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

                                      No. 19-70003
                                                                              Fifth Circuit

                                                                            FILED
                                                                         July 7, 2020

WESLEY LYNN RUIZ,                                                      Lyle W. Cayce
                                                                            Clerk
              Petitioner–Appellant,

v.

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

              Respondent–Appellee.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CV-5112


Before OWEN, Chief Judge, and WILLETT and OLDHAM, Circuit Judges.
PER CURIAM:*
       Wesley Lynn Ruiz, a prisoner sentenced to death, seeks a certificate of
appealability (COA) for his habeas petition. To succeed, Ruiz must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Having carefully reviewed the record and arguments of counsel,
we conclude that Ruiz’s arguments fail on procedural and substantive grounds.
We thus deny his COA motion.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 19-70003
                                             I
       In 2008, a jury convicted Ruiz of murdering a police officer and sentenced
Ruiz to death. At his Texas state court sentencing hearing, the prosecution
called A. P. Merillat, a criminal investigator for the Huntsville Special
Prosecution Unit, as an expert on prisoner classification. On direct
examination, Merillat testified that Ruiz would receive a moderately
restrictive classification if sentenced to life without parole, but that after ten
years he could be promoted to a less restrictive classification “depending on his
behavior.” This testimony was indisputably incorrect; the Texas Department
of Criminal Justice (TDCJ) had changed its policy in 2005, disallowing this
exact reclassification. See Estrada v. State, 313 S.W.3d 274, 287 (Tex. Crim.
App. 2010) (taking judicial notice of the TDCJ’s policy change). And despite
Ruiz’s counsel’s retention of an independent Texas prisoner-classification
expert who testified at Ruiz’s trial, neither counsel nor his expert identified
Merillat’s statement as erroneous for the jury.
       Ruiz appealed to the Texas Court of Criminal Appeals (TCCA), which
affirmed his conviction and sentence. 1 Then he filed a timely state habeas
petition, quickly followed by a supplement to that petition. The former was
denied on the merits, and the latter was dismissed as a subsequent habeas
application without an exception to the successive-petition bar. Ex parte Ruiz,
No. WR-78,129-01, WR-78,129-02 (Tex. Crim. App. Sept. 26, 2012) (finding the
supplement an “abuse of the writ” (citing TEX. CODE CRIM. PROC. art. 11.071
§ 5(a))). 2




       1 The Supreme Court denied certiorari review. Ruiz v. Texas, 565 U.S. 946 (2011).
       2 The TCCA adopted the trial court’s factual findings and legal conclusions, which the
trial court developed after an evidentiary hearing. And, again, the Supreme Court denied
certiorari review. Ruiz v. Texas, 569 U.S. 906 (2013).
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                                 No. 19-70003
      So Ruiz filed a habeas petition in federal court, where for the first time
he raised claims related to Merillat’s testimony. Realizing his procedural
hurdles, Ruiz immediately filed a motion to stay the federal proceedings so that
he could exhaust his Merillat-related claims in state court with another habeas
petition. The federal district court granted the stay. The TCCA dismissed
Ruiz’s second petition as abuse-of-the-writ; again, Ruiz ran afoul of the
successive-petition bar without qualifying for an exception. Ex parte Ruiz, No.
WR-78, 129-03 (Tex. Crim. App. Nov. 19, 2014) (citing TEX. CODE CRIM. PROC.
art. 11.071 § 5(a)). So Ruiz resumed his federal habeas proceedings, urging
relief on the merits and, in the alternative, a COA if his habeas claims were
denied. The district court denied relief and didn’t issue a COA. On appeal, Ruiz
requests a COA from us, urging that his petition states valid habeas claims for
relief including:
      (1) knowing failure to correct false testimony;
      (2) ineffective assistance of trial, initial habeas, and appellate
           counsel;
      (3) unconstitutional police presence at trial;
      (4) Texas’s death penalty procedure is unconstitutional; and
      (5) cumulative error.

                                       II
      Before a petitioner may appeal the dismissal of his federal habeas
petition, he must “seek and obtain” a COA—there’s no automatic right to
appeal under our statutory habeas scheme. § 2253(c)(1); see also Cardenas v.
Thaler, 651 F.3d 442, 443–44 (5th Cir. 2011) (expounding that we only have
jurisdiction to consider whether a COA should issue when a district court first
“rule[s] upon whether a COA is warranted”). A COA should only issue when
the petitioner has substantially shown denial of a constitutional right.
§ 2253(c). How this requirement may be satisfied depends on whether the
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                                  No. 19-70003
district court rejected the petitioner’s habeas claim on substantive or
procedural grounds. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). If the
former, “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.” Id. If the
latter, the petitioner must show that jurists of reason would find it debatable
whether (1) “the petition states a valid claim of the denial of a constitutional
right” and whether (2) “the district court was correct in its procedural ruling.”
Id.
                                        A
       Ruiz first asserts that the state’s failure to correct Merillat’s testimony
violated his constitutional rights. The district court dismissed all claims
connected to Merillat’s testimony on procedural grounds, so Ruiz must satisfy
Slack’s two-pronged showing. 529 U.S. at 484. And because jurists of reason
cannot debate whether the district court properly ruled that Ruiz’s claim was
procedurally barred—Slack prong two—our inquiry ends there. See, e.g.,
Giesberg v. Cockrell, 288 F.3d 268 (5th Cir. 2002) (denying a COA because the
district court properly applied a procedural bar).
       In 2005, the TDCJ promulgated a new policy ensuring that a prisoner
sentenced for capital murder would never receive a prisoner classification
below a certain level. In Ruiz’s 2008 trial, Merillat incorrectly testified that
capital murderers could be classified below that level after ten years in prison.
In 2010, Ruiz filed his direct appeal with the TCCA. Before ruling on Ruiz’s
appeal, the TCCA decided Estrada, a case where Merillat had delivered the
same incorrect testimony on prisoner classification that he had in Ruiz’s trial.
313 S.W.3d at 274. The Estrada court took judicial notice that the TDCJ’s
prisoner-classification policy had changed, held that Merillat had testified


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                                     No. 19-70003
inaccurately in Estrada’s trial, and remanded for a new punishment hearing.
Id. at 287.
       Ruiz wants a similar outcome despite being a dissimilar appellant. Ruiz
did not raise any Merillat-related claims on direct appeal or in his first state
habeas petition; the Estrada petitioner raised this issue from the get-go. Id. In
fact, Ruiz didn’t raise these claims until his federal habeas petition nearly
three years after trial. Ruiz realized his error and returned to state court,
attempting to exhaust his Merillat-related claims so he could proceed with
them in his federal habeas proceeding. But the TCCA dismissed his petition,
finding it barred by the no-successive-petition rule without exception. Ex parte
Ruiz, No. WR-78,129-03 (citing TEX. CODE CRIM. PROC. art. 11.071 § 5(a)).
Based on this holding, the district court concluded Ruiz’s Merillat-related
federal habeas claims were procedurally barred. This holding is not debatable
by reasonable jurists.
       We have been clear: Federal courts may not review constitutional
questions when: (1) the last state court considering the claim expressly relies
on state procedural grounds to dismiss; (2) the grounds are independent of the
federal claim’s merits; and (3) the grounds are an adequate basis for the federal
court’s decision. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001). Because
all three conditions are met here, rendering the district court’s procedural
ruling beyond debate, we deny Ruiz’s COA.
       As the first two prongs are clearly met, 3 we focus on whether the state
court’s holding is an adequate basis for the district court’s procedural bar
finding. We have consistently recognized Texas’s abuse-of-the-writ doctrine as
sufficient for this purpose. Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir.



       3The TCCA’s holding, based entirely on Article 11.071 § 5(a), is clearly independent
from the federal claim’s merits and relied on state procedural grounds.
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2008) (holding this doctrine is “an independent and adequate state ground for
. . . imposing a procedural bar”). Here, the TCCA explicitly dismissed Ruiz’s
habeas application as an abuse-of-the-writ—without addressing the merits—
because his Merillat-related allegations failed to satisfy the requirements of
Texas Code of Criminal Procedure Article 11.071 § 5(a). Because the Texas
court properly applied the abuse-of-the-writ doctrine, the state court’s
statutory-bar holding was an adequate basis for the district court’s procedural
bar ruling.
      Ruiz counters that the TCCA’s decision was erroneous, and not an
adequate basis for the district court’s holding, because his claim qualified for a
statutory exception to the abuse-of-the-writ doctrine. To be sure, Texas courts
may consider the merits of any subsequent habeas petition filed after an initial
application if the application specifically establishes that:
      (1) the current claims and issues have not been and could not have
      been presented previously in a timely initial application or in a
      previously considered application filed under this article or Article
      11.07 because the factual or legal basis for the claim was
      unavailable on the date the applicant filed the previous
      application;
      (2) by a preponderance of the evidence, but for a violation of the
      United States Constitution no rational juror could have found the
      applicant guilty beyond a reasonable doubt; or
      (3) by clear and convincing evidence, but for a violation of the
      United States Constitution no rational juror would have answered
      in the state’s favor one or more of the special issues that were
      submitted to the jury in the applicant’s trial . . . .
TEX. CODE CRIM. PROC. art. 11.071 § 5(a).
      But none of these provisions fit Ruiz. He could have raised the Merillat-
based claims in his earlier state habeas application, so the first statutory
exception doesn’t apply. Neither do the second or third because Ruiz’s requisite
“constitutional violation” falters at the outset. Ruiz argues that the state

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                                        No. 19-70003
violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose, post-
Estrada, that Merillat’s statement regarding prisoner classification was
inaccurate. But he simply invokes Brady without specifying how the state’s
actions violated it. In any event, his Brady claim falls short. 4 There is no
constitutional violation, a prerequisite to the second and third statutory
exceptions. 5 Because none of § 5(a)’s statutory exceptions apply to Ruiz’s claim,
the Texas court properly barred it. Therefore, reasonable jurists cannot debate
whether an adequate and independent state-law procedural ruling bars Ruiz’s
Merillat-based claims. They are barred. We deny a COA on these grounds.
                                               B
       Ruiz next argues that his trial, initial habeas, and appellate counsel all
provided ineffective assistance—the first for failing to object to Merillat’s
incorrect testimony and the second and third for failing to raise his trial
counsel’s ineffectiveness. But, again, no reasonable jurist could debate that the
district court properly found these claims procedurally barred—Slack prong
two—and we decline to issue a COA. 529 U.S. at 484.
       The district court ruled that Ruiz’s ineffective assistance of trial counsel
claim was procedurally defaulted because he failed to raise it in his direct



       4  We have never held that Brady requires the state to disclose inaccurate testimony
months after trial when a subsequent case publicly establishes that similar testimony is
inaccurate. And there is no evidence the state knew Merillat’s testimony was inaccurate
when Ruiz was tried. Regardless, Estrada was published six months before Ruiz’s first
habeas petition; he could have found this decision with reasonable diligence. When evidence
is equally available to both the prosecution and defense, the defendant bears the
responsibility of any failure to diligently investigate it. Kutzner v. Cockrell, 303 F.3d 333, 336
(5th Cir. 2002). Ruiz’s own failure to discover and timely raise his Merillat-related claims in
his first habeas petition cannot ground a Brady violation.
        5 Alternatively, Ruiz alleges his constitutional right to due process was violated by the

state’s presentation of Merillat’s false testimony. See Napue v. Illinois, 360 U.S. 264 (1959).
But Ruiz doesn’t present any evidence that the prosecution actually knew Merillat’s
testimony was false, a Napue prerequisite, so his Napue claim is a non-starter. United States
v. Agurs, 427 U.S. 97, 103 (1976); see also Kutzner, 303 F.3d at 337 (requiring proof of actual
knowledge).
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appeal or initial state habeas proceeding. Ruiz argues that, though he did fail
to raise this claim below, his procedural default should be excused because his
initial habeas counsel was itself ineffective by failing to raise an ineffective
assistance claim against his trial counsel. Martinez v. Ryan, 566 U.S. 1, 9
(2012) (“Inadequate assistance of counsel at initial-review collateral
proceedings may [excuse] a prisoner’s procedural default of a claim of
ineffective assistance at trial.”). For the reasons discussed below, Ruiz’s initial-
review counsel wasn’t ineffective. In turn, the district court’s procedural bar
holding is not debatable.
      Whether Ruiz’s initial-review counsel was ineffective depends on
whether his trial counsel was ineffective; if his trial counsel was not, then his
initial-review counsel cannot be faulted for failing to raise a non-existent
ineffective assistance of trial counsel claim. We look to the well-known two-
prong Strickland standard to determine whether trial counsel’s assistance was
ineffective. Martinez, 566 U.S. at 14. The petitioner must show a deficiency in
the performance of his counsel—that is, his counsel’s aid “fell below an
objective standard of reasonableness . . . under prevailing professional norms.”
Strickland v. Washington, 466 U.S. 668, 688–89 (1984) (reinforcing that the
petitioner must overcome the presumption that counsel’s actions (or lack
thereof) were within the wide range of professional norms). The petitioner
must also show prejudice: But for counsel’s error, the outcome of his trial would
have been different. Id. at 694.
      Ruiz argues that his trial counsel was ineffective for his “failure to object”
to Merillat’s incorrect testimony. But the alleged ineffective assistance is best
framed as trial counsel’s failure to impeach Merillat—either on cross
examination or through Ruiz’s own expert—for Merillat’s misstatement.
Reviewing this argument, we resolve Ruiz’s claim on Strickland prong one, his
counsel was not deficient, and therefore don’t address prong two.
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      The Texas prison-classification system is complex. When relevant,
attorneys often call expert witnesses to explain the schema’s nooks and
crannies. See, e.g., Garcia v. Stephens, 757 F.3d 220, 222, 226–29 (5th Cir.
2014). Following suit, Ruiz’s trial counsel hired an expert on this system to
combat the State’s expert, Merillat. Because trial counsel hired an expert to
address this complex subject matter, and counsel was entitled to rely on this
expert, counsel’s failure to impeach Merillat’s incorrect testimony relating to
the expert’s topic was not unreasonable. Though the expert failed to flag
Merillat’s erroneous testimony for trial counsel, this was the expert’s failure,
not counsel’s, and therefore counsel’s assistance was nonetheless adequate.
      Our conclusion is largely predicated on counsel’s right to rely on his
expert witnesses when developing labyrinthine subject matter such as the
voluminous and convoluted Texas prisoner-classification system. See Murphy
v. Davis, 901 F.3d 578, 592 (5th Cir. 2018) (“[C]ounsel should be able to rely on
[an expert] to alert counsel to additional needed information . . .”); Smith v.
Cockrell, 311 F.3d 661, 676–77 (5th Cir. 2002), overruled on other grounds by
Tennard v. Dretke, 542 U.S. 274, 124 (2004) (“Counsel should be permitted to
rely upon the objectively reasonable evaluations and opinions of expert
witnesses without worrying that a reviewing court will substitute its own
judgment . . . and rule that his performance was substandard for doing so.”).
In fact, holding otherwise would apply an improper “subject-matter-expert”
standard to counsel. See Segundo v. Davis, 831 F.3d 345, 352 (5th Cir. 2016)
(refusing to find counsel ineffective for relying on “reasonable expert
evaluations” of evidence). Counsel’s expert reviewed Merillat’s testimony and
testified at trial that he did not disagree with anything in it. ROA.5093. And
Ruiz offers no evidence that trial counsel had any reason to doubt his expert’s
conclusion. See Murphy, 901 F.3d at 592 (“Without a red flag . . . it is too much
to insist that counsel second-guess [his expert].”). As such, Ruiz cannot
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“overcome the strong presumption that counsel’s representation fell within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689
(“Judicial scrutiny of counsel’s performance must be highly deferential. . . .
There are countless ways to provide effective assistance in any given case.”). 6
       Reasonable jurists cannot debate that the district court correctly found
Ruiz’s ineffective assistance of trial, initial habeas, and appellate counsel
claims procedurally barred. And Martinez doesn’t excuse Ruiz’s procedural
default. So we decline to issue a COA on this ground as well.
                                               C
       Ruiz next claims he was denied the right to a fair and impartial trial
because there were at least ten, and possibly up to fifty, uniformed off-duty
police officers in the courtroom gallery during Ruiz’s trial’s punishment phase.
The district court denied relief on the merits, finding that because the Supreme
Court hasn’t established firm standards for gallery spectator conduct, the
TCCA’s decision to deny habeas relief on these grounds was not unreasonable
under 28 U.S.C. § 2254(d). Section 2254(d) only allows a district court to grant
habeas for a claim adjudicated on the merits in state court if the decision was
(1) “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States; or . . .
[(2)] was based on an unreasonable determination of the facts . . . .” § 2254(d)
(emphasis added). When the district court denies habeas on the merits, as here,
and the petitioner moves for a COA from us, as here, he “must demonstrate
that reasonable jurists would find the district court’s assessment of the




       6  Ruiz argues his appellate counsel was ineffective for failing to raise the
ineffectiveness of his trial counsel on direct appeal. But even assuming this assertion is
properly before us, see Davila v. Davis, 137 S. Ct. 2058, 2065 (2017), this contention similarly
falters because trial counsel was not ineffective.
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constitutional claims debatable or wrong” for the COA to issue. Slack, 529 U.S.
at 484.
                                        1
      Ruiz doesn’t demonstrate that it’s debatable whether the district court
properly applied “clearly established Federal law.” § 2254(d); Williams v.
Taylor, 529 U.S. 362, 380–82 (2000) (stating that the Supreme Court has only
clearly established precedent if it has “broken sufficient legal ground to
establish an asked-for constitutional principle”). It is undisputed that the
police officers in the gallery did not attend Ruiz’s trial as part of their
government duties, unlike in Holbrook v. Flynn. 475 U.S. 560, 569, 572 (1986)
(considering when the “courtroom security force” may generate impermissible
inherent prejudice). Instead the officers’ conduct here was “neither clearly
private nor clearly state action.” Jones v. Davis, 890 F.3d 559, 569 (5th Cir.
2018), cert. denied, 139 S. Ct. 795 (2019). Because the Supreme Court has “not
affirmatively resolve[d]” whether “Flynn might . . . apply to claims involving
purely spectator conduct,” the law Ruiz seeks to invoke isn’t clearly
established. Id.; see also Carey v. Musladin, 549 U.S. 70, 76 (2006) (“In contrast
to state-sponsored courtroom practices, the effect on a defendant’s fair-trial
rights of [private spectator conduct] is an open question in our jurisprudence.
This Court has never addressed a claim that such private-actor courtroom
conduct was so inherently prejudicial that it deprived a defendant of a fair
trial.”). The district court got it right; no reasonable jurists would debate the
district court’s refusal to grant habeas on this ground.
                                        2
      And Ruiz doesn’t show that the district court made an unreasonable
determination of the facts. § 2254(d). To start, Ruiz never argues that the
district court’s factual determinations were unreasonable. He merely notes
that the district court didn’t pinpoint how many officers were in the gallery
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during sentencing and opines that, if the court had made this factual finding,
it could have had an impact. But this amounts to a conclusory allegation that
the district court didn’t find enough facts, not that its factual determinations
were unreasonable. And, because our review is “limited to the record that was
before the state court that adjudicated the claim on the merits,” this line of
argument falls short. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 7 Because
reasonable jurists could not debate the district court’s conclusions on Ruiz’s
fair-trial claim, we decline to issue a COA.
                                               D
       Ruiz next claims that Texas’s death penalty procedure violates the Fifth,
Sixth, Eighth, and Fourteenth Amendments. “Under Texas law, the jury must
consider two special issues before the death penalty is imposed on a capital
defendant”; an “aggravating” special issue and a “mitigation” special issue.
Druery v. Thaler, 647 F.3d 535, 542 (5th Cir. 2011) (citing TEX. CODE CRIM.
PROC. ANN. art. 37.071(2)(b)(1)). And pursuant to Texas’s “12/10 Rule,” “the
trial court was [] required to instruct the jury that it must have at least 10 ‘no’
votes to answer ‘no’ on the aggravating special issue, and at least 10 ‘yes’ votes
to answer ‘yes’ on the mitigation special issue—either of which answers would
result in a life sentence, not death.” Id. (citing TEX. CODE CRIM. PROC.
§ 37.071(2)(g)). Ruiz’s trial court adhered to this procedure, and Ruiz was


       7  Moreover, Ruiz specifies no “meaningful facts or evidence” that would make the
district court’s characterization of the facts unreasonable. Sparks v. Davis, 756 Fed. App’x
397, 403 (5th Cir. 2018) (unpublished). Most notably, he points to no evidence that the jurors
were influenced by the presence of officers in the gallery during the trial’s punishment phase.
Jones, 890 F.3d at 571 (finding the mere presence of uniformed officers insufficient to support
an inherent prejudice claim where “the record before [it did] not suggest the police presence
intimidated the jury or disrupted the fact-finding process in any way”). And, in the
alternative, he fingers no evidence showing that “bedlam reigned at the courthouse” or that
the police officers created a “carnival atmosphere.” Cf. Sheppard v. Maxwell, 384 U.S. 333,
363 (1966) (granting habeas when the “trial judge did not fulfill his duty to protect [petitioner]
from the inherently prejudicial publicity which saturated the community and to control
disruptive influences in the courtroom”).
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sentenced to death. The TCCA rejected Ruiz’s contentions that this procedure
violated the Constitution, and the district court agreed on the merits. 8 Because
our precedent forecloses Ruiz’s contentions, and therefore reasonable jurists
could not debate the district court’s substantive determination, we deny a COA
here as well. 9 Druery, 647 F.3d at 543 (declining to issue a COA on this exact
claim because “no clearly established federal law called into doubt the Texas
death penalty statute” (cleaned up)).
                                              E
       Finally, Ruiz contends that the cumulative effect of the alleged
constitutional violations he’s suffered should be enough to warrant relief.
However, “[m]eritless claims . . . cannot be cumulated, regardless of the total
number raised.” Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996).

                                       *      *      *
       Having carefully reviewed the record and arguments of counsel, we hold
that Ruiz’s motion for a COA is DENIED. Ruiz’s counsel (J. Steven Bush) has
filed a motion to withdraw, and that motion is GRANTED. 10 The motion for
appointment of counsel set is carried with the case.




       8  The district court found a number of Ruiz’s underlying contentions procedurally
barred but addressed their merits in the alternative. We review the court’s resolution on the
merits.
        9 The Supreme Court recently held “the Sixth Amendment’s unanimity requirement

applies to state and federal criminal trials equally.” Ramos v. Louisiana, 140 S. Ct. 1390,
1397 (2020). But “the Sixth Amendment’s right to a jury trial requires a unanimous verdict
to support a conviction,” not a sentence. Id. (emphasis added). In other words, a jury must be
unanimous on the factfinding underlying a sentence, but not on the sentence actually
imposed. See Ring v. Arizona, 536 U.S. 584, 609 (2002) (finding a jury vote required for the
“factfinding necessary” for a sentence but not the sentence itself). Here, Ruiz’s jury was
unanimous on the factfinding underlying his conviction and sentence, including the special
fact issues at the sentencing phase. Because Ruiz’s conviction meets the Sixth Amendment’s
unanimity requirement, Ramos is of no moment.
        10 Ruiz’s counsel filed this motion during the pendency of this COA decision. We grant

it here, as opposed to in a separate order, out of fairness and efficiency concerns.
                                             13
