IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-70003

WESLEY LYNN RUIZ, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

July 7, 2020

Lyle W. Cayce

Clerk

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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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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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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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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. 

3 The 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 Merillatbased 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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violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose, postEstrada, 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 initialreview 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 twoprong 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.

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