a COA on this issue.
      Claims challenging the use of race-based peremptory strikes require the
application of Batson’s three-step test. A defendant must first make a prima
facie case that race motivated the challenged strikes. Batson v. Kentucky, 476
U.S. 79, 96–97 (1986). If the defendant carries this burden, a prosecutor must
provide race-neutral reasons for the challenged strikes. Id. at 97–98. Finally,
the trial court or reviewing court considers whether the defendant has carried
his burden of proving purposeful discrimination. Id. at 98. Here, we bypass
step one because the prosecutor volunteered a race-neutral explanation for the
peremptory strike at issue. Hernandez v. New York, 500 U.S. 352, 359 (1991)
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(“Once a prosecutor has offered a race-neutral explanation for the peremptory
challenges and the trial court has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the defendant had made a
prima facie showing becomes moot.”).
        We need only conduct a “preliminary, though not definitive”
consideration of Ramey’s Batson claim. Miller-El, 537 U.S. at 338. “In the
context of the threshold examination in this Batson claim the issuance of a
COA can be supported by any evidence demonstrating that, despite the neutral
explanation of the prosecution, the peremptory strikes in the final analysis
were race based.” Id. at 340. “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” 1 Id. at
327.
        The State used one peremptory strike to strike a black juror, Ms.
Steadham-Scott. At the time of the strike, no objection was proffered. Ramey’s
trial counsel did not object to the State’s peremptory strike of Ms. Steadham-
Scott until three weeks after the strike was exercised and only moments before
the jury was sworn. The objection and subsequent exchange were the following:
        Dr. Willie [Ramey’s trial counsel]: And the last thing, Your Honor, just
        for a housekeeping matter, when we were doing the voir dire on the jury
        and the supplemental panel, juror number two, which is Cheryl
        Steadham-Scott was peremptorily struck by the prosecution and we were




        1The State argues that we should apply a more stringent standard to Ramey’s Batson
claim, relying on Hoffman v. Cain, 752 F.3d 430 (5th Cir. 2014), among other cases. But
Hoffman involved this court’s review of a district court’s denial of federal habeas relief and
grant of a COA. Id. at 434. Other cases cited by the State for a heightened standard did not
involve review of an application for a COA, see, e.g., Felkner v. Jackson, 562 U.S. 594, 598
(2011), but instead involved review of substantive federal habeas petitions. See generally
Miller-El, 537 U.S. 322 (2003).
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      just wanting to note that the prosecution did not give any race neutral
      explanations for that and we just so want that for the record.

      Mr. Bell [the prosecutor]: Well, there wasn’t any Batson claim, Your
      Honor. Had there been a Batson claim made at the time, I would have
      certainly addressed that issue with the Court. I was prepared to address
      the race neutral reasons for that strike, but to request it at this time, I
      don’t want to say it’s untimely, but it is. But, I mean, I was prepared to
      do that, but there was never a motion for that, Your Honor, so.

      The Court: Do you have your notes on that juror?

      Mr. Bell: No, not with me, Your Honor.

      The Court: It was my recollection of that juror that there was [sic] some
      issues that the State went into that would give rise to a peremptory
      strike. I don’t have those notes in front of me. I wasn’t prepared to do
      that today.

      Mr. Bell: I wasn’t either, Your Honor, but the reason I didn’t go ahead, I
      will tell the Court that it was my understanding if I would have
      continued to pursue the line of questioning, that juror would have most
      likely be challengeable for cause, but I didn’t do it because her
      questionnaire clearly indicated that she could not impose the death
      penalty and there were other many racially neutral reasons and, if the
      Court wants, I can try to go back and resurrect those notes.

      The Court: I’m comfortable with the record reflecting what it did with
      respect to that juror at this time.
      In the juror questionnaire cited by the prosecutor, Ms. Steadham-Scott
did not respond to the question “Have you ever been opposed to the death
penalty?” However, Ms. Steadham-Scott did respond that she was “neither
generally opposed to nor generally in favor of capital punishment.”
      Then, during oral questioning about her questionnaire answers, Ms.
Steadham-Scott asserted ambivalence about the death penalty, stating “Yea. I
don’t know how I would change it, but—I don’t know how I would change it.”
When asked if she believed in the death penalty, Ms. Steadham-Scott

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responded “I don’t know if I believe in it, you know.” Ms. Steadham-Scott was
then asked a series of questions about Texas’s special issue jury questions.
That exchange follows:
     Mr. Bell: I’m just asking you would you want a greater amount of
     evidence or a greater burden to impose a punishment in a death penalty
     case than in a theft case? I don’t know. I’m just asking you.

     Ms. Steadham-Scott: Yes.

     Mr. Bell: Okay. Let me ask you about – I’m going to show you how the
     death penalty works.

     Ms. Steadham-Scott: Okay.

     Mr. Bell: And I’ll do it as quickly as I can. All right?

     Ms. Steadham-Scott: That’s fine.

     Mr. Bell: If – if you find somebody guilty of capital murder --

     Ms. Steadham-Scott: Okay.

     Mr. Bell: -- they can only get life or death.

     Ms. Steadham-Scott: Okay.

     Mr. Bell: And the way they get the death penalty is you don’t write life
     or death.

     Ms. Steadham-Scott: Okay.

     Mr. Bell: You answer two questions.

     Ms. Steadham-Scott: Okay.

     Mr. Bell: Okay? This is the first question. Do you find from the evidence
     beyond a reasonable doubt that there is a probability that the Defendant
     will commit criminal acts of violence that would constitute a continuing
     threat to society. Now that’s a lot of words, so let’s stop and think about
     that?
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  Ms. Steadham-Scott: Uh-huh.

  Mr. Bell: What that’s asking of the juror is basically do you find he’s
  going to be a danger to society in the future.

  Ms. Steadham-Scott: Okay.

  Mr. Bell: Okay. Now the way that thing is worded is if you believe beyond
  a reasonable doubt. Okay?

  Ms. Steadham-Scott: Uh-huh.

  Mr. Bell: That there was a probability. Probability is simply more likely
  than not.

  Ms. Steadham-Scott: Yes.

  *     *     *

  Mr. Bell: In order to answer that yes, that he will be dangerous in the
  future and he could possibly get the death penalty. Not this Defendant,
  but any defendant. You see?

  Ms. Steadham-Scott: Right.

  Mr. Bell: They could actually make that decision on just slightly more
  likely than not.

  Ms. Steadham-Scott: Right.

  Mr. Bell: You think you could do that? Actually impose a death penalty
  when the only evidence was that it would be slightly more likely than
  not or would you want much more of a – of a burden before you would
  want to impose a death penalty?

  Ms. Steadham-Scott: I would need much more of a burden.

  Mr. Bell: Okay. I pass the juror.



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      As quoted, the State offered race neutral explanations for striking Ms.
Steadham-Scott. To repeat, at Batson’s step two, we only ask whether the
State’s proffered reasons for the at-issue strike are “not inherently
discriminatory.” Rice v. Collins, 126 S. Ct. 969, 974 (2006). The State’s
explanation need not be “persuasive, or even plausible.” Id. (quoting Purkett v.
Elem, 514 U.S. 765, 767–68 (1995) (per curiam)). The State’s proffered reasons
for striking Ms. Steadham-Scott focused on her ambivalence about her ability
to impose the death penalty.
      At Batson’s step three, we consider the “persuasiveness of the
justification” provided by the State. Id. (quoting Purkett, 514 U.S. at 768). Still,
the ultimate burden at Batson’s step three “rests with, and never shifts from,
the opponent of the strike.” Id. (quoting Purkett, 514 U.S. at 768). In an effort
to carry this burden, Ramey points to the circumstances surrounding the
State’s strike of Ms. Steadham-Scott. Our review of these circumstances gives
us reason to believe that “the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 US. At 327.
      First, Ramey points to the State’s use of a jury shuffle that resulted in
less black jurors being questioned during voir dire of the second venire. When
asked to explain the reason for the shuffle, the State explained:
      I have individuals here in Victoria who have assisted me in going
      through the list and given me information about the prospective
      jurors . . . the overwhelming majority of the folks that they had
      suggested would be good State’s jurors were towards the back of
      the panel. And so in light of that I requested a shuffle.

The trial judge and every court since then has credited this explanation.
      Second, Ramey states that “[t]he State used its peremptory strikes to
exclude 100% of the qualified black prospective jurors.” Although it is true that
no black jurors were empaneled, of the nine black veniremembers, six were
dismissed for cause, two were dismissed as relatives of Ramey, and only one
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was peremptorily struck. See Woodward v. Epps, 580 F.3d 318, 339 (5th Cir.
2009) (“For example, if there are only 3 black members of a 100-member venire
panel, i.e., 3% black, there is a weaker argument that exclusion of 100% of the
black members evidences purposeful discrimination.”).
        Third, more concerning to us, Ramey contends that the State engaged in
disparate questioning of black veniremembers. The State acknowledges that it
engaged in inquiries of black jurors “designed to ferret out racial bias” related
to “perceived mistreatment [by the State] because of race.” The State is
permitted to challenge jurors for cause and the State is permitted “to ascertain
whether the juror has any bias, opinion, or prejudice that would affect or
control the fair determination by him of the issues to be tried.” Connors v.
United States, 158 U.S. 408, 413 (1895). In order to ascertain such a bias, the
State    must     be   permitted   to   engage   in   non-invidious   inquiries   of
veniremembers. But such questions, especially when lopsided, cannot be based
on race or racial stereotypes. Miller-El v. Cockrell, 545 U.S. 231, 241 (2005)
(Miller-El II) (“[T]he implication of race in the prosecutors’ choice of
questioning cannot be explained away”); see also Georgia v. McCollum, 505
U.S. 42, 59 (1992) (“This Court firmly has rejected the view that assumptions
of partiality based on race provide a legitimate basis for disqualifying a person
as an impartial juror.”); Flowers v. Mississippi, 139 S. Ct. 2228, 2247–48
(2019). Here, given the reality that the State questioned black veniremembers
markedly differently than white veniremembers, we will benefit from more
briefing to determine whether the State proceeded based on racial stereotypes.
Miller-El II, 545 U.S. at 263; see also McCollum, 505 U.S. at 59; Flowers, 139
S. Ct. at 2248.
        Fourth, Ramey urges that a comparative juror analysis reveals that
white veniremembers who expressed ambivalence about the death penalty
were ultimately empaneled, while Ms. Steadham-Scott was not. The State’s
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response is two-fold: (1) the questionnaires on which Ramey relies were not
included in the state direct appeal record and therefore cannot be relied upon
in this federal review to undermine the state court’s findings, Cullen v.
Pinholster, 563 U.S. 170, 181 (2011), and (2) Ramey must rely on comparisons
“across the entire venire panel” to carry out a meaningful comparative juror
analysis. We agree that our “review under § 2254(d)(1) is limited to the record
that was before the state court that adjudicated the claim on the merits.”
Pinholster, 536 U.S. at 181. However, we have also held in an unpublished
opinion that it is acceptable to supplement the record to include “juror cards
from the trial . . . to assist in the comparative [juror] analysis.” Hayes v. Thaler,
361 F. App’x 563, 574 n.8 (5th Cir. 2010); see also Reed v. Quarterman, 555
F.3d 364, 375 (5th Cir. 2009) (holding that a federal habeas court can conduct
a comparative juror analysis even if state courts did not). At minimum,
reasonable jurists could debate whether the juror questionnaires on which
Ramey relies are properly considered by this court.
      Ramey points to two jurors whom he contends expressed ambivalence or
uncertainty about imposing the death penalty in their juror questionnaires
similar to that expressed by Ms. Steadham-Scott—Marjorie Jeane and Carol
Laza. Texas has not responded to this comparison. Although Ms. Jeane’s juror
questionnaire indicated that she “ha[d] . . . been opposed to the death penalty,”
she confirmed during voir dire that she made an error when filling out the form
and that she had no opposition to the death penalty. However, Ms. Laza’s juror
questionnaire indicated that she was uncertain about her ability to impose the
death penalty, and during voir dire she could only say that she “hope[d]” she
could make a “fair decision” if the law required her to impose the death penalty.
Therefore, it is difficult, without further briefing, to assess whether Ms. Laza
and Ms. Steadham-Scott are sufficiently distinguishable veniremembers.


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                                  No. 18-70034
      Given these circumstances, “jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further,” Miller-El, 537 U.S.
at 327, and we grant Ramey’s application for a COA on his Batson Claim.
   B. Strickland Guilt Phase Claim
      Ramey contends that trial counsel provided ineffective assistance during
pre-trial investigation and during the guilt phase of trial. In federal district
court, Ramey detailed for the first time specific actions that trial counsel failed
to take and tied these actions to the jury’s finding against him. Ramey did not
exhaust these allegations in state court. In Texas, the Court of Criminal
Appeals would apply its abuse-of-the-writ doctrine to prohibit Ramey from
raising these unexhausted allegations in a successive state habeas application.
See Coleman v. Thompson, 501 U.S. 722, 736 n.1 (1991). This reality would
normally dictate the application of a federal procedural bar. Id. The question,
therefore, is whether reasonable jurists can debate whether this procedural
bar should be excused. Id. at 750 (procedural bar can be excused if “the prisoner
can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law”). In Martinez v. Ryan, the Supreme Court 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 (2012). Once a prisoner meets this standard, the
prisoner must also show that they were prejudiced by counsel’s failure to raise
their Strickland claim. As we describe below, because “jurists could conclude
the issues presented are adequate to deserve encouragement to proceed
further,” we grant Ramey’s application for a COA on this issue. See Miller-El,
537 U.S. at 327.




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                                   No. 18-70034
      i. Cause
      A finding of “cause” that excuses procedural default under Martinez is
appropriate where “(1) the claim of ‘ineffective assistance of trial counsel’ was
a ‘substantial’ claim; (2) the ‘cause’ consisted of there being ‘no counsel’ or only
‘ineffective’ counsel during the state collateral review proceeding; (3) the state
collateral review proceeding was the ‘initial’ review proceeding in respect to
the ‘ineffective-assistance-of-trial-counsel claim’; and (4) state law requires th
at an ‘ineffective assistance of trial counsel [claim] . . . be raised in an initial-
review collateral proceeding.’” Trevino v. Thaler, 569 U.S. 413, 423 (2013)
(quoting Martinez, 566 U.S. at 17).
      Thus, to successfully rely on Martinez, Ramey must first show that the
underlying Strickland claim “is substantial” or that it “has some merit,” Cantu
v. Davis, 665 F. App’x 384, 386 (5th Cir. 2016), and that state “habeas counsel
was ineffective” for failing to raise the underlying Strickland claim, Garza, 738
F.3d at 676. This court has “recognized that, at a minimum, counsel has the
duty to interview potential witnesses and to make an independent
investigation of the facts and circumstances of the case.” Nealy v. Cabana, 764
F.2d 1173, 1177 (5th Cir. 1985); see also Grant v. Lockett, 709 F.3d 224, 234 (3d
Cir. 2013) (“It is beyond the range of professionally reasonable judgment to
forego investigation of, and impeachment based upon, . . . evidence [of a
prosecution witness’s prior criminal history] absent some apparent strategic
reason that might explain or excuse counsel’s failure.”).
      Ramey points to evidence that his lead trial counsel, Dr. Joseph Willie,
was a practicing dentist who failed to interview key witnesses, conduct an
independent investigation, or pursue impeachment evidence. The second and
only other member of Ramey’s trial counsel team was James Evans, a lawyer
who joined Ramey’s defense team just before voir dire began. Evans was tasked
with cross examining key State witnesses, including the only eyewitness to the
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                                  No. 18-70034
crime, LeJames Norman. Evans conducted these examinations despite the fact
that he had “never spoke[n] to or investigated any of the witnesses who
testified against Mr. Ramey during the guilt phase of the trial” and spent less
than 120 hours preparing for the case outside of the courtroom. Trial counsel’s
lack of preparation was evident enough that the trial judge offered to assist
trial counsel and called several ex parte conferences to express concerns about
trial counsel’s preparation, noting at one point his concern that “the file hadn’t
reflected any sort of motions or pleadings indicating, for example, psychologists
that may have been hired or mitigation specialists, or investigators, so tell me
what you’re doing in that regard.”
      Nevertheless, to demonstrate that his Strickland claim “has some
merit,” Ramey must also show that he was “actual[ly] prejudiced” by trial
counsel’s allegedly ineffective assistance. Strickland v. Washington, 466 U.S.
668, 693–94 (1984). In this regard, again, we deem that “jurists could conclude
the issues presented are adequate to deserve encouragement to proceed
further,” Miller–El, 537 U.S. at 327, specifically as to whether Ramey can
demonstrate “actual prejudice” as a result of trial counsel’s ineffective
assistance. Strickland, 466 U.S. at 693–94. Proving “actual prejudice” requires
a prisoner to “establish not merely that the errors at his trial created a
possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional
dimensions.” Hernandez v. Stephens, 537 F. App’x 531, 542 (5th Cir. 2013).
“The result of a proceeding can be rendered unreliable, and hence the
proceeding itself unfair, even if the errors of counsel cannot be shown by a
preponderance of the evidence to have determined the outcome.” Strickland,
466 U.S. at 693–94; see also Adekeye v. Davis, 938 F.3d 678, 683 (5th Cir. 2019)
(prejudice requires showing that “it was ‘reasonably likely’ the jury would have


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                                No. 18-70034
reached a different result, not merely that it could have reached a different
result”).
      Most important would be trial counsel’s lack of preparation to impeach
and cross examine the witnesses who testified against Ramey. For example, if
trial counsel had investigated LeJames Norman—the only eyewitness to the
crime—they might have impeached him with his extensive criminal history,
pending escape charges, and the State’s alleged threats to prosecute Norman’s
mother leading up to his testimony against Ramey. Trial counsel might have
used this information to undermine the credibility of the State’s only witness
tying Ramey to the crime scene and pegging Ramey as the principal actor.
Likewise, trial counsel might have cross examined Gerald Manzanelez about
his apparent deal with the State in exchange for testimony against Ramey.
Manzanelez’s testimony was used to tie Ramey to the guns purportedly used
in the crime, yet he faced no cross-examination. In a prosecution without
physical evidence directly connecting Ramey to the crime or connecting the
recovered guns to the murders, what the jury heard to discredit the numerous
and highly incriminating government witnesses could be determinative.
Further briefing would assist us to assess if it is reasonably likely their
determination of Ramey’s guilt—or their conviction of Ramey as a principal
rather than a participant—would have been impacted.
      Ramey must also show that state “habeas counsel was ineffective” for
failing to raise the underlying Strickland claim. Garza, 738 F.3d at 676.
“[S]tate habeas counsel is . . . subject to the same Strickland requirement to
perform some minimum investigation prior to bringing the . . . state habeas
petition.” Trevino, 829 F.3d at 348. Because there is evidence suggesting that
Ramey’s state habeas counsel did not conduct an adequate investigation, it is
unclear whether state habeas counsel’s failure to identify Ramey’s Strickland


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                                 No. 18-70034
claim as a habeas issue was a strategic decision or evidence of deficient
performance.
      The remaining requirements of Martinez are easily met because the
state collateral review proceeding (here, the state habeas proceeding) was the
initial review of Ramey’s Strickland claim. The Supreme Court held in Trevino
that, although Texas does not require an ineffective assistance of trial counsel
claim to be raised during initial-review collateral proceedings, Texas procedure
“does not offer most defendants a meaningful opportunity to present a claim of
ineffective assistance of trial counsel on direct appeal.” Trevino, 569 U.S. at
428. For these reasons, “jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further” with respect to
whether the first prong of Martinez has been met.    Miller–El, 537 U.S. at 327.
      ii. Prejudice
      Relatedly, we deem the issue “adequate to deserve encouragement to
proceed further” with respect to whether Ramey can demonstrate “actual
prejudice” as a result of state habeas counsel’s failure to pursue his Strickland
claim. Id. at 415; Martinez, 566 U.S. at 13. Ramey must show that his state
habeas counsel’s failure to pursue Ramey’s underlying Strickland claim
prejudiced Ramey. Given the conclusion that reasonable jurists may debate
whether Ramey’s Strickland claim was “substantial”—and therefore whether
Ramey was prejudiced by the alleged ineffective assistance of counsel—it
necessarily follows that reasonable jurists would debate whether Ramey was
prejudiced by state habeas counsel’s failure to raise his Strickland claim in
state habeas proceedings. Therefore, Ramey satisfies the second part of the
Martinez inquiry.
      We grant Ramey’s application for a COA on the issue of whether Ramey’s
trial counsel provided ineffective assistance during pre-trial investigation and
during the guilt phase of Ramey’s trial.
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                                 No. 18-70034
   C. Strickland Mitigation Phase Claim
      Finally, Ramey contends that trial counsel provided ineffective
assistance during the mitigation and sentencing phase of Ramey’s trial. This
claim was presented by state habeas counsel to the Texas Court of Criminal
Appeals and rejected. Because the claim is not procedurally defaulted, the
reasoning from Martinez does not apply. The district court reviewed the state
court’s decision and held the “state habeas court’s decision was not contrary to,
or an unreasonable application of, federal law.” In doing so, the district court
followed the Supreme Court’s rule in Pinholster, 563 U.S. at 182, that federal
habeas review “focuses on what a state court knew and did.” See Lewis v.
Thaler, 701 F.3d 783, 791 (5th Cir. 2012) (“The import of Pinholster is clear:
because [the] claims have already been adjudicated on the merits, § 2254 limits
[federal] review to the record that was before the state court.”).
      Under Strickland, an ineffective assistance of trial counsel claim
requires deficient performance and prejudice. Strickland, 466 U.S. at 690–92.
Deficient performance is conduct that falls below an objective standard of
reasonableness. Id. at 688. Counsel must conduct a reasonable investigation
into a defendant’s background in order to make reasonable, strategic decisions
about how to present, or whether to present, the mitigation case. See Wiggins,
539 U.S. at 521–23. To show prejudice, Ramey must show “a reasonable
probability that . . . the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694. To determine prejudice in the
context of mitigation evidence, the reviewing court “reweigh[s] the evidence in
aggravation against the totality of available mitigating evidence.” Wiggins, 539
U.S. at 534. “Our limited review is whether reasonable jurists would debate
the district court’s decision that the Texas habeas court did not unreasonably
apply Strickland and Wiggins.” Davila, 650 Fed. App’x at 868. As the federal
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                                 No. 18-70034
district court pointed out, during state habeas review, Ramey complained
generally about trial counsel’s mitigation efforts without identifying
specifically what trial counsel should have done or what mitigating evidence
trial counsel should have utilized. Because Ramey did not show what more
trial counsel could have done at the mitigation phase, reasonable jurists would
not debate the district court’s decision to uphold the state court’s reasoning.
      As the district court noted, Ramey’s federal habeas counsel puts forth a
much more detailed analysis of what trial counsel could have—and should
have—done at the mitigation phase. But when claims have been presented to
and ruled on by the state court, we are precluded from considering evidence or
information that Ramey did not present there. Pinholster, 563 U.S. at 182
(noting that federal habeas review “focuses on what a state court knew and
did.”). We decline Ramey’s invitation to create a Martinez/Trevino-like
exception to Pinholster. We deny Ramey’s application for a COA on his
Strickland Mitigation Phase Claim.


                               V. CONCLUSION
      We GRANT Ramey’s application for a COA on his Batson Claim and
Strickland Guilt Phase Claim. We DENY Ramey’s application for a COA on
his Strickland Mitigation Phase Claim.




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