Ruth v. Thaler, No. 4:2013cv00277 - Document 26 (S.D. Tex. 2013)

Court Description: MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Petition for a Writ of Habeas Corpus, denying 21 MOTION for Discovery, granting 22 MOTION for Summary Judgment With Brief In Support. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JOSEPH PERNELL RUTH, TDCJ-CID NO. 119886, § § § § § § § § § § § § § Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. CIVIL ACTION NO. H-13-0277 MEMORANDUM OPINION AND ORDER Joseph Pernell Ruth, proceeding pro se, filed a Petition for a Writ of Habeas Corpus by a Person in State Custody ("Petition") (Docket Entry No.1) challenging his state court conviction of murder. Pending before the court is Respondent Thaler's Motion for Summary Judgment Judgment") with Brief in (Docket Entry No. 22). Support ("Motion for Summary For the reasons explained below, the court will grant Thaler's Motion for Summary Judgment and will deny Ruth's Petition. The court will also dismiss Ruth's Motion for Leave Requesting Discovery Entry No. 21). ("Motion for Discovery") (Docket I. Factual and Procedural Background Joseph Pernell Ruth was charged with murder by a Texas state court, enhanced by a prior murder conviction. 1 A jury found Ruth guilty of murder,2 Ruth pled true to the enhancement, and he was sentenced to 99 years in prison. 3 The facts of the case are summarized by the Court of Appeals for the Fourteenth District of Texas. Appellant is married to Clara Ruth, and they have four children together. Several years after they were married, appellant began a romantic relationship with the victim, Kenjenea Williams. Appellant and Williams eventually had two children together, and both of these children are the same ages as two of his children with Clara. Appellant and Clara lived in a house on Greencraig Street in Houston, Texas, and appellant rented a nearby apartment for Williams. Sometimes appellant lived on Greencraig with Clara, and sometimes he stayed with Williams. At times, Williams's children lived with appellant and Clara on Greencraig, and at other times, they lived with Williams in her apartment. Angelica Ruth, appellant and Clara's oldest daughter, considered Williams's children to be her brother and sister. The living arrangements and relationship between appellant and these two women were complex and volatile. After Clara learned of the appellant's relationship with Williams, Clara, with appellant's help, tried to physically evict Williams from her apartment. At one lSee Indictment, The State of Texas v. Joseph Pernell Ruth, Cause No. 01938146, included in State Court Records, Docket Entry No. 23-28, p. 10. 2See Jury Verdict, The State of Texas v. Joseph Pernell Ruth, Cause No. 914967, included in State Court Records, Docket Entry No. 23-29, p. 23. 3S ee Judgment on Plea Before Jury, Court/Jury Assessing Judgment, The State of Texas v. Joseph Pernell Ruth, Cause No. 914967, included in State Court Records, Docket Entry No. 232 9, pp. 3 9 - 4 0 . -2- point, appellant obtained a restraining order against Williams, which he then ignored to continue his relationship with her. In early June 2002, Williams was arrested for cocaine possession, and appellant loaned her money to get out of jail. Appellant was very concerned that Williams repay this money, and he told Williams's cousin, "I promise you, man, if your cousin don't pay me back this money, y'all going to be missing a family member." On June 12, 2002 around 6:30 p.m., while Williams was at a car repair shop, appellant came up behind Williams and grabbed her and said, "Where' s my $4,000 b---(expletive)." The car repair shop owner testified that appellant seemed very angry and that Williams seemed scared and appeared to be trying to calm appellant. After he found out that she had paid for her car repair, appellant grabbed Williams's hand and said, "Let's go." Williams was killed shortly thereafter. According to a written statement by Angelica, who was nine years old at the time, she and her mother and siblings were at their home on Greencraig when appellant and Williams arrived. She heard appellant and Williams arguing and then saw Williams on her knees and appellant standing over Williams with a gun in his hand. Angelica heard Williams say, "Please, no, Joe." Appellant then said, "You going to take care of the kids?," and Williams responded, "Yes, I will." While Clara was gathering the children to take them out of the house, Angelica saw appellant and Williams, still arguing, go into the back yard. Clara, Angelica, and the rest of the children left. Angelica told the police she did not hear or see the shooting. Clara and the children went to a house where several of Clara's relatives lived, including her cousin and mother. According to Clara's cousin, who testified at trial, Clara showed up scared, crying, and hyperventilating and asked to speak to her mother. When Clara's mother came outside, Clara said to her, "Joseph shot Kenjenea." Clara explained that appellant and Williams had been arguing and that she saw appellant shoot Williams nine times in the head and many more times in the body. Clara's mother called 911 for her, and Clara told the 911 operator, "I left my house and my husband's girlfriend whatever was in the house and they started arguing. He pulled out a gun so I left. . I -3- don't know what's going to happen . . . . They're arguing. He has a gun. . They always have arguments." Police responded and arrived at the house on Greencraig at about 7:26 p.m. They found Williams dead in the back yard with a total of fifteen gunshot wounds, nine of which were in the head and face. Soon, relatives of both appellant and Williams began to gather at the scene. Around 10:30 that evening, appellant approached a parked Houston Police Department patrol car and told the officer, Joel Garza, "Officer, I'm wanted. I just killed my wife, the mother of my kids. Please take me in." Officer Garza was at the end of his shift completing paperwork so he could go home, and he really did not want to deal with appellant. He asked appellant, "What?," and appellant stated, "Please, officer, hurry up. They're coming. Her relatives are coming to kill me. Please, hurry up, take me in." Officer Garza, who knew nothing about the murder, thought he was dealing with a "nut case," so he planned on dropping appellant off at the main police station. Garza opened the back of his police car, and appellant got inside. According to Garza, during the drive, appellant was very talkative and told him that he killed the mother of his children because he had taken money out of savings to post bail for her and "he had it" with her. Appellant also told Officer Garza that he had gotten a protective order against her and that he was "tired of her stupid mess." Officer Garza called homicide and learned of the murder. He then took appellant to the homicide division. Appellant denied that he told Officer Garza that he murdered anyone and claims that he wanted to be taken into custody solely for protection from Williams's relatives. 4 The Fourteenth District Court of Appeals affirmed Ruth's conviction on June 21, 2005. 5 ("PDR") Ruth filed a Petition for Discretionary Review with the Texas Court of Criminal Appeals 4Ruth v. State, 167 S. W. 3d 560, [14th Dist.] 2005, pet. ref'd). 563 - 64 SId. at 571. 6See Petition, Docket Entry No. I, p. 3. -4- ----.-~--.------- ("CCA") ,6 which (Tex. App. -Houston was refused on March 22, 2006. 7 On March 30, 2007, Ruth filed an application for a state writ of habeas corpus. s The CCA remanded the case to the trial court. The state district court, reviewing entered the trial records, findings of after fact and conclusions of law recommending that the habeas application be denied. (Docket Entry No. 23-37, p. 5-9) The state habeas application with the findings and records was returned to the CCA, which denied the application without a written order on January 16, 2013. 9 Ruth filed the federal petition before this court on January 30, 2013. 10 II. A. Standard of Review Summary Judgment Summary judgment is appropriate if the movant establishes that there is no genuine dispute about any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Disputes about material facts are "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 7Id. SSee Application for Writ of Habeas Corpus, Joseph Pernell Ruth v. The State of Texas, Application No. WR-75,848-02, Docket Entry No. 23-33, p. 2-10. 9S ee Application for Writ of Habeas Corpus, Joseph Pernell Ruth v. The State of Texas, Application No. WR-75,848-02, Docket Entry No. 23-37, p. 1. 10 See Petition, Docket Entry No. 1. -5- (1986) . The Supreme Court has interpreted the plain language of Rule 56 (c) to mandate the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. S. Ct. 2548, 2552 Celotex Corp. /I v. Catrett, 106 (1986) A party moving for summary judgment "must \ demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant' s case. 37 F.3d 1069, 1075 (5th Cir. 1994) 106 S. Ct. at 2553). If /I Little v. Liquid Air Corp., (per curiam) (quoting Celotex, the moving party meets this burden, Rule 56(c) requires the nonmovant to show that specific facts exist over which there is a genuine issue Celotex, 106 S. Ct. at 2553-54). for trial. Id. (citing In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence./1 2097, 2110 B. Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. (2000). Presumptions Applied in Habeas Cases 28 U.S.C. § 2254, as amended Effective Death Penalty Act of 1996 by the Antiterrorism ("AEDPA/I), provides and "[t]he statutory authority of federal courts to issue habeas corpus relief for persons in state custody./1 Harrington v. Richter, 131 S. Ct. -6- --_.-----_._---- 770, 783 When considering a summary judgment motion, the (2011). court usually resolves any doubts and draws any inferences in favor of the nonmoving party. amendments to 28 U.S.C. Reeves, 120 S. Ct. at 2110. § However, the 2254 contained in the AEDPA change the way in which courts consider summary judgment motions in habeas cases. In a habeas proceeding, 28 U.S.C. findings of correct./1 rule. fact made by a state § 2254(e) (1) mandates that court are "presumed to be This statute overrides the ordinary summary judgment Smith v. CockrelL 311 F.3d 661, 668 (5th Cir. 2002) (overruled on other grounds by Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)). A court will accept findings made by the state court as correct unless the habeas petitioner can rebut the presumption of § correctness 2254 (e) (1) by clear and convincing evidence. 28 U.S.C. ("The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence./I) . The provisions of § 2254(d) set forth a "highly deferential standard for evaluating state-court rulings. S. Ct. 2059, 2066 n.7 (1997). /I Lindh v. Murphy, 117 A federal court cannot grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court 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 of the United States; 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. -7- 28 U.S.C. § A decision is contrary to clearly established 2254(d) federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set Taylor, of 120 materially S. Ct. indistinguishable 1495, 1519-20 facts. Williams A decision (2000). is v. an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal principle . but unreasonably prisoner's case." applies that principle to the facts of the Id. at 1523. In reviewing a state court's determination regarding the merit of a petitioner's habeas claim, a federal court cannot grant relief if "fair-minded jurists could disagree on the correctness of the state court's decision. II Richter, 131 S. Ct. at 786 (internal quotation marks omitted) . III. Analysis Ruth presents the following claims: 1. Denial of a fair trial and due process because Ruth's trial counsel "failed to challenge for cause or use a peremptory strike on two venire members who could not consider the minimum punishmenti" 2. Denial of a fair trial and due process because Ruth's trial counsel "failed to challenge for cause or peremptorily a venire member" who claimed to give more credibility to a testifying police officer than Ruth, despite contrary instructions from the judge - this venire member served on the jurYi 3. Denial of Effective Assistance of Counsel because Ruth's trial counsel "fail [ed] to prepare for trialill -8- 4. Denial of Effective Assistance of Counsel because Ruth's trial counsel did not prepare for the prosecution's witness during the punishment phase of the trial; 5. Denial of Effective Assistance of Counsel because appellate counsel failed to: a. "raise record based claims on later federal review (appellate review)" namely: (1) (2 ) "ineffective assistance of counsel at trial for failing to strike jurors [or] put on a valid defense"; (3) trial court error in failing to grant a mistrial; (4) trial court error in failing to quash the jury panel; (5) b. prosecutorial misconduct; trial court error in failing to "give the jury charge on sudden passion adequate cause"; and properly brief the 911 claim regarding testimonial nature of the 911 call; 6. Ruth was denied the right to effective assistance of counsel as guaranteed by the 6th and 14th amendments of the u.s. Constitution by his counsel's failure to put on a valid defense based on the facts of the case; 7. Ruth's "right to confrontation . was violated by court admitting [Ruth's] wife's 911 call;" and 8. "Trial counsel was ineffective for failing to bring an affirmative defense and an expert on family violence where [Ruth] was a victim of family violence at the hands of deceased for several years. 1111 llSee Petition, Docket Entry No.1; see also Memorandum of Law in Support of 28 U.S.C. § 2254 ("Memorandum of Law"), Docket Entry No.4. -9- A. Procedurally Barred Claims In his Motion for Summary Judgment, Thaler argues that Ruth's claims (1) for ineffective appellate counsel's assistance failure counsel's failure to of raise strike [claim 5.a.2J and (2) trial to counsel jurors or put the based issue on a of on trial valid defense counsel's failure to raise the defense of Battered Partner Syndrome and call an expert witness [claim 8] are procedurally barred because they were not required by 28 U.S.C. Under 28 available courts. 1997) . U.S.C. state § exhausted as 2254(b).12 § 2254, remedies a habeas petitioner must exhaust before See Nobles v. Johnson, seeking relief in the 127 F.3d 409, 419-420 federal (5th Cir. To exhaust his state remedies the petitioner must fairly present the substance of his claims to the state courts, and the state's highest criminal court must have an opportunity to review the merits of the claims. 509, 512-13 (1971) 1990) . In Texas i Id. citing Picard v. Connor, 92 S. Ct. Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir. a petitioner satisfies this requirement by properly filing a PDR with the Texas Court of Criminal Appeals or, in a post-conviction matter, by filing a state application for a wri t of habeas corpus in state district court under TEX. CODE CRIM. P. art. 11.07, which forwards Criminal Appeals. the application to the Court of See Richardson v. Procunier, 762 F.2d 429, 431- USee Motion for Summary Judgment, Docket Entry No. 22, pp. 1012. -10- 32 (5th Cir. 1985). state court system The fact that an appeal has IIbeen throughll the is not enough to satisfy the exhaustion requirementi the highest court must have a reasonable opportunity to consider the merits of each of the claims presented in a federal habeas petition. Picard, 92 S. Ct. at 512. The court has reviewed the state records and has found that the following claim was presented in Ruth's PDR: The Court of Appeals' resolution of Ruth's claims regarding the admission of a 911 tape, during the guilt phase of his murder trial, violated his right of confrontation under both the Texas and Federal Constitutions. Ruth v. State, No. 1048-05, PDR, at 5. The following claims were presented in Ruth's application for a writ of habeas corpus: 1. Ruth's trial counsel was ineffective for failing to challenge two biased jurors who could not consider minimum punishment; 2. Ruth's trial counsel was ineffective for failing to challenge a juror who was biased against Ruth; 3. Ruth's trial counsel was ineffective for failing to prepare for trial; 4. Ruth's trial counsel was ineffective in failing to interview a punishment witness before trial; 5. Ruth's trial counsel was ineffective in failing to properly object to oral hearsay of a witness who was unavailable at trial; 6. Ruth's trial counsel was ineffective in failing to challenge the State's theory of "excited utterance U and by opening the door on a witness statement. Counsel was also ineffective by being rude and unpreparedi -11- state 7. Ruth's appellate counsel was ineffective by failing to raise claims based on the following objections raised by trial counsel: prosecutorial misconduct, ineffective assistance of trial counsel; trial court's failure to grant jury charge of "sudden passion"; and trial court's failure to quash jury panel; and 8. Ruth's trial counsel was ineffective in failing to put on a valid defense in that the defense went against the great weight of evidence showing that Ruth had some culpability for the offense for which he was tried. Ex parte Ruth, No. 75,848-02, at 00006-00014. Missing from both Ruth's PDR and his state habeas application are Ruth's federal habeas attorney's alleged failure claims regarding to timely raise (1) the his appellate issue of trial counsel's failure to strike jurors or put on a valid defense and (2) trial counsel's failure to raise the defense of Battered Partner Syndrome and call an expert witness. In most cases this action would be subj ect to dismissal without prejudice in order to allow Ruth the opportunity to exhaust all of his claims through the state habeas process. Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir. 1998), citing Rose v. Lundy, 102 S. Ct. 1198 (1982). However, Ruth has already filed a state habeas application and may not file another one challenging the same conviction asserting claims that could have been previously raised. TEX. CODE CRIM. P. art. 11. 07 § 4. Federal courts have consistently held that Texas's abuse-of-writ rule is ordinarily an "adequate and independent" procedural ground on which to base a procedural default ruling. Matchett v. Dretke, 380 F.3d 844, 848 -12- (5th Cir. 2004); Henderson v. Crockwell, 333 F.3d 592, 605 (5th Cir. 2003); Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999). Claims are therefore subject to dismissal pursuant to a procedural bar where there are no remedies available in the state courts. Fuller v. Johnson, 158 F.3d 903, 906 (5th Cir. 1998). Ruth may only overcome his procedural default by demonstrating cause and prejudice or that failure to consider the claim would result in a fundamental miscarriage of justice. Ibarra v. Thaler, 687 F.3d 222, 225 (5th Cir. 2012), citing Coleman v. Thompson, 111 S. Ct. 2546, 2562-63 (1991); Morris v. Dretke, 413 F.3d 484, 491-92 (5th Cir. 2005). establishing efforts to that Cause is demonstrated some obj ecti ve external his claim to the present Quarterman, 534 F.3d 454, 463 whether prej udice has been shown. the factor state (5th Cir. 2008). fails to show cause for the default, 1007, 1011 (5th Cir. 1998). by petitioner impeded courts. Moore his v. If the petitioner the court need not consider Meanes v. Johnson, 138 F.3d Fundamental miscarriages are limited to cases where it is shown that the petitioner is actually innocent of the crime. 2012) . McGowen v. Thaler, 675 F.3d 482, 499-500 (5th Cir. This requires factual proof that the petitioner did not commit the offense for which he was convicted. Id. In his response, Ruth states that he is incarcerated and must rely on custodial officials to mail his pleadings No. 25, at 16-17). He contends that his (Docket Entry confinement is an impediment and is cause for his failure to present these claims In -13- the state courts. Id. Ruth's status as a pro se habeas petitioner does not excuse his failure to comply with the state's procedures Saahir v. Collins, for exhausting his claims. (5th Cir. argues 1992) that i his see also Ibarra, claims are 956 F.2d 115, 118 Ruth also 687 F.3d at 227. meritorious. The court will not consider this argument because Ruth has failed to show cause for the default. Meanes, 138 F.3d at 1011. Ruth also fails to show that the bar will result in a fundamental miscarriage of justice because he presents no proof that he is actually innocent of the crime. B. McGowen, 675 F.3d at 499-500. Claims: Ineffective Assistance of Counsel The primary focus of Ruth's federal petition for a writ of habeas corpus is that he was denied effective assistance of counsel at trial and on appeal. To prove ineffective assistance of counsel Strickland v. Washington provides a two-prong test that requires the defendant to prove (1) deficient performance by counsel and (2) actual prejudice to the defense as a result of the deficient performance. Strickland, 104 S. Ct. 2052 at 2064. To meet the first prong Ruth must prove that the errors were so serious that counsel was not functioning as the Consti tution. Id." [T] here is a "counsel" guaranteed by the strong presumption that the performance [of counsel] falls within the wide range of reasonable professional assistance." Carter v. (1997) . -14- Johnson, 131 F.3d 452, 463 To meet the second prong Ruth must errors were so serious as to deprive trial whose result is reliable./I prove [Ruth] that "counsel's of a fair trial, a Strickland, 104 S. Ct. at 2064. A "mere possibility/l that a different result might have occurred is not enough to demonstrate prejudice. 452, 463 (5th Cir. 1997). under § 2254 (d) Lamb v. Johnson, 179 F.3d Application of Strickland's second prong compels the court to ask "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard./I Richter, 131 S. Ct. at 788. If the Court can surmise a reasonable explanation, then Ruth's burden is not met. Id. The Court will now apply this heightened Strickland standard to each of Ruth's claims for ineffective assistance of counsel. See Strickland, 104 S. Ct. 2052 at 2064. C. Claims 1 and 2: Failure to Strike Jurors In his first claim Ruth asserts that his trial counsel was ineffective because counsel "failed to challenge for cause or use a peremptory strike on [Jurors 16 (Singleton) and 38 (DeLeon)] who could not consider the minimum punishment./ll3 A trial attorney can be considered ineffective for failing to challenge veniremembers who specifically state that they cannot be fair and impartial to the defendant. 2006). Virgil v. Dretke, 446 F.3d 598, 609-610 (5th Cir. However, an attorney's "conscious and informed decision on l3See Memorandum of Law, Docket Entry No.4, p. 4 (p. 3 by his numeration) . -15- trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness./1 Quarterman, 528 F.3d 336, 341 Skinner v. (5th Cir. 2008), quoting Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003). The trial court found that Juror 16 generally indicated that he could not consider the minimum punishment of 5 years as appropriate for someone convicted of murder; however, the response was not more fully explored. regard to Juror 38, (Docket Entry No. 23-37, p. 6) With the court found that it was not completely clear whether he could consider 5 years. Id. The trial court also noted that Ruth had been previously convicted and that his minimum punishment § was 12.42 (c) (1) 15 years. (West 2011) See also Tex. Penal Code (15-years-to-life is punishment range for defendant convicted of a first-degree felony with a prior felony conviction). Pursuant to the trial court's findings, the CCA found that none of the challenged veniremembers unequivocally stated that they were unable to serve as a fair and impartial juror. (Docket Entry No. factual finding. 23-37, p. 7) The issue of juror bias is a Virgil, 446 F.3d at 610 n.52, citing Patton v. Yount, 104 S. Ct. 2885 (1984). Under the AEDPA this court can only overturn the implicit factual findings of the state court if Ruth rebuts the presumption of correctness "by clear and convincing standards. U.S.C. § 2254 (e) (1). -16- /I 28 Ruth presents no evidence that his attorney was deficient in failing to strike the two jurors. The trial record shows that during voir dire the judge asked the jurors whether they could consider a minimum five-year sentence as well as a maximum life sentence. Voir Dire at 76-87 [not Each scanned]. of the panelists, including Singleton and DeLeon, answered with either a yes or no without further elaboration. rd. Ruth's attorney later questioned the juror panelists at length about their backgrounds and possible biases. he struck a The record also shows that rd. at 138-185. juror for cause. rd. at 186 -187 i see also Appeals Record at 69 [not scanned]. The trial judge's question regarding whether the jurors could consider a five-year minimum sentence is proceeding because fifteen-year convicted. Ruth was Tex. Penal Code § facing a 12.42 (c) (1) inapplicable in this minimum (West 2011) if Moreover, there was no statement from any of the jurors that they could not be fair and impartial. See Virgil, 446 F.3d at 609-610. Even if Ruth could show that his trial counsel's performance was deficient, Strickland test, he fails which to satisfy requires performance prejudiced his defense. 2064. a the second showing that prong the of the deficient See Strickland, 104 S. Ct. at Ruth was found guilty based on eyewitness statement-s that placed him at the scene of the crime threatening and pointing the murder weapon at the victim. Ruth made a voluntary statement to a police officer admitting that he had shot the victim. -17- After being found guilty, Ruth was sentenced to 99 years in prison. Ruth must show that his sentence would have been "significantly less harsh" Charles v. Thaler, but for his attorney's errors. 629 F.3d 494, 499 (5th Cir. 2011), citing Dale v. Quarterman, 553 F.3d 876, 880 (5th cir. 2008) / quoting Spriggs v. Collins, (5th Cir. 1993). 993 F.2d 85/ 88-89 In determining whether an attorney's deficient performance prejudiced the defense, the court considers the following: "the actual amount of the sentence imposed on the defendant by the sentencing judge or jurYi the minimum and maximum sentences possible under the relevant statute or sentencing guidelines, the relative placement of the sentence actually imposed within that range, and the that various were relevant aggravating factors properly sentencer." Miller v. Dretke, 420 F.3d 356, 365 mitigating considered by and the (5th Cir. 2005) quoting Spriggs at 88-89. While Ruth was given almost the maximum possible sentence, the record shows that he shot the victim fifteen times after an extended confrontation in which she begged him not to hurt her. Moreover, this was not Ruth's first murder. phase of the trial, During the punishment the jury heard testimony that Ruth had been previously convicted of murder and had been sentenced to thirty years in the Texas Department of Corrections in 1980. Entry No. 23-30, pp. 23-25) (Docket He was also convicted of two counts of attempted murder and sentenced to ten years in each case. rd. The jury also heard testimony from one of the attempted murder victims, -18- (Docket Entry No. 23-30, pp. 74- Vivian Gray, Ruth's first wife. 118) Gray described Ruth's violent and abusive behavior towards her, which led to their estrangement and divorce. Id. at 84-94. Gray then described the 1980 murder and attempted murder in which Ruth used a gun to fire multiple shots at his wife's family in the presence of his infant son. Id. at 95-100. Gray and her mother were hospitalized after being gravely wounded in the incident. at 100-102. Id. Her stepfather, who was also present at the shooting, died from his gunshot wounds. Id. at 101. The jury's sentence is justified by the brutal and heinous manner in which Ruth shot and murdered Kenjenea Williams. 629 F.3d at Ruth's 499. record of criminal Charles, behavior, which includes prior acts of domestic violence and a prior murder and attempted murders, further justifies the jury's decision. also McGruder v. Puckett, 954 F.2d 313, 317 Id. (5th Cir. i see 1992) (defendant's life sentence without parole for auto burglary was not disproportionate to the gravity convictions for armed robbery). that the alleged bias of the defendant's prior Ruth fails to provide evidence affected his ultimate sentence, and consequently does not satisfy Strickland's second prong. In his second claim regarding the failure to strike a juror, Ruth asserts that his counsel was ineffective because he "failed to challenge (A. for cause Rodriguez)] II who or use a claimed peremptory to give strike more on [Juror credibility 12 to -19- -------------------- --------------.-- a testifying police officer than Ruth, despite contrary instructions from the judge. 14 Ruth points out that trial counsel challenged veniremember Fisher, who had expressed a tendency to give a police officer more credibility.15 Ruth's counsel did not challenge Juror 12 who also expressed a similar sentiment. Ruth draws a comparison to Virgil where the court found that an attorney's failure to challenge two jurors - who expressed bias against the defendant - operated as ineffective assistance of counsel. 16 See Virgil, 446 F.3d at 609- In Virgil one juror was biased due to a relationship with a 610. law enforcement officer, defendant with a while the second was biased against a prior conviction due mugging, which "weighed" on him. to his mother's Id. at 609-610. recent The two venire- members in Virgil expressed concrete reasons for a bias; these concrete reasons were implicitly unlikely to be able to be put aside. See id. The Fifth Circuit later emphasized that the biased Virgil jurors were asked questions in response to which they explicitly admitted a likely inability to be "fair and impartial" due to these biases. See White v. Quarterman, 275 F. App'x 380 (5th Cir. 2008). 14See Petition, Docket Entry No. I, p. 6. 15See Memorandum of Law, Docket Entry No.4, p. 19. 16See id. at 24. -20- Unlike Virgil, in this case Ruth provides no evidence of any comparable concrete bias that Juror 12 could not set aside. id. See A juror's statement that he is more inclined to believe one witness over another who has a different profession or background is not a showing of bias. Virgil, Ruth's 446 F.3d at 609-610. claim regarding Juror 12 is based on facts that show no more than a "mere possibility" and fall short of the burden Ruth must satisfy for the second Strickland prong. See Lamb, 179 F.3d at 463. Ruth cites Texas case law in support of his argument of juror bias. 17 The Supreme Court has stated many times that "federal habeas corpus relief does not lie for errors of state law." v. Quarterman, 503 F.3d 408, 413 Wood (5th Cir. 2007), quoting Estelle v. McGuire, 112 S. Ct. 475, 480 (1991), quoting Lewis v. Jeffers, 110 S. Ct. 3092, 3102 (1990). Ruth fails to provide "clear and convincing evidence" for any of his claims of juror bias. presents no persuasive See 28 U. S . C . argument of § 2254 (e) (1) juror bias that heightened burden of the AEDPA and Strickland standard. Ruth meets the The state court's adjudication of Ruth's claims regarding his attorney's jury selection was not a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, established by the Supreme Court of the United States. as 28 U.S.C. 17See Petitioner's Motion in Opposition of Summary Judgment ("Petitioner's Opposition"), Docket Entry No. 25, p. 31. -21- § Nor has Ruth shown that the state court made an 2254 (d) (1) . unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254 (d) (2). Therefore, claims 1 and 2 will be dismissed. D. Claim 3: Ruth Failure to Prepare for Trial alleges that he was denied effective assistance counsel because trial counsel did not prepare for trial. 18 of Ruth refers to a colloquy between the court and counsel in which his attorney sought a continuance indicating that he was not prepared for trial. 19 However, Ruth does not identify deficiencies in his attorney's performance. not raise a fact issue regarding his any specific His bald assertions do counsel's performance. Smallwood v. Johnson, 73 F.3d 1343, 1351 (5th Cir. 1996). allegations are conclusory because counsel failed to prepare i he does not state Ruth's how his nor does he provide any evidence to demonstrate that counsel was not prepared for trial. Contrary to Ruth's argument that his attorney failed to prepare for trial, the trial record shows that his attorney filed a Motion to Suppress Statements, a Motion for Discovery of Punishment Evidence, a Motion for Discovery, a Motion for Discovery of Exculpatory and Mitigating Evidence, a Motion to Testify Free of 18See Petition, Docket Entry No. I, p. 7-7a. 19See Petition, Docket Entry No. I, p. 7-7ai Memorandum of Law, Docket Entry No.4, pp. 29-33. -22- see also Impeachment, and a Motion in Limine more than five months prior to trial. (Docket Entry No. 23-28, pp. The 15-38) record also reflects that the State sent its Notice of Intent to Use Extraneous Offenses and Prior Convictions more than two weeks before trial as well No. as an undated notice 23-28, pp. 66-67, of Brady20 material. denied after conducting a hearing. However, the court Entry Upon receiving the Brady material 72-75) Ruth's attorney filed a motion for continuance, 17) (Docket did which the court (Docket Entry No. 23-2, pp. 4- allow Ruth's attorney several offense reports before going to trial. to examine Id. at 14-15. The court also granted the Motion to Testify Free of Impeachment. Id. at 16. Ruth contends that counsel's alleged failure to prepare is evidenced by his elicitation of "harmful testimony," but points to no specific testimony, other than the cross-examination addressed below in this Memorandum Opinion and Order. Ruth presents only conclusory statements and repetition of claims he states elsewhere in his Petition. 21 specifics [are] "[C]onclusory subj ect to allegations summary dismissal. Allison, 97 S. Ct. 1621, 1629 (1977). II unsupported by Blackledge v. This court can find no merit to Ruth's claim because he has failed to show that his attorney's performance was constitutionally deficient. Miller v. Johnson, 200 2°Brady v. Maryland, 83 S. Ct. 1194 (1963). 2lSee id. -23- F.3d 274, 282 (5th Cir. 2000), 1008 (5th Cir. 1983). citing Ross v. Estelle, 694 F.2d The lack of any evidence to support Ruth's allegations falls far short of the Strickland standard, and Ruth's claim of inadequate assistance of counsel by failure to prepare for trial shall be dismissed. E. Claim 4: Failure to Prepare for Punishment Phase Ruth alleges that trial counsel failed to prepare to crossexamine Vivian Gray, who testified for the State regarding her stepfather's murder, the offense for which Ruth was convicted in 1980. 22 Ruth alleges that his trial attorney's poor preparation elici ted damaging testimony from the witness. 23 Before Ruth's attorney cross-examined the witness, the State's attorney had the witness explain in detail how Ruth had shot the witness's hospitalizing stepfather. 24 the witness and her mother and family killing her Following this direct examination, Ruth's attorney cross-examined the witness. 25 [Counselor] [Witness]: The exchange included the following: Did your mom like Joe or not? She liked Joe. 22See Petition, Docket Entry No.1, p. 7-7a; Memorandum of Law, Docket Entry No.4, pp. 34-37. see also 23See id. 24See Guilt/Innocence Punishment, The State of Texas v. Joseph Pernell Ruth, Cause No. 914967, included in State Court Records, Vol. 14, pp. 98-102. 25Id. at 105-118. -24- [Counselor] : Even after he almost poked your eye out and bashed you in the head with a beer bottle, she liked him then? [Wi tness] She still likes Joe. [Counselor] [Ruth] was definitely the first shooter right, he fired first? [Wi tness]: Yes. [Counselor]: you, right? [Witness] And that this was just a blatant attempt to kill Yes. [Counselor] So why do you let [your son] associate with this crazy person [Ruth]? [Wi tness]: [Counselor] that? [Witness] [Counselor] [your son]? [Witness] [Counselor] [Witness]: It's his dad. Well, I mean, you must be just terrified about Of course. But I thought you were very concerned about I am. Make any reports to the police? No. [Counselor] So, how did your mom get from Wal-Mart to the car to get your gun from you to engage Joe Ruth in combat? [Witness] : I just remember the mother walking out. screaming, I remember my [Counselor]: No, I'm trying to understand this. [Ruth] standing there just shooting at y'all and your mom -25- is [Ruth] had placed [their son] on the hood of the [Witness] car. [Counselor] I got that part. And then your mom comes over to the car and in the middle of a hail of bullets manages to get your gun from you and fight back and shoot [Ruth] i is that what you Ire saying?26 "'Strategic choices made after thorough investigation of law and facts relevant unchallengeable . . to I " plausible Riley v. Dretke Cir. 2004), quoting Wiggins v. Smith l are options 362 l virtually F.3d 302, 305 (5th 123 S. Ct. 2527, 2535 (2003). "There are countless ways to provide effective assistance case. Even the best criminal defense attorneys would not defend a particular client in the same way." 2065. in any The record reflects discredit the witness Strickland, 104 S. that Ruth's illustrating by attorney was her concerning the well-being of her child. reckless Ct. at trying to behavior Ruth/s attorney may also have been trying to make the witness/s testimony seem implausible. Since direct examination had already exposed the jury to the story, it is unlikely that the attorney/s cross-examination prejudiced Ruth's defense by exploring the story further with the witness. Given the context of the witness's prior testimonYI the attorney's questions are based on the tactic of discrediting the witness. Therefore, the record reflects that Ruth's defense was not prejudiced by his attorney's questions because they were based on trial tactics that were not so ill chosen that Ruth was denied a 26Id. at 115-118. -26- -------~-"- ----.-.------ . ¢ " fair trial. Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995). Because Ruth fails on both the first and second prong of Strickland standard, this claim will be dismissed. the Strickland, 104 S. Ct. at 2064. F. Claim 6: Failure to Put on a Valid Defense Ruth alleges that trial counsel ~fail[ed] defense based on the facts of the case. p. 10) ff to put on a valid (Docket Entry No.1, Ruth contends that his attorney was ineffective because he put on a defense that Ruth did not do the crime. He argues that the defense strategy went against the great weight of the evidence, which demonstrated that Ruth was guilty. Ruth contends that his at torney should have either pursued a temporary insanity defense or self-defense. pp. 4 - 6. See also Memorandum of Law, Docket Entry No. 4-1, Ruth further contends that his at torney' s theory was contrived, hastily and it permeated the entire trial with obvious unfairness. ~A strategy conscious cannot and be ~defensi ve ff rd. at 5. informed the basis decision for on trial tactics constitutionally and ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness. F.3d 1115, 1122 (5th Cir. 1997) 199, 206 (5th Cir. 1983) F.3d 341. at Defense ff Green v. Johnson, 116 (quoting Garland v. Magio, 717 F.2d (on rehearing)). attorneys have See also Skinner, 528 finite resources to investigate their cases and must make choices concerning which -27- lines of defense to pursue. (5th Cir. The 1983) Moreno v. Estelle, 717 F.2d 171, 177 court must look at the totality of circumstances before assessing the reasonableness of the attorney's strategic choices. rd. Ruth provides no evidence that his attorney's defensive theory was permeated with unfairness. His argument is contradicted by an affidavit he submitted from his sister in which she attests that the attorney met with Ruth's wife Clara and other family members before trial. (Docket Entry No.3, p. 1) During the meeting Clara repeated that "everyone thought that she did it." Ruth's (Docket attorney responded, "that could be our line of defense." Entry No.3, p. 1) The trial transcript reflects that the attorney had a well organized opening statement in which he presented a narrative describing the difficult and often confrontational relationships between Ruth, pp. 11-17) Clara, and the victim. (Docket Entry No. 23-13, The attorney informed the jury that the evidence would show that there were episodes of domestic violence in which the victim was often the aggressor. rd. The attorney also indicated that Ruth had told Clara that he wanted a divorce and that Clara had told someone that she had bought a gun and was "going to blow that bitch's brains out." rd. at 17. The attorney also stated that the evidence would show that she told two people that she was responsible for the murder after it happened. -28- rd. The attorney concluded his evidence. Id. at 17-19. The argument state by district pointing court out flaws concluded that in the Ruth State's received effective assistance of trial counsel and implicitly found that the attorney had developed and used a reasonable, (Docket Entry No. 23-37, p. 8) strategy. tenable trial The record shows that Ruth's attorney had developed a defense based on the theory that the victim had previously threatened Ruth and that Ruth's wife may have perpetrated the crime. The strategy was not so ill chosen that it denied Ruth a fair trial. Skinner, 528 F.3d at 341. In his response Ruth contends that his attorney failed to bring an affirmative defense on family violence. Ruth argues that he and his family urged his attorney to call an expert on family violence to testify regarding the decedent's history of violence toward Ruth and his family. 27 "[C] omplaints of uncalled witnesses are not favored in federal habeas corpus review because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have stated are largely speculative." Cir. 2009) 2000) . i Day v. Quarterman, 566 F.3d 527, 538 (5th see also Wilkerson v. Cain, 233 F.3d 886, 892 (5th Cir. To pass the Strickland standard Ruth must show that a specific witness would have testified and the testimony would have been favorable. See Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 27See Petitioner's Opposition, Docket En t ry No. 25 ,pp. 42 - 44 . -29- 2002) . Ruth provides no specific witness; he suggests merely a "Hypothetical or theoretical testimony will theoretical expert. not justify the issuance of a writ." 813, 819 (5th Cir. 1986) Martin v. McCotter, 796 F.2d ( internal citations omitted) . Moreover, it is clear from the record that Ruth threatened the unarmed victim with a gun and that the victim begged for mercy. The violent nature of the crime would have defeated an argument that Ruth was acting in self-defense. adjudication of Ruth's claims See id. regarding his The state court1s attorney's trial strategy was not a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as established by the Supreme Court of the United States. § 2254 (d) (1) . 28 U.S.C. Nor has Ruth shown that the state court made an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. G. Claim 7: 28 U.S.C. § 2254 (d) (2) . confrontation was Right to Confrontation Violation Ruth alleges that his violated by court admitting Entry No.1, p. 11) "right to [Ruth's] wife's 911 call." (Docket Ruth alleges that his wife's 911 phone call was testimonial in nature because when she made the call she was 15 minutes away from the scene of the crime. 28 Ruth raised this issue on direct appeal, and the Texas courts rejected it. The Fourteenth Court of Appeals reviewed 28See Memorandum of Law, Docket En t ry No. 4 ,pp. 48 - 49 . -30- the transcript and found the following statements from Ruth's wife in her 911 call: "I left my house and my husband's whatever was in the house and they started arguing. They're arguing. have arguments./I He I don't know what's going to pulled out a gun so I left. happen. girlfriend They always He has a gun. Ruth, 167 S.W.3d at 564. The Fourteenth Court of Appeals observed that the pattern and circumstances of the call conformed to that of a person summoning the police after witnessing a crime in progress in her home. 167 S.W.3d at 569. Ruth, Such statements are made not in response to police interrogation, but with the purpose of obtaining help. Id. The Court of Appeals concluded that "Clara's statements to the 911 operator were not testimonial, and therefore the trial court's admission of testimony regarding these statements did not violate [Ruth's] confrontation rights./I Id. The Court further held that admission of the 911 tape would be harmless even if it were made in error because Clara had also made statements to her mother that Ruth had shot the victim multiple times. Id. at 570. This coupled with other evidence, including Ruth's statements to the police, was far more incriminating. The Court concluded that the admission of the tape did not contribute to Ruth's conviction. The Supreme Court reviewed the concept of non-testimonial statements a few months after the CCA refused Ruth's PDR. In Davis v. Washington, 126 S. Ct. 2266 (2006), the Court held that: -31- Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis, 126 S. Ct. at 2273-2274. The Supreme Court acknowledged that a 911 operator's inquiries about an ongoing emergency are an interrogation in one sense, but not necessarily in a testimonial sense. Id. at 2274. If the caller is reporting about events that are actually happening and is seeking emergency testimonial. assistance, Id. at 2276. then the statements are not The Supreme Court further explained matters to be considered when reviewing statements made during an "ongoing emergency." 1159 (2011). Michigan v. Bryant, 131 S. Ct. 1143, 1158- The immediacy of the danger and the specific context are of particular importance in determining whether the statements made during an emergency situation might be testimonial. at 1158-1159. See id. "[T]he duration and scope of an emergency may depend in part on the type of weapon employed." Id. at 1158. Bryant supports the state courts' determination that the 911 call was admissible because it was made for the purpose of seeking help in an emergency. The state courts' analyses of the factual findings made in determining whether the 911 call was testimonial are entitled to a presumption of correctness. S. Ct. 841, 845 (2010) i Wood v. Allen, 130 Miller-El v. Cockrell, 123 S. Ct. -32- 1029, 1041 Therefore (2003). 1 under AEDPA standards 1 the court cannot grant relief l and this claim will be dismissed. H. Claim 8: Ruth Expert Witness on Family Violence complains that his attorney failed to bring an Ruth argues that he and affirmative defense on family violence. his family urged his attorney to call an expert on family violence to testify regarding the decedent's history of violence toward Ruth and his family. 29 "[C] omplaints of uncalled witnesses are not favored in federal habeas corpus review because the presentation of testimonial evidence is a matter of trial strategy and because allegations of speculative. what a Day v. II witness would Quarterman have stated 566 F.3d 527 1 1 are 538 largely (5th Cir. 2009) i see also Woodfox v. Cain, 609 F.3d 7741 808 (5th Cir. 2010) i Wilkerson v. Cain l 233 F.3d 886 1 892 (5th Cir. 2000). Accordingly, "to prevail on an ineffective assistance claim based on counsel/s failure to call a witness, the petitioner must name the witness l demonstrate that the witness was available to testify and would have done so, set out the content of the witness s 1 proposed testimony, and show that the testimony would have been favorable to a particular defense. 1I DaYI 566 F.3d at 538i see also Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) F. App/x 296 724, 733 1 298 (5th Cir. 2008) (5th Cir. 2005). i i Bray v. Quarterman l 265 O/Brien v. Dretke l 156 F. App/x This requires the production of "affidavits from those non-testifying witnesses attesting under 29See Petitioner1s Oppositl'onl Docket En t ry No. 25 , pp. 42 - 44 . -33- oath as to (1) what they would have said at trial and (2) that in fact they would have testified at trial if they had been asked. Adams v. Quarterman, 324 F. App'x 340/ 350 u (5th Cir. 2009). Ruth fails to name a specific witness; he merely suggests a theoretical This expert. attorney was ineffective. is not sufficient to prove that his See Evans v. Cockrell, 285 F.3d 370, 377 "Hypothetical or theoretical testimony will not (5th Cir. 2002). justify the issuance of a writ." 819 (5th Cir. 1986) Martin v. McCotter/ 796 F.2d 813/ (internal citations omitted). Moreover, it is clear from the record that Ruth threatened the unarmed victim with a gun and that the victim begged for mercy. The violent nature of the crime as revealed in the state trial record would have defeated an argument that Ruth was acting in self-defense. F.2d at 819. The state court s See Martin, 796 adjudication of Ruth's I claims regarding his attorney's trial strategy was not a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as established by the Supreme Court of the United States. 28 U.S.C. § 2254(d) (1). Nor has Ruth shown that the state court made an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. U.S.C. I. § 2254 (d) (2) . Claim 5: Ruth 28 Effective Assistance of Appellate Counsel alleges that he was denied effective assistance of counsel on appeal because his appellate counsel failed to raise the following claims: -34- 1. prosecutorial misconduct; 2. ineffective assistance of trial counsel for failing to strike jurors and a valid defense; 3. trial court's failure to grant a mistrial; 4. trial court's failure to quash the jury panel; and 5. trial court's failure to give the jury a charge on sudden passion. The state habeas court rejected Ruth's contention that his appellate counsel was ineffective by concluding that Ruth failed to prove any of the clams he alleged that his appellate counsel should have made had a reasonable probability of success. No. 23-37, p. 7) (Docket Entry Strickland's two-prong test regarding deficient performance and prejudice applies in determining whether appellate counsel was ineffective. (2000). Smith v. Robbins, 120 S. Ct. 746, 764 To establish deficient performance Ruth must show that his appellate attorney unreasonably failed to discover non-frivolous issues and include them in his brief. However, appellate counsel is not required to include every non-frivolous claim in his brief. (5th Id. at 765; see also Sharp v. Puckett, 930 F.2d 450, 452 Cir. 1991). To establish reasonable probability that but prejudice for his Ruth "must show a counsel's unreasonable failure" to raise the claims asserted by Ruth in his brief, Ruth would have prevailed on appeal. Robbins, at 764. "Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Id. at 765, quoting Gray v. Greer, -35- 800 F.2d 644, 646 (7th Cir. 1986) i see also Kossie v. Thaler, 423 F. App'x 434, 437 (5th Cir. 2011) . Ruth contends the that counsel State's engaged in prosecutorial misconduct during voir dire by expressing her opinion that justified. 30 the killing was not obj ection, which the court sustained Ruth's attorney made an and ordered the jury to disregardi however, the court denied the motion for mistrial. Ruth argues that the panel should have been quashed and that this should have been raised on appeal. In considering such a claim, the court must determine whether the alleged misconduct was "'of sufficient significance to result in the denial of the defendant's right to a fair trial.' Greer v. /I Miller, 107 S. quoting United States v. Bagley, Ct. 105 S. Ct. 3102, 3375, 3109 3380 (1987), (1985). Ruth points out a single instance during voir dire in which the prosecutor commented that it was her opinion that the killing was not justified. instruction. The court immediately issued a curative Ruth fails to demonstrate that his right to a fair trial was violated or that he would have prevailed if he had raised such a claim on appeal. See Greer, at 3109. Ruth's claim concerning his trial attorney's alleged failure to strike jurors has been previously addressed in this Memorandum Order and Opinion. In his Memorandum of Law (Docket Entry No.4, p. 40) Ruth cites a Texas appellate court decision in support of 30Reporter's Record, Vol. 3, p. 103 (not scanned). -36- - - - ""-_._-'-'_.' his argument that he was denied effective assistance of counsel during voir dire. [Texarkana1 2003) Goodspeed v. State, 120 S.W.3d 408 (Tex. App. Goodspeed concerned a jury trial in which the defense attorney failed to ask any questions of the venire panel and used two of his peremptory strikes on prospective jurors who had already been excused for cause by the trial court. 412. rd. at 411- Ruth's attorney asked numerous questions during voir dire and did not waste any peremptory strikes on excused panel members. Moreover, the Texas decision, and the conviction. Court court of of Criminal appeals Appeals subsequently Goodspeed v. State, 187 S.W.3d 390 2005); 167 S.W.3d 399 (Tex. App. reversed the affirmed the (Tex. Crim. App. [Texarkana] 2005). Ruth presents no persuasive authority that his appellate attorney was ineffective by not appealing the alleged voir dire error. Ruth's claim concerning his appellate attorney's failure to seek a jury instruction on "sudden passion" concerns a state law issue that Johnson, is not subj ect to federal 162 F.3d 385, 390 (5th Cir. habeas review. 1998), Creel v. citing Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988); Alexander v. McCotter, 775 F.2d 595, 601 (5th Cir. 1985). Federal courts defer to the state courts on whether such an instruction is warranted. rd. Moreover, the evidence in the record indicates that Ruth's conduct, in which he shot the victim fifteen times, would preclude a finding by a rational jury that he acted under sudden passion when he committed the homicide. See Ahrens v. State, 43 S.W.3d 630, 635-36 -37- (Tex. App.-Houston [1st Dist.] 2001), citing Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). Ruth also contends that he was denied effective assistance because appellate counsel failed to appropriately brief the 911 call for appellate review. Ruth must prove that he would have prevailed on appeal but for the failure of his appellate counsel. See Robbins, Ruth's claim regarding the 911 120 S. Ct. at 764. call has been previously reviewed and rejected in this Memorandum Opinion and Order. Ruth provides no convincing evidence that he could have prevailed on his claim but for his appellate counsel. The state court's adjudication of Ruth's claims regarding his appellate attorney's performance was not a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as established by the Supreme Court of the United States. 28 U.S.C. § 2254 (d) (1). Nor has Ruth shown that the state court made an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. U.S.C. § 28 2254 (d) (2) . IV. Motion for Discovery Ruth filed a motion for discovery to obtain a copy of "any documents that [Thaler] has requested specifically the affidavit of counsel." habeas petitioner, court, is not unlike entitled to the usual discovery -38- and receives (Docket Entry No. 21) civil litigant as matter a "A in federal of ordinary course." court Bracy v. Gramley, 117 S. Ct. 1793, 1796-1797 (1997). may grant at its discretion the motion "where The specific allegations" show reason to believe that a petitioner will develop the facts to demonstrate an entitlement to relief. (quoting Harris v. Nelson, 89 S. Ct. 1082 rd. (1969)). at 1799 Here, Ruth demonstrates no specific allegations that give reason to believe that any pertinent facts in the requested documents entitle him to relief. Therefore, Ruth's Motion for Discovery (Docket Entry No. 21) will be denied. v. Certificate of Appealability Under 28 U.S.C. § 2253 Ruth needs to obtain a certificate of appealability before he can appeal Order dismissing his Petition. this Memorandum Opinion and To obtain a certificate of appealability Ruth must make a substantial showing of the denial of a constitutional right. (5th Cir. 2002). Williams v. Puckett, 283 F.3d 272, 276 To make such a showing Ruth must demonstrate that the issues are debatable among jurists of reason; that a court could or resolve the issues in a different manner; that the questions are adequate to deserve encouragement to proceed further. Lucas v. Johnson, 132 F.3d 1069, 1073 (5th Cir. 1998). For the reasons stated in this Memorandum Opinion and Order, Ruth has not made a substantial showing of the denial of a consti tutional right. Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996) The court will therefore deny a Certificate of Appealability in this action. -39- VI. For the reasons Conclusion and Order explained above, the court ORDERS the following: 1. Respondent Thaler's Motion for Summary (Docket Entry No. 22) is GRANTED. Judgment 2. The Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No. 1) is DISMISSED WITH PREJUDICE. 3. Ruth's Motion for Leave Requesting (Docket Entry No. 21) is DENIED. 4. A Certificate of Appealability is DENIED. Discovery SIGNED at Houston, Texas, on this 23rd day of August, 2013. UNITED STATES DISTRICT JUDGE -40- -------- ----------