     Case: 15-70020      Document: 00513369247         Page: 1    Date Filed: 02/04/2016




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

                                      No. 15-70020                                FILED
                                                                           February 4, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
JOHN H. RAMIREZ,

              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 Southern District of Texas
                              USDC No. 2:12-CV-410


Before KING, CLEMENT, and OWEN, Circuit Judges.
KING, Circuit Judge:*
       Petitioner–Appellant John Ramirez was convicted of capital murder in
Texas state court and sentenced to death. After his conviction and sentence
were affirmed on direct review, Ramirez unsuccessfully pursued state habeas
relief asserting a number of constitutional claims, including violations of his
due process rights, right to a public trial, and ineffective assistance of counsel.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-70020    Document: 00513369247     Page: 2   Date Filed: 02/04/2016



                                 No. 15-70020
State habeas courts denied him relief, finding that his claims were either
procedurally defaulted or without merit. Ramirez filed for federal habeas relief
thereafter on the same claims. The district court denied Ramirez relief and
denied his application for a Certificate of Appealability (COA). Ramirez now
seeks a COA from this court. Because we find that reasonable jurists would
not debate the district court’s decision, we DENY Ramirez’s application for a
COA.
            I. FACTUAL AND PROCEDURAL BACKGROUND
       Petitioner–Appellant John Ramirez’s petition for relief stems from his
2008 trial and sentencing for capital murder. We recount the details of his
crime, conviction, and trial to the extent that they are pertinent to Ramirez’s
present application for a COA. On the night of July 19, 2004, Pablo Castro, a
clerk who worked the night shift at a Times Market convenience store in
Corpus Christi, Texas, exited the store to empty the trash around closing time.
As Castro entered the parking lot of the convenience store, he was confronted
by Ramirez and Angela Rodriguez. As recounted later by Christina Chavez—
Ramirez’s confederate that night and later co-defendant—Ramirez, Rodriguez,
and she had spent the previous few days using drugs and agreed to rob
someone in order to obtain money for more drugs. The group drove around
Corpus Christi looking for someone to rob until they pulled into the Times
Market parking lot where they found Castro. Ramirez confronted Castro and
wrestled with him before stabbing Castro 29 times with a knife. After Castro
fell to the ground, Rodriguez and Ramirez searched Castro’s pockets for money,
robbed him of $1.25, and left the scene. The group went on to commit another
aggravated robbery and an attempted aggravated robbery later that night.
Castro, meanwhile, died in the parking lot of Times Market from his knife
wounds. Chavez and Rodriguez were apprehended soon after by police, but


                                       2
    Case: 15-70020    Document: 00513369247     Page: 3   Date Filed: 02/04/2016



                                 No. 15-70020
Ramirez eluded a police manhunt until he was finally apprehended near the
Mexican border on February 20, 2008.
      The State of Texas charged Ramirez with violating Texas Penal Code
§ 19.03(a)(2) by intentionally or knowingly causing Castro’s death while in the
course of committing or attempting to commit robbery.         The State’s case
against Ramirez was heard in the 94th District Court for Nueces County, in
front of Judge Bobby Galvan. The trial court appointed Edward F. Garza and
John Grant Jones as trial counsel for Ramirez on February 29, 2008. Ramirez’s
jury trial began on October 22, 2008. At Ramirez’s trial, his defense counsel
did not contest Castro’s murder but contended that the evidence did not show
that Ramirez was responsible for the underlying robbery. On this point, the
prosecution introduced evidence of the other robberies committed after
Castro’s murder. The jury ultimately found Ramirez guilty of Castro’s murder
and the underlying robbery, convicting Ramirez of capital murder on December
5, 2008.
      In accordance with Texas Code of Criminal Procedure Article 37.071, § 2,
the court then held a separate punishment hearing where the jury was to
determine whether or not Ramirez would receive the death penalty. At the
first day of sentencing on December 5, 2008, defense counsel made an opening
statement and called Ramirez’s father as a mitigation witness. However, on
the second day of sentencing on December 8, 2008, defense counsel informed
the court that Ramirez had directed counsel not to present any further
mitigation evidence, not to call any further witnesses, and not to argue against
the death penalty.    Defense counsel informed the court that he believed
Ramirez had thought out this request carefully and called Dr. Troy Martinez,
a clinical psychologist appointed to assist defense counsel, to testify that
Ramirez’s request had been knowingly and voluntarily made. The defense
then rested its mitigation case. On December 8, 2008, the jury answered the
                                       3
     Case: 15-70020        Document: 00513369247           Page: 4     Date Filed: 02/04/2016



                                        No. 15-70020
special issues presented in Ramirez’s punishment phase, and Ramirez received
a death sentence.
       Ramirez appealed his state conviction, through separate appellate
counsel, to the Texas Court of Criminal Appeals, which affirmed his conviction
in an unpublished decision on March 16, 2011. See Ramirez v. State, No. AP-
76100, 2011 WL 1196886, at *19 (Tex. Crim. App. Mar. 16, 2011). Ramirez’s
conviction became final after he failed to file a petition for certiorari to the
United States Supreme Court and the time for filing a petition expired.
Concurrent with his direct criminal appeal, Ramirez first filed a state
application for a writ of habeas corpus on June 17, 2010. In his application,
Ramirez argued that there were a number of errors during the course of his
trial and sentencing. 1 Ramirez alleged: (1) his due process rights were violated
when the parties agreed to 52 juror strikes in his absence at pre-trial voir dire
on November 4, 2008; (2) his right to a public trial was violated because



       1Under Texas’ procedure for death penalty cases, state habeas review functionally
runs concurrent to direct appellate review of a conviction imposing the death penalty:

       Sec. 4. (a) An application for a writ of habeas corpus, returnable to the court of
       criminal appeals, must be filed in the convicting court not later than the 180th
       day after the date the convicting court appoints counsel under Section 2 or not
       later than the 45th day after the date the state's original brief is filed on direct
       appeal with the court of criminal appeals, whichever date is later.

       (b) The convicting court, before the filing date that is applicable to the
       applicant under Subsection (a), may for good cause shown and after notice and
       an opportunity to be heard by the attorney representing the state grant one
       90-day extension that begins on the filing date applicable to the defendant
       under Subsection (a). Either party may request that the court hold a hearing
       on the request. If the convicting court finds that the applicant cannot establish
       good cause justifying the requested extension, the court shall make a finding
       stating that fact and deny the request for the extension.

       (c) An application filed after the filing date that is applicable to the applicant
       under Subsection (a) or (b) is untimely.

Tex. Code Crim. Proc. Ann. art. 11.071, § 4.
                                                4
    Case: 15-70020     Document: 00513369247     Page: 5   Date Filed: 02/04/2016



                                  No. 15-70020
members of the public were not allowed to enter the central jury room during
jury selection; (3) his due process and fair trial rights were violated when he
was shackled at trial and at sentencing; (4) trial counsel rendered ineffective
assistance by failing to probe the jurors regarding their views on the death
penalty; (5) trial counsel rendered ineffective assistance by failing to object to
Ramirez’s absence at voir dire; (6) trial counsel rendered ineffective assistance
by not objecting to the exclusion of members of the public; (7) trial counsel
rendered ineffective assistance by failing to object to Ramirez’s shackling; (8)
trial counsel rendered ineffective assistance by failing to object to the
introduction of Ramirez’s robbery offense under Texas Rule of Evidence 404(b);
(9) trial counsel rendered ineffective assistance by failing to present mitigating
evidence; and (10) the aggravating factors in Texas’s capital sentencing scheme
were unconstitutionally vague.
      Ramirez’s habeas petition was heard in front of the same lower court
that convicted him. The state habeas court held hearings on the writ on
September 14 and 26, 2011, and October 21, 2011, where it heard evidence
from the previous trial, testimony from Ramirez’s trial counsel, testimony from
a member of the security detail at trial, testimony from Dr. Martinez, and
testimony from Dr. Joanne Murphey, a clinical psychologist who testified in
support of Ramirez. On January 9, 2012, the state habeas court entered
detailed findings of fact and conclusions of law on Ramirez’s application and
ultimately recommended that the Texas Court of Criminal Appeals deny
habeas relief. The state habeas court found that Ramirez’s claims as to his
absence from jury strikes at voir dire, the exclusion of the public from jury




                                        5
     Case: 15-70020       Document: 00513369247         Page: 6    Date Filed: 02/04/2016



                                      No. 15-70020
selection, his shackling, and his objection to Texas’s capital sentencing scheme
were procedurally barred because he failed to raise them at trial by objection. 2
       The state court found that Ramirez’s ineffective assistance of counsel
claims were all without merit, both as a matter of performance and prejudice.
The court found that while trial counsel had not asked jurors about their death
penalty views on voir dire, counsel had submitted juror questionnaires
designed to elicit these views and that other voir dire questioning was designed
to evaluate which jurors could consider mitigation issues. The court found that
counsel was not deficient for failing to object to Ramirez’s absence during voir
dire because Ramirez had already discussed juror strikes with counsel and
given counsel permission to use his discretion in making such strikes. The
court also stated that counsel did not render deficient performance by failing
to object to the alleged exclusion of the public from voir dire because no such
exclusion occurred and, in any event, there would have been no strategic
advantage from the public’s presence. As for Ramirez’s shackling, the court
noted that there was no evidence that the jury heard the sound of Ramirez’s
shackles, so counsel could not be held ineffective for failing to object to this fact.
The court found that counsel’s failure to object to evidence of Ramirez’s
extraneous offenses was not deficient because counsel had verbal notice that
this evidence would be presented and the evidence would have been admissible
regardless. And the state habeas court found that defense counsel was not
deficient at the mitigation phase. The court found that trial counsel had



       2 The state habeas court also cast doubt on the merits of these claims in the
alternative. It found that Ramirez was aware of the jury strikes made in his absence and
had discussed the matter with trial counsel Ed Garza, giving Garza discretion to make strikes
in his absence. The court also found that there was no credible testimony showing that
members of the public were excluded from jury selection proceedings. And the court noted
that there was no evidence that the jury had ever seen Ramirez shackled or heard the sound
of shackles, so the shackles did not have a prejudicial effect on jury.
                                             6
     Case: 15-70020      Document: 00513369247        Page: 7     Date Filed: 02/04/2016



                                     No. 15-70020
investigated and developed mitigation evidence but honored Ramirez’s
instructions not to put on additional mitigation evidence—instructions that
appeared to be the product of a coherent and logical decision. While Dr. Joanne
Murphey testified that Ramirez could not have rationally waived his right to
mitigation, the state habeas court found her opinion not credible. 3 The Texas
Court of Criminal Appeals agreed with the findings and conclusions of the
lower court in full on October 10, 2012, and denied Ramirez habeas relief. Ex
parte Ramirez, No. WR-72735-03, 2012 WL 4834115, at *1 (Tex. Crim. App.
Oct. 10, 2012).
      Ramirez later filed a petition for federal habeas relief, raising the same
grounds of error that he had alleged in his state habeas petition. The district
court denied Ramirez’s petition for federal habeas relief on June 10, 2015,
applying the deferential standard of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (AEDPA). Ramirez v. Stephens, No. 2:12-CV-410, 2015 WL
3629639, at *1 (S.D. Tex. June 10, 2015). The district court found that the
state habeas court was not unreasonable in applying federal law when it
denied Ramirez’s ineffective assistance claims. Id. at *12–13. The court found
that the remaining claims raised by Ramirez were procedurally barred under
Texas’s contemporaneous objection rule and that Ramirez failed to show cause
or prejudice to avoid procedural default. Id. at *5, *12, *25. The court then
denied Ramirez a COA. Id. at *26. Ramirez timely filed his application for a
COA to appeal the district court’s decision on October 19, 2015.




      3 The state habeas court specifically found that Dr. Murphey was not credible because
she had extreme views that no rational person could waive mitigation and that a depressed
person could not make a rational decision. The court, however, credited her admission that
she had no reason to believe that Ramirez was incompetent to stand trial.
                                            7
     Case: 15-70020         Document: 00513369247         Page: 8     Date Filed: 02/04/2016



                                         No. 15-70020
                              II. STANDARD OF REVIEW
       Under AEDPA, particularly 28 U.S.C. § 2253(c), 4 “a state habeas
petitioner may appeal a district court’s dismissal of his petition only if he first
obtains a COA from the district court or the court of the appeals.” Reed v.
Stephens, 739 F.3d 753, 764 (5th Cir. 2014).                   The COA is therefore “a
jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a
circuit justice or judge issues a certificate of appealability, an appeal may not
be taken to the court of appeals.’” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (quoting 28 U.S.C. § 2253(c)(1)). In order to obtain a COA, the petitioner
must make a “substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional
claims on the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). And “[w]hen
the district court denies a habeas petition on procedural grounds without


       4   This statute provides, in relevant part:

       (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an
       appeal may not be taken to the court of appeals from--

                (A) the final order in a habeas corpus proceeding in which the
                detention complained of arises out of process issued by a State
                court; or

                (B) the final order in a proceeding under section 2255.

       (2) A certificate of appealability may issue under paragraph (1) only if the
       applicant has made a substantial showing of the denial of a constitutional
       right.

       (3) The certificate of appealability under paragraph (1) shall indicate which
       specific issue or issues satisfy the showing required by paragraph (2).

28 U.S.C. § 2253(c).
                                                8
    Case: 15-70020     Document: 00513369247      Page: 9    Date Filed: 02/04/2016



                                  No. 15-70020
reaching the prisoner’s underlying constitutional claim,” a petitioner must
show “that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id.
      When “reviewing [a] request for a COA, we only conduct a threshold
inquiry into the merits of the claims [the petitioner] raise[s] in his underlying
habeas petition.” Reed, 739 F.3d at 764 (citing Miller-El, 537 U.S. at 336). This
“threshold inquiry” is not a “full consideration of the factual or legal bases
adduced in support of the claims,” but rather “an overview of the claims in the
habeas petition and a general assessment of their merits.” Miller-El, 537 U.S.
at 336. In generally assessing the claims for relief in a COA, “[t]he question is
the debatability of the underlying constitutional claim, not the resolution of
that debate.” Id. at 342. And “in a death penalty case, ‘any doubts as to
whether a COA should issue must be resolved in [the petitioner’s] favor.’”
Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (alteration in original)
(quoting Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000)).
      Despite our limited inquiry, “[i]n determining whether a COA should be
granted . . . this Court must remain cognizant of the deferential standard of
review imposed by AEDPA upon the district court in considering habeas
petitions.” Id. (citing Miller-El, 537 U.S. at 336–37). Under this deferential
standard, a federal court must defer to a state court’s adjudication of a claim
on the merits unless the state court proceeding “(1) resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court,” or “(2) resulted in a
decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
“A state court’s decision is contrary to Supreme Court precedent if . . . ‘the state
court arrives at a conclusion opposite to that reached by [the Supreme Court]
on a question of law’; or . . . ‘the state court confronts facts that are materially
                                         9
    Case: 15-70020      Document: 00513369247        Page: 10     Date Filed: 02/04/2016



                                     No. 15-70020
indistinguishable from a relevant Supreme Court precedent and arrives at a
result opposite to [that of the Supreme Court].’” Pippin v. Dretke, 434 F.3d
782, 787 (5th Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)).
And “a state-court factual determination is not unreasonable merely because
the federal habeas court would have reached a different conclusion in the first
instance.”    Wood v. Allen, 558 U.S. 290, 301 (2010); see id. (“[E]ven if
‘[r]easonable minds reviewing the record might disagree’ about the finding in
question, ‘on habeas review that does not suffice to supersede the trial court’s
. . . determination.’” (quoting Rice v. Collins, 546 U.S. 333, 341–42 (2006))).
   III. REASONABLE JURISTS WOULD NOT FIND IT DEBATABLE
    THAT RAMIREZ’S DUE PROCESS, PUBLIC TRIAL, AND FAIR
          TRIAL CLAIMS ARE PROCEDURALLY DEFAULTED
      In seeking a COA, Ramirez reiterates many of the same arguments that
he raised before the state habeas court but that the state habeas court found
procedurally defaulted under Texas’s contemporaneous objection rule.                   In
particular, Ramirez asserts that his absence from juror strikes at voir dire
violated his due process rights under the Fourteenth Amendment and the
Confrontation Clause of the Sixth Amendment, that he was denied his right to
a public trial under Sixth Amendment when the public was excluded from jury
selection, and that his due process rights and right to a fair trial under the
Sixth Amendment were violated when he was shackled at trial. 5 Given that
the district court found the claims procedurally barred, in order to obtain a
COA, Ramirez “must make a substantial showing that the district court’s
procedural ruling was incorrect before we can consider the merits of his
underlying . . . claim[s].” Turner v. Quarterman, 481 F.3d 292, 301 (5th Cir.



      5  Ramirez does not, however, raise his previous constitutional challenge to Texas’s
capital sentencing system in seeking a COA.
                                           10
    Case: 15-70020    Document: 00513369247      Page: 11    Date Filed: 02/04/2016



                                  No. 15-70020
2007). For the following reasons, we find that reasonable jurists would not
debate the district court’s procedural ruling.
      As a matter of jurisdiction, federal courts cannot “review a question of
federal law decided by a state court if the decision of that court rests on a state
law ground that is independent of the federal question and adequate to support
the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). And this
“doctrine applies to bar federal habeas when a state court declined to address
a prisoner’s federal claims because the prisoner had failed to meet a state
procedural requirement.” Id. at 729–30. We have previously held that the
Texas contemporaneous objection rule is “an adequate [state] procedural bar”
that defaults federal claims on federal habeas review. Turner, 481 F.3d at 301.
However, default under an adequate state procedural rule may still be excused
if “the prisoner can demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750. “In procedural default cases, the cause standard
requires the petitioner to show that ‘some objective factor external to the
defense impeded counsel’s efforts’ to raise the claim in state court.’” McKleskey
v. Zant, 499 U.S. 467, 493 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986)). These objective factors can include “‘interference by officials’ that
makes compliance with the State’s procedural rule impracticable, . . . ‘a
showing that the factual or legal basis for a claim was not reasonably available
to counsel’, . . . [and] ‘ineffective assistance of counsel.’” Id. at 494 (quoting
Murray, 477 U.S. at 488). To show actual prejudice, “the petitioner must prove
that the errors [he alleges] ‘worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.’” Canales v.
Stephens, 765 F.3d 551, 562 (5th Cir. 2014) (quoting United States v. Frady,
456 U.S. 152, 170 (1982)). And a “fundamental miscarriage of justice” will exist
                                        11
    Case: 15-70020        Document: 00513369247           Page: 12     Date Filed: 02/04/2016



                                        No. 15-70020
where petitioner “establishes that he is ‘actually innocent’ of the offense for
which he was convicted.” Reed, 739 F.3d at 767 (quoting Williams v. Thaler,
602 F.3d 291, 307 (5th Cir. 2010)).
       Reasonable jurists would not debate the district court’s holding that the
Texas contemporaneous objection rule applies to this case and that Ramirez
procedurally defaulted the claims listed above under this rule. Furthermore,
reasonable jurists would not debate that Ramirez has failed to show excuse for
the procedural default. Ramirez does not argue that failure to excuse would
result in a “fundamental miscarriage of justice.” 6 Murray, 477 U.S. at 515. To
the extent Ramirez argues that his procedural default is excused in his opening
brief, he suggests that there was cause for the default because his trial counsel
was ineffective in not raising objections at trial. 7 For the reasons discussed in
the next section, Ramirez’s trial counsel did not render ineffective assistance
and reasonable jurists would not find this debatable. But, even assuming that
there was ineffective assistance, reasonable jurists would not debate a lack of
prejudice from the errors Ramirez alleges.
       Ramirez does not specifically argue how the alleged errors he raises
“worked to his actual and substantial disadvantage.” Frady, 456 U.S. at 170.




       6  This argument, in any event, would be foreclosed because Ramirez is not actually
innocent of the offense he was convicted of, given Ramirez’s own concession at his state trial
that he murdered Castro and the other evidence presented by the State at that trial.
        7 Ramirez does not directly confront the issue of procedural default in his opening

brief, but he does separately argue ineffective assistance of counsel on the ground that trial
counsel failed to preserve objections as to the three defaulted claims. In accordance with the
principle that we resolve doubts in a COA in favor of the petitioner in death penalty cases,
we treat Ramirez’s ineffective assistance argument as an argument as to why there is cause
for the default. See Ramirez, 398 F.3d at 694. Ramirez’s reply brief does confront the issue
of procedural default. However, we do not consider any arguments made in Ramirez’s reply
brief, but not raised in his opening brief, because petitioners waive issues they fail to raise in
their opening briefs. See Pyles v. Johnson, 136 F.3d 986, 996 n.9 (5th Cir. 1998) (“[B]ecause
[petitioner] failed to raise the issue in his opening brief, [petitioner] has waived any challenge
to the [issue raised in the reply brief].”).
                                               12
    Case: 15-70020        Document: 00513369247          Page: 13     Date Filed: 02/04/2016



                                       No. 15-70020
And the findings of fact by the state habeas court—to which we defer unless
they are “unreasonable,” 28 U.S.C. § 2254(d)(2)—demonstrate a lack of
prejudice to Ramirez or directly contradict Ramirez’s version of the facts on the
three defaulted claims. On Ramirez’s first claim that his absence from juror
strikes at voir dire violated his due process rights, the state habeas court’s
findings demonstrate that Ramirez’s absence was not prejudicial.                         Trial
counsel discussed the juror strikes with Ramirez, who gave his attorneys
permission to use their discretion in striking jurors. In light of this, the state
habeas court found that “Ramirez’s presence at the bench conference in
question would not bear a reasonably substantial relationship to his
opportunity to defend.”         On Ramirez’s second claim that the public was
excluded from voir dire, the court found that Ramirez did not prove this claim
by a preponderance of the evidence. In fact, credible testimony from a member
of the security detail at Ramirez’s trial showed that no member of the public
was turned away from voir dire. And on Ramirez’s third claim—that he was
prejudiced by his shackling at trial—the court found that there was no
evidence that the jury at Ramirez’s trial ever saw Ramirez shackled or that the
sound of his shackles was audible to the jury. 8
       Ramirez does not argue in his opening brief that the state habeas court’s
findings were “based on an unreasonable determination of the facts,” 28 U.S.C.
§ 2254(d)(2), 9 and we cannot hold, on this record, that reasonable jurists would


       8  While shackling of a defendant at trial can be a due process violation, the Supreme
Court has stated that this violation occurs where there is no “adequate justification” for the
shackling and the “shackles . . . will be seen by the jury.” Deck v. Missouri, 544 U.S. 622, 635
(2005). Our court has found that, in habeas, a writ based on this error will only issue “when
[the] error had a ‘substantial and injurious effect or influence in determining the jury’s
verdict.’” Hatten v. Quarterman, 570 F.3d 595, 604 (5th Cir. 2009) (quoting Fry v. Pliler, 551
U.S. 112, 121–22 (2007)). As we note above, Ramirez fails to show that his shackles were
seen by the jury, and the state habeas court found that they had no influence on the jury.
        9 Similar to Ramirez’s briefing of procedural default, Ramirez failed to argue whether

or not the state habeas court’s findings were unreasonable in his opening brief. Because he
                                              13
    Case: 15-70020       Document: 00513369247          Page: 14     Date Filed: 02/04/2016



                                       No. 15-70020
debate whether the state court’s factfinding was unreasonable. Therefore, we
conclude that Ramirez fails to show that reasonable jurists would debate
whether the procedural default of his claims is excused. Accordingly, we deny
Ramirez’s COA on his due process, public trial, and fair trial claims. 10
            IV. REASONABLE JURISTS WOULD NOT FIND IT
             DEBATABLE THAT RAMIREZ HAS NOT SHOWN
                 INEFFECTIVE ASSISTANCE OF COUNSEL
       Unlike his other claims, Ramirez’s ineffective assistance of counsel
claims are preserved for federal habeas review. In seeking a COA on his
ineffective assistance argument, Ramirez alleges a number of errors by trial
counsel. In particular, Ramirez argues that trial counsel rendered ineffective
assistance because: (1) counsel failed to inquire as to the jurors’ views on the
death penalty at voir dire; (2) counsel failed to object to Ramirez’s absence at
voir dire; (3) counsel failed to object to the exclusion of the public from voir dire;
(4) counsel failed to object to Ramirez’s shackling; (5) counsel failed to object to
the introduction of evidence of Ramirez’s arrest and robbery under Texas Rule
of Evidence 404(b); and (6) counsel failed to present mitigating evidence and
failed to realize that Ramirez was not competent to direct counsel to abandon
mitigation at the punishment phase.
       Ramirez’s application for a COA on his ineffective assistance claim is not
only governed by the standard under AEDPA but also by the standard for
ineffective assistance claims under Strickland v. Washington, 466 U.S. 668




failed to do so, we consider any arguments on the reasonableness of the state court’s findings
of fact raised in Ramirez’s reply brief to be waived. See Pyles, 136 F.3d at 996 n.9.
        10 We decline to evaluate the merits of the three procedurally defaulted claims

Ramirez now raises given our limited and deferential review under AEDPA, particularly
when reviewing applications for COA. However, we note briefly that both the state habeas
court and the district court found that Ramirez’s claims were without merit based on the
factual findings made by the state habeas court.
                                             14
    Case: 15-70020      Document: 00513369247    Page: 15   Date Filed: 02/04/2016



                                  No. 15-70020
(1984).   Under Strickland, ineffective assistance of counsel is a Sixth
Amendment violation. Id. at 686–87. Ineffective assistance under Strickland
will be found where counsel (1) rendered deficient performance that (2)
prejudiced the defendant so as to deprive him of a fair trial. Id. at 700. As to
the deficient performance prong, “Strickland does not guarantee perfect
representation, only a ‘reasonably competent attorney.’” Harrington v. Richter,
562 U.S. 86, 110 (2011) (quoting Strickland, 466 U.S. at 687); see also Padilla
v. Kentucky, 559 U.S. 356, 371 (2010) (“Surmounting Strickland’s high bar is
never an easy task.”).     In fact, Strickland makes clear that “[t]he proper
measure of attorney performance remains simply reasonableness under
prevailing professional norms.”     Strickland, 466 U.S. at 688.       As to the
prejudice prong, a petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “The likelihood of a different result must be
substantial, not just conceivable.” Harrington, 562 U.S. at 112. This standard
is a deferential one.
      In addition, we note that our review on habeas in this case is “doubly
deferential” because “[w]e take a ‘highly deferential’ look at counsel’s
performance . . . through the ‘deferential lens of § 2254(d).’”         Cullen v.
Pinholster, 563 U.S. 170, 190 (2011) (quoting Knowles v. Mirzayance, 556 U.S.
111, 112, 121 n.2 (2009)).     “Combining the Strickland, AEDPA, and COA
standards,” Ramirez “is entitled to a COA only if reasonable jurists could
debate” the district court’s conclusion that there was no Strickland violation
and the “state habeas court’s finding that there was no Strickland violation
was contrary to, or an unreasonable application of clear Supreme Court law.”
Battaglia v. Stephens, 2015 WL 4257256, at *2 (5th Cir. July 15, 2015) (per
curiam) (unpublished). We address all of Ramirez’s sub-claims as to ineffective


                                       15
   Case: 15-70020     Document: 00513369247     Page: 16    Date Filed: 02/04/2016



                                 No. 15-70020
assistance in turn and find that reasonable jurists could not debate the lack of
a Strickland violation by Ramirez’s trial counsel.
A. Counsel’s Failure to Submit Death Penalty Questions to Potential
Jurors
      Ramirez first argues that his trial counsel rendered ineffective
assistance by not properly questioning potential jurors about their views on
the death penalty.    Specifically, Ramirez argues that none of the jurors
ultimately selected for trial were asked at voir dire about their views on
whether the death penalty should apply to someone convicted of murder in the
course of committing robbery. Ramirez also alleges that defense counsel failed
to ask questions about the jurors’ ability to consider evidence of future
dangerousness and mitigation and that counsel should have used the Colorado
method for juror selection. Because the ability of jurors to assess such evidence
is critical in death penalty cases, Ramirez argues that counsel’s failure to ask
the jurors these questions constitutes deficient performance and is prejudicial
because trial counsel could not ensure an impartial jury.
      In Morgan v. Illinois, 504 U.S. 719 (1992), the Supreme Court held that
“based on the requirement of impartiality embodied in the Due Process Clause
of the Fourteenth Amendment, a capital defendant may challenge for cause
any prospective juror” who “has already formed an opinion on the merits [as to
a capital sentence regardless of] the presence or absence of either aggravating
or mitigating circumstances.” Id. at 729. The Court subsequently held it was
constitutional error not to allow defendants to identify and exclude jurors who
held “dogmatic beliefs about the death penalty” at voir dire. Id. at 735. But
with respect to deficient performance at voir dire, we have noted that an
“attorney’s actions during voir dire are considered to be a matter of trial
strategy.” Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995). And “[a] decision
regarding trial tactics cannot be the basis for a claim of ineffective assistance
                                       16
    Case: 15-70020      Document: 00513369247        Page: 17     Date Filed: 02/04/2016



                                     No. 15-70020
of counsel unless counsel’s tactics are shown to be ‘so ill chosen that it
permeates the entire trial with obvious unfairness.’” Id. (quoting Garland v.
Maggio, 717 F.2d 199, 206 (5th Cir. 1983)). This is because “in determining
whether counsel’s performance was deficient, we must be highly deferential to
counsel’s trial strategy.” United States v. Mullins, 315 F.3d 449, 453 (5th Cir.
2002).
      Although trial counsel did not ask the specific questions that Ramirez
now claims counsel should have asked or use a specific method of juror
selection, the state habeas court found that trial counsel used juror
questionnaires to sift through the prospective jurors’ death penalty views.
These questionnaires posed questions designed to identify and eliminate jurors
who would not be able to fully and fairly consider future dangerousness and
mitigation. These questions included asking potential jurors about their views
on the death penalty, whether they would automatically impose the death
penalty in every capital murder case, and whether a life sentence might be
appropriate in some circumstances.              The state habeas court ultimately
concluded that defense counsel had examined the potential jurors extensively
and that each juror was asked, in one form or another, whether he or she could
consider all the evidence before sentencing Ramirez to death.
      Ramirez’s argument that trial counsel should have asked specific
questions at voir dire amounts to a disagreement about trial strategy.
However, under Strickland we usually defer to counsel’s trial strategy.
Moreover, Ramirez fails to show that the tactic of using juror questionnaires
was “so ill chosen that it permeate[d] the entire trial with obvious
unfairness.” 11 Teague, 60 F.3d at 1172 (quoting Garland, 717 F.2d at 206). As



      11 Ramirez’s opening brief in support of an application for COA does not address the
juror questionnaires.
                                           17
   Case: 15-70020     Document: 00513369247     Page: 18   Date Filed: 02/04/2016



                                 No. 15-70020
the state habeas court found, the juror questionnaires coupled with the
questions that were asked at voir dire were sufficient to filter jurors who had
dogmatic views on the death penalty. Given our highly deferential standard
and the findings of the state habeas court, reasonable jurists could not debate
the district court’s holding that Ramirez failed to show ineffective assistance
on this sub-claim.
B. Counsel’s Failure to Object to Absence of Ramirez during Voir Dire
      Ramirez’s second argument for ineffective assistance is that his trial
counsel failed to object to Ramirez’s absence during voir dire. Ramirez argues
that his absence at voir dire violated his Confrontation Clause rights and that
this error should have been preserved by counsel. Ramirez argues that his
absence and the resulting failure to object had a reasonable possibility of
prejudice since the parties agreed to excuse 52 potential jurors at the
proceeding where Ramirez was not present.
      A defendant’s “constitutional right to presence is rooted to a large extent
in the Confrontation Clause of the Sixth Amendment . . . but . . . this right is
protected by the Due Process Clause in some situations where the defendant
is not actually confronting witnesses or evidence against him.” United States
v. Gagnon, 470 U.S. 522, 526 (1985). Our court has recognized that this due
process right extends to jury impanelment. See United States v. Thomas, 724
F.3d 632, 642 (5th Cir. 2013) (“The right to be present at jury impanelment is
protected by the . . . Due Process Clause.”); see also id. (noting that jury
impanelment “is ‘a stage at which the defendant can provide meaningful
assistance to counsel.’” (quoting United States v. Alikpo, 944 F.2d 206, 210 (5th
Cir. 1991))). However, this right is not absolute. “[T]he presence of a defendant
is a condition of due process to the extent that a fair and just hearing would be
thwarted by his absence,” Gagnon, 470 U.S. at 526 (quoting Snyder v.
Massachusetts, 291 U.S. 97, 107–08 (1934)), and “the exclusion of a defendant
                                       18
    Case: 15-70020       Document: 00513369247          Page: 19     Date Filed: 02/04/2016



                                       No. 15-70020
from a trial proceeding should be considered in light of the whole record,” id.
at 526–27.      As such, we have recognized that the right to be present at
impanelment may be waived. See Thomas, 724 F.3d at 643 (“[T]o waive a
constitutional right to be present at jury impanelment, the waiver must be
particularly informed or voluntary.”). And even without waiver, we have noted
that the absence of a defendant from jury impanelment is error only when the
absence had “a prejudicial impact” and “affected the outcome of the . . .
proceedings.” Id. at 646; see also Kentucky v. Stincer, 482 U.S. 730, 745 (1987)
(“[The] privilege of presence is not guaranteed ‘when presence would be
useless, or the benefit but a shadow.’” (quoting Snyder, 291 U.S. at 106–07)).
       Reasonable jurists would not debate the district court’s holding that trial
counsel did not render ineffective assistance by failing to object to Ramirez’s
absence at trial because Ramirez’s absence did not prejudice the outcome of his
trial. Although it is unclear why Ramirez was absent from voir dire, 12 Ramirez
fails to show prejudice both with respect to the Due Process Clause and under
Strickland. In fact, the state habeas court found a lack of prejudice from
Ramirez’s absence and found that counsel acted reasonably with respect to
keeping Ramirez informed of the juror strikes. The state habeas court made
findings of fact that Ramirez had discussed with counsel and agreed on the
juror strikes that were later made at voir dire and had given trial counsel
discretion to make such strikes.
C. Counsel’s Failure to Object to Exclusion of Public from Voir Dire
       Ramirez also argues that his trial counsel rendered ineffective assistance
by failing to object to the exclusion of the public from voir dire. However, as
we noted previously, the state habeas court made findings of fact that no such



       12Ramirez claims that his absence was not an implicit waiver of his right to be present
at proceedings. We need not address this point, however.
                                             19
       Case: 15-70020   Document: 00513369247      Page: 20   Date Filed: 02/04/2016



                                    No. 15-70020
exclusion occurred. Under AEDPA, we give deference to this finding of fact
absent a showing by the petitioner that it was unreasonable.             28 U.S.C.
§ 2254(d). And Ramirez fails to contradict the state court’s findings or show
that the findings were unreasonable in his opening brief seeking an application
for a COA. Because we find that Ramirez has not adequately briefed the
underlying factual issue, we find that his argument on this sub-claim is
waived. See Lookingbill v. Cockrell, 293 F.3d 256, 263 (5th Cir. 2002) (“Where
a habeas petitioner fails to brief an argument adequately, we consider it
waived.”); see also Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260
n.9 (5th Cir. 1995) (finding arguments waived where they are not raised in an
opening brief).
D. Counsel’s Failure to Object to Ramirez’s Shackling
         Ramirez next argues that counsel rendered ineffective assistance by
failing to object to Ramirez’s shackling.        Much like Ramirez’s claim that
counsel failed to object to the exclusion of the public from voir dire, the factual
basis for this claim is directly controverted by the findings of fact made by the
state habeas court. The state habeas court found that there was no evidence
that the jury had seen Ramirez shackled or had noticed the sound of his
shackles so that the shackles would have influenced the jury’s result. As
Ramirez fails to challenge the state habeas court’s factfinding on this issue in
his opening brief seeking an application for a COA, we find that this argument
is similarly waived. See Lookingbill, 293 F.3d at 263; Cavallini, 44 F.3d at 260
n.9.
E. Counsel’s Failure to Object to 404(b) Evidence
         Ramirez also argues that trial counsel was ineffective by failing to object
at trial to the State’s introduction of evidence that Ramirez committed
aggravated robbery and attempted aggravated robbery on the night of Castro’s
murder and then evaded the police. According to Ramirez, the introduction of
                                          20
    Case: 15-70020          Document: 00513369247        Page: 21       Date Filed: 02/04/2016



                                         No. 15-70020
this evidence violated Texas Rule of Evidence 404(b) because it was evidence
of extraneous offenses. 13 Because trial counsel failed to object to this evidence
and argue for its exclusion, Ramirez argues that he was not able to raise the
objection on direct appeal. Ramirez also seems to suggest that trial counsel
did not have adequate notice of the introduction of this evidence and should
have objected to this lack of notice, as Texas Rule of Evidence 404(b) requires
that the prosecution provide reasonable notice before trial when it seeks to
introduce evidence of other crimes or wrong acts.
       Reasonable jurists could not debate the district court’s holding that trial
counsel’s failure to object to the introduction of Rule 404(b) evidence did not
amount to ineffective assistance. As the district court correctly noted, the
ineffective assistance claim by Ramirez here is rooted in an alleged error of
state law. We have cautioned that “[i]n habeas actions this court does not sit
to review the mere admissibility of evidence under state law,” and that these
errors only merit relief where they “are so extreme that they constitute a denial
of fundamental fairness.” Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998).
Moreover, “a state court’s interpretation of state law, including one announced
on direct appeal of the challenged conviction, binds a federal court sitting in


       13   Texas Rule of Evidence 404(b) provides, in relevant part:

       (b) Crimes, Wrongs, or Other Acts.
              (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
              admissible to prove a person's character in order to show that on a
              particular occasion the person acted in accordance with the character.
              (2) Permitted Uses; Notice in Criminal Case. This evidence may be
              admissible for another purpose, such as proving motive, opportunity,
              intent, preparation, plan, knowledge, identity, absence of mistake, or
              lack of accident. On timely request by a defendant in a criminal case,
              the prosecutor must provide reasonable notice before trial that the
              prosecution intends to introduce such evidence--other than that arising
              in the same transaction--in its case-in-chief.

Tex. R. Evid. 404(b).
                                               21
    Case: 15-70020       Document: 00513369247         Page: 22     Date Filed: 02/04/2016



                                      No. 15-70020
habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam).
Given these principles, we accept the finding of the state habeas court that the
introduction of the other offense evidence in Ramirez’s case was not legal error.
In addition, Ramirez’s claim of error is foreclosed by the state habeas court’s
findings of fact. The state habeas court found that counsel had verbal notice
that the prosecutor intended to put on evidence of Ramirez’s other offenses at
trial as part of the murder count, but that trial counsel conceded the evidence
would be admissible. The state habeas court added that it was not clear that
written notice of 404(b) evidence had to be provided rather than verbal notice.
Moreover, the court found that the evidence presented by the State was “same
transaction contextual evidence” that did not violate 404(b) and did not require
notice. 14
F. Counsel’s Failure to Present Mitigating Evidence
       Finally, Ramirez argues that trial counsel was ineffective because
counsel failed to present mitigating evidence at the punishment phase of
Ramirez’s trial. Ramirez alleges that trial counsel failed to interview certain
witnesses and failed to investigate and develop mitigating evidence. Ramirez
also argues that trial counsel failed to put on sufficiently available mitigation
evidence by resting after the first day of sentencing. 15                 While Ramirez
acknowledges that he instructed trial counsel not to put on any mitigation
evidence after the first day, he argues that counsel was ineffective in failing to


       14  “Same transaction contextual evidence” is evidence that reflects the context in
which a criminal act occurred and is admissible under Texas Rule of Evidence 404(b) where
it is necessary to the jury’s understanding of the offense. Wesbrook v. State, 29 S.W.3d 103,
115 (Tex. Crim. App. 2000). On direct appeal of Ramirez’s conviction, the Texas Court of
Criminal Appeals reached the conclusion, as the state habeas court later did, that the
evidence introduced by the State was admissible under Rule 404(b). See Ramirez, 2011 WL
1196886, at *15.
        15 In his application for a COA, Ramirez recounts the same potential mitigation

evidence he presented to the state habeas court, including his abusive family history, his
drug problems, and his previous behavioral problems.
                                             22
   Case: 15-70020    Document: 00513369247      Page: 23   Date Filed: 02/04/2016



                                 No. 15-70020
recognize that Ramirez was suicidal and irrational at the time and was
therefore unable and incompetent to direct counsel. For support, Ramirez
points to testimony from Dr. Murphey, an expert who testified at the state
habeas hearing. Dr. Murphey testified that Ramirez’s decision to abandon the
punishment phase was flawed and that Ramirez was likely suicidal and
irrational when he made the decision. Ramirez argues that but for counsel’s
failure to present mitigation testimony, there would have been a reasonable
probability that he would have received a life sentence rather than a death
sentence.
      Failure to conduct a sufficient mitigation defense and investigation in a
death penalty case may constitute ineffective assistance of counsel in violation
of the Sixth Amendment. See Rompilla v. Beard, 545 U.S. 374, 383 (2005)
(finding ineffective assistance where lawyers failed to investigate a prior
conviction in preparation for a mitigation phase); Wiggins v. Smith, 539 U.S.
510, 524 (2003) (finding ineffective assistance where counsel failed to
investigate petitioner’s personal background). We have also held, though, that
“when a defendant blocks his attorney’s efforts to defend him . . . he cannot
later claim ineffective assistance of counsel.” Roberts v. Dretke, 356 F.3d 632,
638 (5th Cir. 2004); see also Sonnier v. Quarterman, 476 F.3d 349, 361–63 (5th
Cir. 2007) (finding no Strickland violation where the defendant directed
counsel specifically not to present mitigation evidence).     “However, if the
defendant was not competent to make . . . instructions [directing counsel not
to present mitigation] then he may pursue his Strickland claim.” Roberts, 356
F.3d at 638. In determining a defendant’s competence to waive a mitigation
case, “a competency hearing is not automatically required before counsel can
accept a client’s decision to not present evidence during the sentencing phase
of a capital trial,” Wood v. Quarterman, 491 F.3d 196, 204 (5th Cir. 2007), and
“is necessary only when a court has reason to doubt the defendant’s
                                      23
    Case: 15-70020    Document: 00513369247     Page: 24   Date Filed: 02/04/2016



                                 No. 15-70020
competence,” id. at 205 (quoting Godinez v. Moran, 509 U.S. 389, 401 n.13
(1993)).
      Reasonable jurists would not debate the district court’s holding that
Ramirez’s trial counsel’s mitigation case did not amount to ineffective
assistance. First, reasonable jurists would not find that Ramirez’s trial counsel
failed to sufficiently investigate and prepare a mitigation case. Ramirez’s
arguments on this point are premised on the supposed failure of counsel to
interview certain members of Ramirez’s family, a statement from Ramirez’s
grandmother that she was not interviewed about his background, and
allegations from other members of Ramirez’s family that counsel did not know
much about Ramirez’s personal history. However, the state habeas court, to
which we defer under AEDPA, concluded that trial counsel had questioned a
sufficient number of witnesses and made sufficient preparations for witness
testimony in order to be able to present a convincing mitigation case. As with
Ramirez’s other arguments on ineffective assistance, he fails to show in his
opening brief that the state habeas court’s finding of fact was unreasonable.
      Second, reasonable jurists would not find that trial counsel rendered
ineffective assistance when counsel decided to stop their mitigation case at
Ramirez’s request.     Ramirez’s “directions were entitled to be followed,”
Lowenfield v. Phelps, 817 F.2d 285, 292 (5th Cir. 1987), absent evidence that
he was not competent to waive mitigation. According to the state habeas
court’s findings, Ramirez’s counsel tried to ascertain Ramirez’s competence in
waiving mitigation. Counsel explained to Ramirez the consequences of failing
to present a mitigation case, and the attorneys believed that Ramirez
presented a coherent and logical reason for directing his attorneys to not
present a mitigation case, namely that Ramirez did not want a life sentence
and wanted to avoid spending the rest of his life in jail. The state habeas court
also noted that the trial court, after hearing of Ramirez’s request to waive
                                       24
    Case: 15-70020    Document: 00513369247     Page: 25   Date Filed: 02/04/2016



                                 No. 15-70020
mitigation, heard testimony from Dr. Martinez on Ramirez’s competence.
Dr. Martinez testified that he had interviewed Ramirez and that Ramirez had
articulated specific and explicit reasons for the decision not to present
mitigating evidence. The state habeas court concluded that this evidence
showed that Ramirez did not show incompetence in waiving his mitigation
defense. Although Ramirez argues that counsel should have recognized he was
incompetent based on testimony at his state habeas hearing by Dr. Joann
Murphey, the state habeas court specifically found Dr. Murphey’s testimony to
not be credible. And Ramirez fails to show that the state habeas court’s
credibility determination was based on an unreasonable view of the facts.
Absent evidence of incompetence on Ramirez’s part, Ramirez cannot allege
ineffective assistance based on his trial counsel’s failure to present mitigation
evidence when the failure was the result of respecting Ramirez’s own request.
                              V. CONCLUSION
       For the foregoing reasons, we DENY a COA as to all of Ramirez’s claims
for relief.




                                       25
