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Ex parte Ramos

COURT OF CRIMINAL APPEALS OF TEXAS
Nov 12, 2018
NO. WR-35,938-03 (Tex. Crim. App. Nov. 12, 2018)

Opinion

NO. WR-35,938-03

11-12-2018

EX PARTE ROBERTO MORENO RAMOS, Applicant


ON APPLICATION FOR A WRIT OF HABEAS CORPUS AND MOTION FOR STAY OF EXECUTION CAUSE NO. CR-1430-92-B IN THE 93RD DISTRICT COURT HIDALGO COUNTY ALCALA, J., filed a dissenting opinion. DISSENTING OPINION

I respectfully dissent from this Court's denial of the motion to stay the execution of Roberto Moreno Ramos, applicant, and its dismissal of his subsequent application for a writ of habeas corpus. The record in this case suggests that applicant has never been afforded a full and fair opportunity to litigate his post-conviction claim of ineffective assistance of counsel, and I would stay his execution to determine whether that complaint may be resolved by this Court on its merits. In this second subsequent habeas application, applicant now, for the first time, asserts that his trial counsel was ineffective for failing to investigate and present substantial mitigating evidence at the punishment phase of his capital murder trial. Applicant asserts that his trial counsel conducted no investigation for mitigation evidence, presented no evidence at the punishment phase, and in his punishment argument, never asked the jury to spare applicant's life. Applicant further contends that the initial habeas application filed by appointed habeas counsel, who presented only record-based claims, was so flawed as to wholly fail to constitute a habeas application. Due to recent changes in the law surrounding consideration of claims raised in subsequent writs that were forfeited as a result of inadequate assistance by appointed initial habeas counsel, applicant asserts that he should be afforded consideration of his substantial ineffective-assistance claim in the instant proceeding.

Although it appears that applicant has presented a possibly meritorious claim of ineffective assistance of counsel, the difficult question in this case is whether this Court may consider the substantive merits of applicant's claim in light of the procedural bar on subsequent writs. Because the answer to that question is not entirely straightforward and involves novel procedural arguments, I would grant applicant a stay of his execution and file and set this case to determine whether he is entitled to consideration of his claim on its merits and, if so, to consider whether his Sixth Amendment right to the effective assistance of counsel was violated. Because the Court does not do so and permits applicant's execution to go forward without considering these issues, I respectfully dissent.

I. Analysis

There are three habeas applications that must be understood to explain why it may be proper to consider the merits of the instant application.

First, applicant's initial application for a post-conviction writ of habeas corpus was filed in 1997, but it was a habeas application in name only because none of the grounds for relief presented were even cognizable on habeas review. The application alleged eight claims for relief pertaining to jury selection and jury instructions. The application, in total, spanned only fourteen pages. This Court denied the application, noting that the claims were all record based claims that either had already been raised and rejected on direct appeal or should have been raised on direct appeal. See Ex parte Ramos, 977 S.W.2d 616 (Tex. Crim. App. 1998). Specifically, in its order denying the application, this Court noted that "[f]ive claims involving jury selection and a claim involving the court's charge to the jury at the guilt stage of trial have already been raised and rejected on the direct appeal from this conviction. They will not be addressed on habeas corpus." Id. at 617. Regarding the jury-charge complaints, this Court similarly stated, "Two claims concern the court's charge to the jury at the punishment stage of the trial. These claims should have been, but were not raised on the appeal. Habeas corpus will not lie as a substitute for appeal. The claims will not be addressed. The application is denied." Id. The initial habeas application, therefore, was wholly inadequate in that none of the record-based claims could possibly have resulted in habeas relief.

Second, applicant filed his first subsequent habeas application in 2005, but it was narrowly limited to a single claim regarding a specific challenge about the Vienna Convention. In that application, applicant argued that he was entitled to receive a new trial or a new punishment hearing because Texas authorities had violated their obligations under Article 36 of the Vienna Convention of Consular Relations by failing to notify the Mexican consulate of applicant's arrest and prosecution. Although his arguments in the first subsequent application were technically limited to his Vienna Convention claim, in the course of presenting those arguments, applicant argued that the effect of the failure to notify the consulate was that trial counsel was ineffective at the punishment phase. Applicant noted that his defense counsel had failed to put on any evidence during the punishment phase, did not retain a mitigation specialist, and did not send an investigator to investigate his background in Mexico or California where applicant had previously resided. Applicant suggested that these failures by counsel, combined with the lack of consular assistance, were prejudicial to him because there was a substantial amount of mitigating evidence that was never presented at trial. In the course of the investigation preceding the subsequent habeas application, mitigation specialists had discovered that applicant was raised in extreme poverty in Mexico; that his father committed extreme physical abuse against his wife and children, including applicant; and that serious mental illness was prevalent in applicant's family. And a subsequent neurological examination indicated that applicant suffered from severe brain dysfunction, possibly of a genetic origin. A psychiatric examination led to the conclusion that applicant has Bipolar Disorder. Applicant summarized his argument, stating, "Trial counsel simply had no penalty phase strategy, and accordingly failed to present a penalty phase defense. . . . Given the compelling evidence of childhood abuse, extreme poverty, and family dysfunction uncovered by investigators hired by Mexico, the failure to put on any mitigation evidence before the jury cannot be considered a strategic choice." Applicant raised only his Vienna Convention claim, relying on a recent decision of the International Court of Justice as a new legal basis (commonly known as the "Avena case"), and believing that claim to be the only non-procedurally barred claim he could raise in that proceeding. This Court ultimately dismissed the -02 application, concluding that it did not overcome the bar on subsequent writs and was not entitled to consideration on its merits.

Third, the instant application is the second subsequent habeas application filed by applicant. In these pleadings, applicant now directly raises the claim that was implicitly suggested in his -02 application as part of his harm analysis for the Vienna Convention complaint: his trial counsel was ineffective for failing to investigate and develop mitigating evidence. In support of his claim, applicant alleges that trial counsel failed to discover mitigating evidence of his "cognitive impairment, brain dysfunction, debilitating symptoms of life-long mental illness and [a] childhood characterized by shocking brutality and desperate poverty." Applicant states that trial counsel "had conducted no life history investigation whatsoever. Trial counsel conducted virtually no investigation of culpability, and absolutely no investigation of future dangerousness or mitigation." At the punishment phase, trial counsel made no opening statement, cross examined only one of the State's witnesses, offered no evidence, and made "an almost incomprehensible five page closing argument in which he failed to offer even one reason to oppose a death sentence, never even mentioned [applicant], and failed to ask the jury to spare [applicant's] life." As a result, applicant asserts, "[t]he jury burdened with deciding whether [applicant] should live or die knew absolutely nothing about the life they were asked to take, imposing a death verdict under conditions that pose an intolerable risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty."

Regarding his history of being abused as a child, for example, applicant alleges that "the physical violence [he] endured at the hands of his father was unspeakable both in frequency—occurring several times per week—and in kind, including: [his] father regularly whipped him with a chain used on car engines, he would burn his hands on a hot stovetop, dunk his head in a pail used to wash dishes until [applicant] believed he would drown, force him to kneel on sand or small stones for long periods with arms outstretched while holding bricks, and hang him upside-down from his ankles, sometimes so long that [applicant] would defecate himself while hanging."

Applicant recognizes that this claim should have been raised in the initial habeas application, but initial habeas counsel failed to present it, and he further recognizes that he must overcome significant procedural hurdles in order to receive merits consideration of his claim in this subsequent habeas proceeding. But he contends that, since his prior subsequent habeas application, there have been changes in the law that create new procedural avenues to finally obtain substantive review of this claim. Specifically, applicant contends that, in its 2011 decision in Ex parte Medina, this Court recognized that utterly deficient performance by initial appointed habeas counsel may justify a holding that an applicant is entitled to a new initial habeas proceeding when the initial application that was filed was a nullity. Ex parte Medina, 361 S.W.3d 633, 634 (Tex. Crim. App. 2011). In Medina, after applicant's -02 habeas application had been rejected by this Court, this Court held for the first time that an initial habeas application was so deficient that it was not "in fact, an application for writ of habeas corpus under Article 11.071 of the Texas Code of Criminal Procedure." Id. at 634. In Medina, the facts were distinguishable from those in the instant case—there, habeas counsel had filed a bare-bones pleading containing only allegations unsupported by facts, ostensibly to force the habeas court to hold an evidentiary hearing on the claims. In resolving Medina's case, this Court reasoned that counsel's performance had deprived the applicant of his "one full and fair opportunity to present his constitutional or jurisdictional claims. . . . Not full because he is entitled to one bite at the apple, i.e., one application, and the document filed was not a proper writ application. Not fair because applicant's opportunity, through no fault of his own, was intentionally subverted by his habeas counsel." Id. at 642. Accordingly, this Court exercised its discretion to give Medina another bite at the apple by appointing new counsel and granting the opportunity for him to prepare and file a new state habeas application.

Applicant asserts that initial post-conviction counsel was "completely inexperienced in capital cases and new to post-conviction litigation. He did not even seek funds for investigative or expert assistance, conducted no investigation of either phase, failed to develop even one cognizable claim, missed the filing deadline and finally submitted a twelve-page petition containing seven record based claims, five of which had already been denied on direct appeal." In support of these allegations, applicant also submitted an affidavit from initial habeas counsel stating,

I did not seek funding for any investigative or expert assistance. I did not have a mitigation specialist, fact investigator, or co-counsel. I did not have any mental health evaluation of [applicant]. I spoke with trial counsel in the case but did not conduct any other investigation or interviews. I believe that I met [applicant] twice, but do not recall the dates or if it was before or after filing the initial state PCR writ application. I did not meet any of [applicant's] family nor collect primary records regarding his life history and family background.

Applicant asserts that the reasoning of Medina applies with equal force to his case such that he should be afforded an opportunity to litigate his ineffective-assistance claim in the instant proceeding. I recognize that Medina is distinguishable in the sense that this Court expressly stated in Medina that it was not creating a procedural rule that would apply to instances of incompetence by habeas counsel; rather, the holding in Medina was intended to apply only to intentional omissions or deficiency by counsel. See id. at 643. Nevertheless, applicant here has presented a plausible argument that the reasoning of Medina should be extended to apply to these circumstances in which his appointed habeas counsel failed to present even one cognizable claim. If the reasoning of Medina was based on the principle that it would be unjust to penalize an applicant who, through no fault of his own, lost his right to litigate his habeas claims, then that reasoning arguably should also apply to these circumstances. What difference does it make whether the deficiency by habeas counsel was strategic or inadvertent? In either event, if counsel fails to file an application that contains "sufficient specific facts that, if proven true, might entitle the applicant to relief," see TEX. CODE CRIM. PROC. art. 11.071, then the applicant has been unjustly deprived of his full and fair bite at the habeas apple. That is precisely what occurred here because initial habeas counsel failed to present any colorable issues that might entitle applicant to habeas relief, even though it is now apparent from the current record that a substantial ineffective-assistance claim existed and that claim was forfeited due to initial habeas counsel's failure to investigate it or raise it.

The instant case presents a more difficult complication that was not present in Medina, in that applicant has already filed one subsequent habeas application and also failed to raise the instant ineffective-assistance claim in that prior proceeding. This difficulty, in my estimation, would be best addressed by granting the stay of execution so as to more deliberately ascertain whether that absence of pleadings at that stage is dispositive here. Medina had not yet been decided at the time of the prior subsequent habeas proceeding in 2005, so arguably, counsel should not have been expected to include this ineffective-assistance claim that would have been procedurally barred under the then-prevailing law. Applicant's then-counsel presented only the Vienna Convention complaint that had then been only recently recognized. If the entire point of Medina was to ensure that capital habeas applicants receive one full and fair opportunity to litigate their post-conviction claims, then that principle would seem to be unaffected by the fact that applicant has once before sought habeas relief in a prior subsequent application at a time prior to Medina or that prior subsequent counsel did not attempt to raise what would have been determined to be a procedurally barred complaint. In any event, the issue of whether applicant may rely on Medina as a new procedural rule is a novel question for which the answer is not entirely clear, and this issue warrants further consideration by this Court.

II. Conclusion

The end result of all of this is that a possibly meritorious claim concerning the violation of applicant's Sixth Amendment right to counsel has never been reviewed on its merits by any court. Initial habeas counsel failed to present that claim, and due to the nature of interlocking state and federal procedural default rules, no court may now hear that claim absent application of some equitable exception. I have previously urged this Court to permit consideration of a substantial claim raised by capital habeas applicants under these circumstances as a means of ensuring that they are fully afforded their Sixth Amendment rights. See Ex parte Buck, 418 S.W.3d 98 (Tex. Crim. App. 2013) (Alcala, J., dissenting). To execute a person without permitting any meaningful review of a substantial claim of ineffective assistance "jeopardizes both the integrity of the underlying conviction and of this Court's judicial processes." Id. at 110. For all of these reasons, I would grant applicant a stay of execution and file and set this case to evaluate whether his substantial ineffective assistance claim may be considered on its merits. I respectfully dissent. Filed: November 12, 2018 Do not publish


Summaries of

Ex parte Ramos

COURT OF CRIMINAL APPEALS OF TEXAS
Nov 12, 2018
NO. WR-35,938-03 (Tex. Crim. App. Nov. 12, 2018)
Case details for

Ex parte Ramos

Case Details

Full title:EX PARTE ROBERTO MORENO RAMOS, Applicant

Court:COURT OF CRIMINAL APPEALS OF TEXAS

Date published: Nov 12, 2018

Citations

NO. WR-35,938-03 (Tex. Crim. App. Nov. 12, 2018)