     Case: 11-70011    Document: 00512352969      Page: 1    Date Filed: 08/26/2013




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

                                                                    FILED
                                                                  August 26, 2013
                                  No. 11-70011                     Lyle W. Cayce
                                                                        Clerk


ROLANDO RUIZ,

                                             Petitioner - Appellant

v.

WILLIAM STEPHENS, 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:
      In 1995, a Texas jury sentenced Rolando Ruiz to death for the murder-for-
hire of Theresa Rodriguez. Ruiz challenged his capital sentence in habeas
proceedings under 28 U.S.C. § 2254, asserting a Wiggins claim for
constitutionally ineffective assistance of counsel. The district court denied relief
and Ruiz now seeks a certificate of appealability. We deny Ruiz’s request.
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                                        No. 11-70011

                                               I.
       In July 1992, Mark Rodriguez approached Rolando Ruiz at the home of a
mutual friend, asking Ruiz if he “wanted to make some money.”1 When Ruiz
responded affirmatively, Mark2 explained that he needed Ruiz to kill Theresa
Rodriguez, the wife of Mark’s brother, Michael Rodriguez. Mark invited Ruiz
into his brother Michael’s car, and Michael introduced himself. The trio then
drove to the Macaroni Grill in San Antonio where Michael wanted the murder
to take place. Michael instructed Ruiz to kill and rob Theresa as the couple
arrived at the restaurant on the night of Friday, July 10. After Ruiz accepted
the deal, Michael paid him $1000.00, promising another $1000.00 once Ruiz
completed the murder.
       In accordance with the plan, Ruiz went to the Macaroni Grill on Friday
night. However, after seeing a security guard, Ruiz called off the hit. On the
following day, Saturday, July 11, Ruiz called Michael, and the two agreed that
Ruiz would carry out the murder as Michael and Theresa left the Nakoma
Theatres that night. In accordance with Michael’s instructions, Ruiz went to the
Nakoma Theatres. However, after Michael and Theresa failed to show up at the
agreed-upon time, Ruiz left. He later called Michael, who explained that
“something [had come] up.” On Monday, July 13, Michael instructed Ruiz to
carry out the plan at the Nakoma Theatres on the following night, Tuesday, July
14. At 7:00 p.m. on Tuesday, Mark called Ruiz to confirm that Mark and
Michael were with Theresa at the Nakoma Theaters, and that the plan was on.


       1
          The facts of Ruiz’s crime are set forth in the district court’s original opinion denying
habeas relief as well as in Ruiz’s post-arrest affidavits. See Ruiz v. Dretke, No. SA-03-CA-303-
OG, 2005 WL 2146119 (W.D. Tex. Aug. 29, 2005); Statement of Facts, vol. 31, at 136–41, Ruiz
v. State, No. 72,072 (Tex. Crim. App. Feb. 25, 1998) [hereinafter Statement of Facts]; id., vol.
32, at 238–45.
       2
         Because many relevant parties in this case share common surnames, we generally
refer to parties other than Ruiz by their first names.

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                                     No. 11-70011

Ruiz drove to the theaters and watched as the two brothers and Theresa got into
Michael’s car. Ruiz trailed the trio in his truck as they drove home. After
Michael pulled into his driveway, Ruiz parked his truck at the neighboring
house. Ruiz walked up the driveway and pretended to ask for directions from
Mark. Ruiz then asked Mark: “do I do it?” Mark responded: “Yes.” Ruiz walked
up to the passenger side of Michael’s car. As Theresa stepped out of the car, she
looked up at Ruiz and smiled at him. Ruiz leveled a gun to her head and shot
her once, killing her. He then left the scene, got rid of his truck, played some
basketball, and went to bed. On Friday, July 17, Mark paid Ruiz the second
$1000.00 installment. Ruiz “spent it all on clothes and partying.”
      In the early hours of the morning on July 23, 1992, officers of the San
Antonio Police Department arrested Ruiz at an apartment in San Antonio.3
Thereafter, Ruiz gave police investigators three voluntary, written statements
in which he admitted the above-referenced facts relating to his killing of Theresa
Rodriguez.4 On October 21, 1992, a Bexar County grand jury indicted Ruiz on
a single count of capital murder.5 After Ruiz retracted his earlier admissions,
his case proceeded to a jury trial.6 At trial, Ruiz claimed that he had never
confessed to Theresa’s murder-for-hire but merely signed blank Miranda waiver
forms.7 Though Ruiz admitted that he killed Theresa, he claimed that he had
done so unintentionally after ingesting a large quantity of narcotics.8 The

      3
        Ruiz, No. SA-03-CA-303-OG, 2005 WL 2146119, at *1 & n.1; Statement of Facts,
supra note 1, vol. 31, at 79–85.
      4
        Ruiz, No. SA-03-CA-303-OG, 2005 WL 2146119, at *1–3; see also Statement of Facts,
supra note 1, vol. 31, at 136–41; id., vol. 32, at 238–45.
      5
          Ruiz, No. SA-03-CA-303-OG, 2005 WL 2146119, at *3.
      6
          Id.
      7
          Id.
      8
          Id.

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                                         No. 11-70011

prosecution responded by presenting testimony from police officers and civilian
witnesses who confirmed that all three of Ruiz’s written statements were
knowing and voluntary.9 It also presented a variety of circumstantial evidence
to prove that Ruiz had killed Theresa pursuant to an agreement with the
Rodriguez brothers.10
      On January 18, 1995, after deliberating for slightly over two hours, the
jury returned its verdict, finding Ruiz guilty of capital murder.11 On the same
date, the punishment phase of Ruiz’s trial began.12 Under the applicable Texas
capital sentencing statute, the jury had to make two unanimous determinations
to sentence Ruiz to death. First, it had to determine beyond a reasonable doubt
that Ruiz posed a continuing danger to society.13 Second, it had to determine
that taking into consideration all of the evidence, including the circumstances
of Ruiz’s offense, his character and background, and his personal moral
culpability, there were insufficient mitigating circumstances to warrant a
sentence of life imprisonment rather than a death sentence.14
      The prosecution presented overwhelming evidence of Ruiz’s character for
violence. Three close friends of Ruiz testified that Ruiz liked to fight and
sometimes carried a gun.15 A police officer and an eyewitness testified about an
incident on June 8, 1992, in which Ruiz pulled his then-girlfriend, Roxanne


      9
          Id. at *4.
      10
           Id. at *3–4.
      11
           Id. at *4.
      12
           Id.
      13
           Id. at *6; see also Tex. Code Crim. Proc. art. 37.071 § 2(b)(1).
      14
         Ruiz, No. SA-03-CA-303-OG, 2005 WL 2146119, at *6; see also Tex. Code Crim. Proc.
art. 37.071 § 2(e).
      15
           Ruiz, No. SA-03-CA-303-OG, 2005 WL 2146119, at *5.

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                                          No. 11-70011

Conway, out of her car, viciously beat her, stole the car, and proceeded to lead
police on a brief chase before finally surrendering the vehicle.16 Numerous
officers and guards from the Bexar County Adult Detention Center testified that
while Ruiz was awaiting trial, he had joined the violent Texas Syndicate prison
gang.17 They also testified that Ruiz and other gang members had viciously
attacked prison guards and other inmates on at least three occasions in 1992 and
1993, with each incident resulting in serious injuries.18
       The defense’s sentencing stage strategy apparently focused on disproving
the prosecution’s case for Ruiz’s violent character. Ruiz’s friend testified that
Ruiz was a nice person.19 Ruiz’s former basketball coach and teacher described
Ruiz as an excellent, polite student.20 Ruiz’s uncle and cousin testified that they
had never known Ruiz to be violent, that they were unaware of his drug
problems, and that they did not believe he deserved to die.21 Ruiz’s mother
testified that Ruiz had a “normal” childhood, had displayed no behavioral
problems as a child, had expressed remorse for his crime, and was still a good
person inside who deserved to live.22 She suggested that Ruiz began having
problems at age 17, when he started abusing drugs.23 Finally, Roxanne Conway,
Ruiz’s former girlfriend, testified that Ruiz was always “very sweet” and “caring”


       16
            Id.
       17
            Id.
       18
            Id.
       19
            Id. at *6; Statement of Facts, supra note 1, vol. 35, at 978–82.
       20
          Ruiz, No. SA-03-CA-303-OG, 2005 WL 2146119, at *6; Statement of Facts, supra note
1, vol. 35, at 1019–35.
       21
            Ruiz, No. SA-03-CA-303-OG, 2005 WL 2146119, at *6.
       22
            Id.
       23
            Id.

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                                        No. 11-70011

to her, that he had apologized for assaulting her, and that she had forgiven him
because she believed that his attack was due to his drug problem.24 On cross-
examination, however, Conway admitted that at the time of the assault, she felt
as though Ruiz was trying to kill her.25 Moreover, Conway acknowledged that
she had suffered severe facial and dental injuries as a consequence of Ruiz’s
attack, which required stitches and multiple dental surgeries.26
      In its closing statement to the sentencing jury, the prosecution observed
that the defense’s own witness, Roxanne Conway, underscored Ruiz’s danger to
society.27       The prosecution pointed out that the defense had proffered “no
evidence . . . whatsoever of anything mitigating,” noting that “there is nothing
about [Ruiz’s] background, his upbringing, his education, nothing about his
personal moral culpability that diminishes in any way the fact that he deserves
to pay [the death] penalty.”28 On January 20, 1995, after deliberating for slightly
over 90 minutes, the jury found for the prosecution on both special issues,
sentencing Ruiz to death.29


                                              II.
      On February 18, 2004, Ruiz filed a federal habeas petition claiming that
his trial counsel, Donald Mach, had failed to investigate and present mitigating
evidence of Ruiz’s abusive childhood.30 The district court reluctantly rejected

      24
           Id.
      25
           Id.
      26
           Id.
      27
           Statement of Facts, supra note 1, vol. 36, at 1184.
      28
           Id. at 1186.
      29
           Ruiz, No. SA-03-CA-303-OG, 2005 WL 2146119, at *2.
      30
           Id. at *7.

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                                       No. 11-70011

Ruiz’s ineffective assistance claim as procedurally defaulted, noting that Ruiz’s
state habeas counsel had presented the Texas Court of Criminal Appeals
(“CCA”) with a set of “boilerplate, frivolous” arguments that did not include an
ineffective assistance claim.31         The court observed that Ruiz’s claim was
“potentially meritorious” and characterized his state habeas counsel’s
representation as “appallingly inept” and “egregiously deficient.”32 Nevertheless,
the court rejected Ruiz’s request for a stay while Ruiz returned to the CCA to
raise his ostensibly defaulted claim, observing that “such an action would be an
exercise in futility.”33
      Notwithstanding the district court’s admonition, Ruiz filed a second
petition for state habeas relief raising his ineffective assistance claim, along with
affidavits and other supporting documentation.34 The CCA rejected Ruiz’s
petition in a summary order.35 Ruiz then returned to the federal district court
on a Rule 60(b) motion for relief from judgment, arguing that the CCA’s
dismissal was an on-the-merits rejection of his ineffective assistance claim that
undermined the district court’s earlier judgment that the claim was procedurally
defaulted.36 The district court rejected Ruiz’s motion, defending its earlier
opinion and finding that the CCA’s summary dismissal rested on state




      31
           Ruiz v. Dretke, No. 03-CV-303, 2005 WL 2620193, at *2 (W.D. Tex. Aug., 29, 2005).
      32
           Id.
      33
           Ruiz v. Dretke, No. 03-CV-303, 2005 WL 2402669, at *2 (W.D. Tex. Sept. 15, 2005).
      34
       See Subsequent Application for Post-Conviction Relief, Ex Parte Rolando Ruiz, No.
WR-27,328-03 (Tex. Crim. App. July 2, 2007).
      35
           See Ex Parte Rolando Ruiz, No. WR-27,328-03 (Tex. Crim. App. July 6, 2007).
      36
         Ruiz v. Quarterman, No. SA-03-CA-303-OG, 2007 WL 2437401, at *3 (W.D. Tex. July
10, 2007).

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                                        No. 11-70011

procedural grounds.37          Ruiz appealed to this Court, which reversed and
remanded to the district court to consider Ruiz’s ineffective assistance claim on
the merits.38 As we explained in our remand opinion, the CCA’s summary
dismissal can reasonably be read as an on-the-merits rejection of Ruiz’s
ineffective assistance claim.39 Under Michigan v. Long, which establishes that
a state court dismissal of a federal claim is “on the merits” if “the adequacy and
independence of any possible state law ground is not clear from the face of the
opinion,” the CCA’s summary dismissal thus pulled the rug out from under the
district court’s earlier judgment that Ruiz’s claim was procedurally defaulted.40
       On remand, Ruiz argued that his sentence required reversal under
Wiggins v. Smith, claiming that Mach’s failure to investigate and present
evidence of Ruiz’s “horrific” childhood amounted to deficient representation that
prejudiced Ruiz at the sentencing stage of his trial.41                 The district court,
reviewing Ruiz’s ineffective assistance claim de novo, agreed that Mach’s trial
performance was deficient.42 The court observed that Mach’s own forensic
psychologist, Dr. Harry Munsinger, had produced a report concluding that Ruiz
suffered physical abuse as a child.43 The court rejected Mach’s testimony that


       37
            Id. at *3–4.
       38
            Ruiz v. Quarterman, 504 F.3d 523, 532 (5th Cir. 2007).
       39
            Id. at 527–28.
       40
          Id. at 527 (quoting Michigan v. Long, 463 U.S. 1032, 1040–41 (1983)); Coleman v.
Thompson, 501 U.S. 722, 735 (1991) (“In habeas, if the decision of the last state court to which
the petitioner presented his federal claims appeared to rest primarily on resolution of those
claims, or to be interwoven with those claims, and did not clearly and expressly rely on an
independent and adequate state ground, a federal court may address the petition.”).
       41
            Ruiz v. Thaler, 783 F. Supp. 2d 905, 910–11, 936 (W.D. Tex. 2011).
       42
            Id. at 913–17, 936–40.
       43
            Id. at 938.

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he saw “nothing mitigating” in Munsinger’s report, observing that “[a]ny
reasonably proficient attorney confronted with [similar] conclusions . . . should
have reasonably perceived the potential for discovering mitigating evidence
through an investigation into petitioner’s background that went beyond merely
interviewing the petitioner and his mother.”44
       However, the court concluded that Ruiz had not suffered material
prejudice from Mach’s deficient performance. First, the court observed, Ruiz’s
new habeas evidence “consisted almost exclusively of hearsay testimony” in
which “petitioner’s relatives merely repeated what petitioner had told them as
a child, i.e., that he had been beaten by his step-father, forced by his mother’s
boyfriend to face the wall or stay in the bathroom, or there was no food at his
home.”45 Second, the court reasoned, though the new mitigation evidence
suggested that Ruiz’s childhood was problematic, the heinous nature of Ruiz’s
offense, coupled with the prosecution’s overwhelming evidence of Ruiz’s violent
character, ensured that “there is not even a remote possibility” that the new
mitigating evidence would have altered the sentencing outcome.46




       44
            Id. at 938–39.
       45
            Id. at 918, 956; see also id. at 920, 936, 942, 945.
       46
          Id. at 946–47. In his § 2254 petition, Ruiz also claimed that Mach failed to
adequately investigate and present evidence linking Ruiz’s crime to substance abuse. To
support this claim, Ruiz introduced new testimony from Dr. Seth Silverman, a licensed
psychiatrist. Dr. Silverman testified that Ruiz had murdered Ms. Rodriguez as part of an
isolated bout of aggression triggered by cocaine abuse. The district court rejected Dr.
Silverman’s testimony, observing that Ruiz’s aunt had previously testified that Ruiz had
ingested narcotics specifically to “get the courage” to commit the murder. Ruiz, 783 F. Supp.
2d at 910–11, 924.

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                                          No. 11-70011
                                              III.
       Ruiz comes before this Court seeking a certificate of appealability on his
Wiggins claim.47 Ruiz argues that the district court erred in rejecting swaths of
his new evidence as hearsay, urging that if the court had properly considered all
of the new evidence, it would have found prejudice.48                      The government
disagrees.49 It also claims that the district court erred in reviewing Ruiz’s
Wiggins claim de novo, observing that the CCA’s summary dismissal of Ruiz’s
claim constituted an on-the-merits disposition that triggered the deferential
§ 2254(d) standard of review.50
       Before a § 2254 petitioner can appeal, he must obtain a certificate of
appealability (“COA”).51 To obtain a COA, a petitioner must make “a substantial
showing of the denial of a constitutional right.”52 Where, as here, “a district
court has rejected the 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.”53 “The question of
whether a COA should issue is a threshold inquiry that requires an overview of




       47
          Application for a Certificate of Appealability at 15 n.4, Ruiz v. Thaler, No. 11-70011
(5th Cir. Aug. 4, 2011) (“On appeal, Mr. Ruiz seeks relief only on the claim, under Wiggins v.
Smith, that Mr. Ruiz was prejudiced by the failure to conduct a reasonable mitigation
investigation.”).
       48
            Id. at 33–34, 37–52.
       49
         See Respondent-Appellee’s Opposition to Application for Certificate of Appealability
at 29–41, Ruiz v. Thaler, No. 11-70011 (5th Cir. Nov. 3, 2011).
       50
            Id. at 18–21.
       51
            See 28 U.S.C. § 2253(c)(1)(A).
       52
            Id. § 2253(c)(2).
       53
            Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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the claims in the habeas petition and a general assessment of their merits.”54 A
full consideration of the merits is neither required nor permitted.55 In death
penalty cases, “any doubts as to whether a COA should issue must be resolved
in the petitioner’s favor.”56
       In determining whether to grant Ruiz’s request for a COA on his Wiggins
claim, we must bear in mind the standard of review under which the district
court should have scrutinized that claim.57 Hence, we begin by resolving the
government’s assertion that the district court should have applied the
deferential § 2254(d) standard. Section 2254(d) applies to all claims that have
been adjudicated “on the merits” by a state court.58 In Harrington v. Richter, the
Supreme Court clarified that a state court’s summary dismissal of a federal
claim qualifies as an “on the merits” disposition for purposes of § 2254(d) unless
the dismissal clearly indicates that it rests on state-law grounds.59 As we
explained at length in our opinion remanding this case to the district court, the
CCA’s summary dismissal of Ruiz’s Wiggins claim can reasonably be read as an



       54
         Kunkle v. Dretke, 352 F.3d 980, 985 (5th Cir. 2003) (quoting Miller-El v. Cockrell, 537
U.S. 322, 336 (2003)) (internal quotation marks omitted).
       55
            Id.
       56
        Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (quoting Hernandez v. Johnson,
213 F.3d 243, 248 (5th Cir. 2000)) (internal quotation marks and alterations omitted).
       57
            See Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005).
       58
            28 U.S.C. § 2254(d).
       59
         Harrington v. Richter, — U.S. — , 131 S.Ct. 770, 784–85 (2011) (“When a federal
claim has been presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits [for purposes of § 2254(d)]
in the absence of any indication or state-law procedural principles to the contrary.”) (citing
Harris v. Reed, 489 U.S. 255, 265 (1989)); Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013)
(“When a state court rejects a federal claim without expressly addressing that claim, a federal
habeas court must presume that the federal claim was adjudicated on the merits — but that
presumption can in some limited circumstances be rebutted.”).

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                                         No. 11-70011
on-the-merits disposition.60 Under the Richter presumption, § 2254(d) thus
applies to Ruiz’s claim.61
       Because § 2254(d) applies, the question presented by Ruiz’s application for
a COA is not whether reasonable jurists could debate the correctness of the
CCA’s summary dismissal of his Wiggins claim, but whether it is debatable that
the CCA’s order “was contrary to, or involved an unreasonable application of
clearly established Federal law.”62 “It bears repeating that even a strong case for
relief does not mean that a state court’s contrary conclusion was unreasonable.”63


                                            IV.
       To prove that his sentence requires reversal under Wiggins, Ruiz must
show that his trial counsel’s failure to investigate and present mitigating
evidence prejudiced the defense.64 To show prejudice, Ruiz must demonstrate


       60
            Ruiz v. Quarterman, 504 F.3d 523, 527–28 (5th Cir. 2007).
       61
         In concluding that § 2254(d) did not apply, the district court reasoned that the CCA’s
summary dismissal of Ruiz’s ineffective assistance claim provided “no . . . state court
judgment, much less any discernable state court findings of fact or conclusions of law, to which
this Court could give deference under the AEDPA.” Ruiz v. Thaler, 783 F. Supp. 2d 905, 916
(W.D. Tex. 2011). But Richter emphatically rejected this line of reasoning:
       As every Court of Appeals to consider the issue has recognized, determining
       whether a state court’s decision resulted from an unreasonable legal or factual
       conclusion does not require that there be an opinion from the state court
       explaining the state court’s reasoning. And as this Court has observed, a state
       court need not cite or even be aware of our cases under § 2254(d). Where a state
       court’s decision is unaccompanied by an explanation, the habeas petitioner’s
       burden still must be met by showing there was no reasonable basis for the state
       court to deny relief.
Harrington, 131 S.Ct. at 784.
       62
          See 28 U.S.C. § 2254(d); Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir. 2012); see also
Williams v. Taylor, 529 U.S. 362, 410–11 (2000) (“An unreasonable application of federal law
is different from an incorrect application of federal law.”).
       63
            Richter, 131 S.Ct. at 786.
       64
            Wiggins v. Smith, 539 U.S. 510, 534 (2003).

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                                         No. 11-70011
a “reasonable probability that, but for counsel’s unprofessional errors, the result
of the [sentencing] proceeding would have been different.”65 In determining
whether Ruiz has made this showing, “we compare the evidence actually
presented at sentencing with any additional mitigating evidence presented in
the habeas proceeding.”66 Specifically, we ask whether under the applicable
state capital sentencing statute, “the additional mitigating evidence [is] so
compelling that there [is] a reasonable probability that at least one juror could
have determined that because of the defendant’s reduced culpability, death [is]
not an appropriate sentence.”67 We agree with Ruiz that in assessing prejudice,
“we need not . . . make the state-law evidentiary findings that would have been
at issue at sentencing.”68              Consequently, we conduct our analysis by
“evaluat[ing] the totality of the evidence — both that adduced at trial, and the
evidence adduced in the habeas proceedings.”69
       We begin our inquiry by reviewing the evidence Ruiz adduced in his
habeas proceedings.70          The new evidence paints a bleak picture of Ruiz’s


       65
            Id.
       66
          Kunkle v. Dretke, 352 F.3d 980, 991 (5th Cir. 2003) (internal quotation marks and
citation omitted).
       67
            Id.; see also Blanton v. Quarterman, 543 F.3d 230, 236 (5th Cir. 2008).
       68
           Wiggins, 539 U.S. at 536; see also Sears v. Upton, 130 S.Ct. 3259, 3263 n.6 (“[W]e
have . . . recognized that reliable hearsay evidence that is relevant to a capital defendant’s
mitigation defense should not be excluded by rote application of a state hearsay rule); Green
v. Georgia, 442 U.S. 95, 97 (1979) (“Regardless of whether the proffered testimony comes
within Georgia’s hearsay rule, under the facts of this case its exclusion constituted a violation
of the Due Process Clause . . . . The excluded testimony was highly relevant to a critical issue
in the punishment phase of the trial.”).
       69
            Wiggins, 539 U.S. at 536 (internal quotation marks and citation omitted).
       70
         The new testimony Ruiz introduced at his federal habeas hearing is presumably
irrelevant to the § 2254(d)(1) inquiry. See Cullen v. Pinholster, — U.S. — , 131 S.Ct. 1388
(2011). However, the government does not raise this argument in its brief, and the federal
habeas testimony is largely cumulative of the affidavits Ruiz submitted with his second state

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                                        No. 11-70011
childhood. When Ruiz was a toddler, his mother Maria Rangel often left Ruiz
at his grandmother’s apartment for weeks to “live on . . . the street” and “hav[e]
affairs with different men.”71 On at least one occasion, a man came to spend the
night with Maria and instructed Ruiz to face the wall or stay in the bathroom.72
Maria “hit [Ruiz] a lot,”73 and Ruiz once complained to family members that he
sometimes went hungry.74 When Ruiz was four, his aunt Griselda Gutierrez
observed that he was “very skinny from not eating well” and “ha[d] lice in his
hair.”75 When Ruiz was six, Maria attempted to commit suicide in the bathroom
of her apartment, slashing her wrists.76 According to Ruiz’s aunt Rosa, Ruiz was
present during his mother’ suicide attempt and “knew what she had tried to
do.”77 Rosa took care of Ruiz while Maria recovered in the hospital.78


habeas petition. See Subsequent Application for Post-Conviction Relief, supra note 34,
Exhibits 5–7, 9. As we conclude that Ruiz is not entitled to a COA on either the state habeas
record or the supplemented federal habeas record, we see no need to deviate from the parties’
briefing by reaching the Cullen issue.
       71
          Subsequent Application for Post-Conviction Relief, supra note 34, Exhibit 6, at 2
(Affidavit of Dorothea Sanchez).
       72
         Evidentiary Hearing Before the Honorable Orlando L. Garcia at 114–15 , Ruiz v.
Thaler, No. SA-03-CV-303-0LG (W.D. Tex. Nov. 2, 2010) (Testimony of Griselda Gutierrez)
[hereinafter Evidentiary Hearing].
       73
          Subsequent Application for Post-Conviction Relief, supra note 34, Exhibit 7, at 4
(Affidavit of Rosa Ruiz); Evidentiary Hearing, supra note 72, at 170 (Testimony of Rosa Ruiz);
       74
          Subsequent Application for Post-Conviction Relief, supra note 34, Exhibit 5, at 2
(Affidavit of Griselda Gutierrez); Evidentiary Hearing, supra note 72, at 113, 115 (Testimony
of Griselda Gutierrez).
       75
          Subsequent Application for Post-Conviction Relief, supra note 34, Exhibit 5, at 2
(Affidavit of Griselda Gutierrez).
       76
         Evidentiary Hearing, supra note 72, at 171 (Testimony of Rosa Ruiz); Subsequent
Application for Post-Conviction Relief, Exhibit 7, at 3 (Affidavit of Rosa Ruiz).
       77
          Subsequent Application for Post-Conviction Relief, supra note 34, Exhibit 7, at 3
(Affidavit of Rosa Ruiz).
       78
            Evidentiary Hearing, supra note 72, at 172–73 (Testimony of Rosa Ruiz).

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                                         No. 11-70011
       When Ruiz was eleven, Maria moved in with Paul Rangel, whom she later
married. According to Ruiz’s grandmother, Paul “drank excessively and he used
cocaine and marijuana.”79 Ruiz’s cousin testified that Paul would beat Maria so
badly that “she would have bruises on her arms and her face would be beat up
and stuff.”80 Ruiz “didn’t get along with Paul,”81 and told his aunt Rosa that Paul
would hit him.82 However, Rosa never saw bruises on Ruiz.83 Shortly after
moving in with Paul, Maria placed Ruiz into a homeless shelter for an
unspecified period of time.84 At Rosa’s insistence, Maria took Ruiz back.85
       Ruiz spent much of his adolescence living with his extended family. When
Ruiz was ten or eleven, Maria sent him to live with his aunt Rosa and her
husband David for about a year.86 When Ruiz was a teenager, Maria sometimes
“kicked him out”87 or “didn’t open the door for [him].”88 On these occasions, Ruiz




       79
          Subsequent Application for Post-Conviction Relief, supra note 34, Exhibit 6, at 3
(Affidavit of Dorothea Sanchez).
       80
            Evidentiary Hearing, supra note 72, at 289 (Testimony of Mark Molina).
       81
          Subsequent Application for Post-Conviction Relief, supra note 34, Exhibit 6, at 3
(Affidavit of Dorothea Sanchez).
       82
          Subsequent Application for Post-Conviction Relief, supra note 34, Exhibit 7, at 4
(Affidavit of Rosa Ruiz); Evidentiary Hearing, supra note 72, at 180–81 (Testimony of Rosa
Ruiz).
       83
            Evidentiary Hearing, supra note 72, at 181 (Testimony of Rosa Ruiz).
       84
         Id. at 181–82; see also Subsequent Application for Post-Conviction Relief, supra note
34, Exhibit 7, at 3 (Affidavit of Rosa Ruiz).
       85
            Evidentiary Hearing, supra note 72, at 181–82 (Testimony of Rosa Ruiz).
       86
            Id. at 201–02 (Testimony of David Ruiz).
       87
            Id. at 289 (Testimony of Mark Molina).
       88
            Id. at 183 (Testimony of Rosa Ruiz).

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                                        No. 11-70011
would stay with Rosa and David, his grandmother, or other relatives.89 When
Ruiz was about eight or nine, Rosa’s neighbor twice found him sleeping on Rosa’s
exposed porch in the early hours of the morning.90 When Ruiz was fourteen or
fifteen, his mother Maria made a second suicide attempt, this time by ingesting
pills.91
       By all accounts, Ruiz’s grandmother, aunts, and uncles treated Ruiz like
one of their own sons and daughters. Ruiz’s grandmother offered to adopt him,
although Maria rejected the offer.92 Ruiz’s uncle David testified that he loved
Ruiz “a lot,” that he was “pushy” with Ruiz just like with his own children, and
that he made sure Ruiz went to school “every day.”93 Ruiz’s cousin testified that
she first met Ruiz “at a barbecue or at a family event,” that Ruiz was “like [her]
brother,” and that her mother Rosa and father David treated Ruiz “very well”
whenever Ruiz lived with them.94 Another of Ruiz’s cousins testified that his
mother Rosa “was always concerned about [Ruiz,] like where is he at, how is he
doing.”95 According to Ruiz’s cousin, Rosa would reassure Ruiz that she could
“take [him] in” if he had trouble at home, asking Ruiz to “[c]ome stay with us
and be here with us.”96


       89
         Subsequent Application for Post-Conviction Relief, supra note 34, Exhibit 6, at 3–4
(Affidavit of Dorothea Sanchez); Evidentiary Hearing, supra note 72, at 201, 205, 225–27
(Testimony of Ramon Ruiz and David Ruiz).
       90
            Id. at 151, 153–54 (Testimony of Yolanda Mendoza).
       91
         Id. at 174 (Testimony of Rosa Ruiz); see also Subsequent Application for
Post-Conviction Relief, supra note 34, Exhibit 7, at 3 (Affidavit of Rosa Ruiz)
       92
            Id. at 115–116 (Testimony of Griselda Gutierrez).
       93
            Id. at 204–05, 210 (Testimony of David Ruiz).
       94
            Id. at 262, 264–65, 268 (Testimony of Angela Ruiz).
       95
            Id. at 283 (Testimony of Mark Molina).
       96
            Id. at 283–84.

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                                           No. 11-70011
         Having examined the totality of the record, we make a threshold inquiry
into the likelihood that Ruiz’s sentencing outcome would have been different in
light of the new mitigating evidence. Under Article 37.071 of the Texas Code of
Criminal Procedure, Ruiz’s sentencing jury could only impose a death sentence
if it unanimously answered the mitigation issue set forth in § 2(e) in the
negative.97 Section 2(e) required Ruiz’s sentencing jurors to determine whether
“taking into consideration all of the evidence, including the circumstances of the
offense, the defendant’s character and background, and the personal moral
culpability of the defendant, there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment without parole
rather than a death sentence be imposed.”98
         In this case, the evidence bearing on Ruiz’s character and the nature of his
crime was unlikely to induce his jurors to vote for leniency. Ruiz shot Theresa
Rodriguez in cold blood for a relatively small sum of cash, which he spent on
clothes and partying.             While awaiting trial, Ruiz joined the violent Texas
Syndicate prison gang and participated in at least three vicious attacks on
prison guards and inmates, all within the span of less than a year.99 At trial,
Ruiz showed no sincere remorse for killing Ms. Rodriguez, retracting virtually
every admission he had made in his post-arrest confessions.100 Ruiz’s own
character witness, Roxanne Conway, conceded that Ruiz had beaten her so
severely that she feared for her life and had to undergo multiple surgeries.

         97
              See Tex. Code Crim. Proc. art. 37.071 § 2(e).
         98
          Id. The jury also had to find, unanimously and beyond a reasonable doubt, that Ruiz
“would commit criminal acts of violence that would constitute a continuing threat to society.”
See id. at § 2(b)(1). As Ruiz’s theory of prejudice is based entirely on the mitigation issue in
§ 2(e), we do not address the future dangerousness issue in our prejudice analysis.
         99
              Ruiz v. Dretke, No. SA-03-CA-303-OG, 2005 WL 2146119, at *5 (W.D. Tex. Aug. 29,
2005).
         100
               See id. at *3.

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                                        No. 11-70011
       Against this evidence of Ruiz’s brutal crime and violent and remorseless
character,101 Ruiz’s sentencing jury would have had to weigh the mitigating
value of the new habeas evidence bearing on Ruiz’s childhood and adolescence.
This evidence suggests that Ruiz endured hardship and deprivation at the hands
of a self-absorbed mother and an abusive stepfather. However, it also indicates
that Ruiz could rely on his extended family — especially his aunt Rosa and uncle
David — for shelter, care, and affection. Ruiz’s new evidence bears scant
resemblance to that adduced in Wiggins and Williams v. Taylor, cases in which
the Supreme Court found prejudice. In Wiggins, the petitioner furnished
evidence that he suffered “physical torment, sexual molestation, and repeated
rape” throughout his childhood and adolescence in foster care.102 In Williams,
the petitioner presented evidence that he was borderline mentally retarded, that
his father severely and repeatedly beat him, that his parents were imprisoned
for criminal neglect, and that he shuffled through abusive foster homes while his
parents were incarcerated.103 After a threshold inquiry into the record, we
believe there is virtually no chance — let alone a “reasonable possibility” — that
Ruiz’s new habeas evidence would have affected the sentencing outcome.104

       101
            Ruiz claims that this aggravating evidence is relevant only to the future
dangerousness issue under § 2(b)(1), not to the separate mitigation issue under § 2(e). See
Application for a Certificate of Appealability, supra note 47, at 17, 21, 34–37. We disagree.
Aside from the fact that § 2(e) specifically instructs the sentencing jury to consider “all of the
evidence, including the circumstances of the offense [and] the defendant’s character,” the
Texas Court of Criminal Appeals has clarified that while the mitigation issue does not require
jurors to consider aggravating circumstances, it permits them to do so. Mosely v. State, 983
S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998).
       102
             Wiggins v. Smith, 539 U.S. 510, 535 (2003).
       103
             Williams v. Taylor, 529 U.S. 362, 370–71, 395–99 (2000).
       104
         Cf. Wiggins, 539 U.S. at 534. Ruiz also suggests that his substance abuse at the
time of the murder reduces his moral culpability. See Application for a Certificate of
Appealability, supra note 47, at 14–15, 24, 32. Specifically, Ruiz points to Dr. Seth
Silverman’s testimony at the federal habeas hearing. See id. at 49 & n.11. Dr. Silverman
suggested that Ruiz murdered Ms. Rodriguez as part of an episode of aggression triggered by

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                                         No. 11-70011
       Our recent decision in Miniel v. Cockrell is instructive. In Miniel, we
denied the petitioner’s request for a COA on his Wiggins claim, concluding that
he could not show prejudice.105 Like Ruiz, Miniel presented new evidence of his
troubled childhood at his habeas hearing:
       Miniel’s biological mother, Carmen Cantu, abandoned him when he
       was only a few days old. He was adopted by his aunt and uncle,
       Jesse and Manuel Miniel. He grew up in a house with six adoptive
       siblings in Rock Falls, Illinois, and his parents often fought over his
       father’s drinking and philandering. They also fought over Manuel’s
       treatment of Miniel. Manuel frequently beat Miniel from the time
       he was very young and some of these beatings were severe. In
       addition to the physical abuse, the children suffered from neglect.
       Jesse worked at a factory at night, leaving Manuel alone with the
       children. Manuel admits that he was an alcoholic and that he would
       often go to bars when Jesse was working. He would sometimes
       leave his children alone in the car outside a bar for hours at a time,
       even during the harsh Illinois winters. Other times, he would leave
       them alone in the house.106
While we expressed little doubt that Miniel had suffered a rough childhood, we
noted that his troubles were “mild when compared to the evidence presented by
the petitioners in Wiggins v. Smith and Williams v. Taylor.”107 We concluded
that “[w]hen we compare Miniel’s violent history including [his] cruel [murder]
with the potential testimony of his family members that centered on his
childhood abuse and substance abuse, we are satisfied there is no reasonable
probability that the jury would have answered the special issues in a different


cocaine abuse. Evidentiary Hearing, supra note 72, at 375–95 (Testimony of Dr. Seth
Silverman). However, as the district court observed, Ruiz’s aunt Griselda Gutierrez had
previously testified that Ruiz ingested cocaine specifically to “give him the courage” to commit
the murder. See id. at 119, 121 (Testimony of Griselda Gutierrez). Even assuming that Dr.
Silverman’s new testimony is relevant to our § 2254(d)(1) inquiry, we agree with the district
court that Dr. Silverman’s findings have no mitigating value.
       105
             Miniel v. Cockrell, 339 F.3d 331, 346–48 (5th Cir. 2003).
       106
             Id. at 345.
       107
             Id. at 345, 348 & n.10.

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                                       No. 11-70011
manner.”108 We reach the same conclusion in the case at bar.109 Because there
is no debatable issue on prejudice, we need not reach the question of whether
Ruiz’s trial counsel’s failure to introduce the new habeas evidence at trial
amounted to deficient representation.110


                                           V.
       The motion for a certificate of appealability is DENIED.




       108
             Id. at 347.
       109
          Indeed, Miniel’s case for prejudice is arguably more compelling than Ruiz’s. At his
habeas hearing, Miniel introduced an expert report indicating that his impulse control was
compromised by “mild to moderate brain damage.” Id. at 345. Moreover, at sentencing, three
witnesses testified that Miniel had genuinely reformed in prison, turning to religion. See id.
at 337–38; Memorandum and Order at 5–6, Miniel v. Cockrell, No. H-00-435 (S.D. Tex. Oct.
29, 2001). In this case, there is no evidence that Ruiz suffered from diminished mental
capacity (other than as resulted from his voluntary drug use). Moreover, Ruiz continued to
demonstrate his penchant for violence while awaiting trial in prison.
       110
           Cf. Strickland v. Washington, 466 U.S. 668, 697 (1984) (“[T]here is no reason for a
court deciding an ineffective assistance claim to . . . address both components of the inquiry
if the defendant makes an insufficient showing on one.”).

                                             20
