United States Court of Appeals

Fifth Circuit

FILED

August 10, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-70047

ROLANDO RUIZ,

Petitioner-Appellant, 

versus

NATHANIEL QUARTERMAN,

Respondent-Appellee.

Appeal from the United States District Court

For the Western District of Texas 

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Rolando Ruiz was sentenced to death after a jury in Bexar

County, Texas, convicted him of capital murder. Texas state courts

affirmed his conviction and sentence and refused habeas relief. The

federal district court dismissed his federal habeas petition,

finding his claims of ineffective assistance of counsel and

unconstitutional strictures of argument in mitigation procedurally

barred and rejecting his contention that the state trial court erred

in sustaining the State’s challenge for cause of a member of the

venire. The court refused certificate of appealability except as

to the last claim. We refuse Ruiz’s request for certificate of
1 State v. Ruiz, unpub. op., No. 72,072 (TEX. CRIM. APP. Feb.

25, 1998). 

2 Ex Parte Rolando Ruiz, unpub. op., No. 27,328 (TEX. CRIM. APP.

April 2, 2003). 

3 See Witherspoon v. Illinois, 391 U.S. 510 (1986); Wainwright

v. Witt, 469 U.S. 412 (1982). Ruiz made other claims that he does

not pursue here. 

2

appealability on the first two claims and affirm the district

court’s judgment on the third.

I

-1-

On January 18, 1995, a jury in Bexar County, Texas, convicted

Ruiz of capital murder and in the punishment phase gave affirmative

answers to the two interrogatories required by Texas law. He was

then sentenced to death. The Texas Court of Criminal Appeals

affirmed the conviction and death sentence.1 Ruiz filed a state

habeas application on September 15, 1997, for which the state trial

court issued its findings of fact and conclusions of law on December

30, 2002, recommending that the Texas Court of Criminal Appeals deny

relief. It did.2

Ruiz then filed his federal petition, claiming ineffective

assistance of counsel, unconstitutional strictures of argument in

mitigation, and error in the state trial court’s sustaining the

State’s challenge for cause of a member of the venire, assertedly

“Witherspoon error.”3 The district court denied relief, finding the

first two claims procedurally barred because Ruiz failed to exhaust
4 Mr. Ruiz moved to alter or amend the judgment under Federal

Rule 59(e). That motion was denied on September 13, 2005. He also

moved to stay the proceedings and hold the case in abeyance. His

request was denied on September 15, 2005. He requested COA from

the U.S. District Court on the issues previously denied, and this

request was denied on October 13, 2005. Finally, Mr. Ruiz’s motion

to reconsider, alter or amend the judgment and order denying the

COA application was denied on November 30, 2005. 

5 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)); Dowthitt v.

Johnson, 230 F.3d 733, 740 (5th Cir. 2000). 

3

them in state court, thus raising an independent state procedural

bar to relief, and rejecting the third claim. The court refused

certificate of appealability on its procedural rulings but granted

COA on the Witherspoon claim.4

-2-

There was sufficient evidence at trial from which the jury

could conclude that Ruiz was hired by Mark and Michael Rodriguez to

murder Michael’s wife, Theresa, for two thousand dollars; that he

did so by shooting her in the head at close range with a .357

revolver.

II

We turn first to the request for COA. COA will issue only if

Ruiz makes a substantial showing of the denial of a constitutional

right, a showing that “reasonable jurists could debate whether (or,

for that matter, agree that)” the court below should have resolved

the claims in a different manner or that this Court should encourage

Ruiz to further litigate his claims in federal court.5
6 Slack, 529 U.S. at 484 (emphasis added); Kutzner v. Johnson,

242 F.3d 605, 608 (5th Cir. 2001).

7 Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004) (quoting

Miller-El, 537 U.S. at 336 ).

8 Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-10 (1992); Picard v.

Connor, 404 U.S. 270, 275, 277-78 (1971); Dowthitt, 230 F.3d at

745-46. 

4

As the lower court denied the first two claims on procedural

grounds without reaching the merits of the underlying constitutional

claims, COA should issue only if Ruiz demonstrates that “jurists of

reason would find it debatable whether the petition states a valid

claim of a denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was

correct in its procedural ruling.”6 The determination of either

issue requires “an overview of the claims in the habeas petition and

a general assessment of their merits,” but not “full consideration

of the factual or legal bases adduced in support of the claims.”7

We find it plain that the soundness of the district court’s denials

of the claims as procedurally barred is not debatable among

reasonable jurists and we refuse Ruiz’s request for COA. 

The exhaustion doctrine of 28 U.S.C. § 2254(b)(1) codifies

long-developed principles of comity.8 Before a federal court can

find merit in alleged errors by state courts, a petitioner must have

first provided the state’s highest court with a fair opportunity to

apply (1) the controlling federal constitutional principles to (2)
9 Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Rose v. Lundy,

455 U.S. 509, 522 (1982); Anderson v. Harless, 459 U.S. 4, 6

(1982); Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990). 

10 Picard, 404 U.S. at 275-76. 

11 Keeney, 504 U.S. at 10.

12 Picard, 404 U.S. at 275.

13 Id. at 275-77.

14 Wilder v. Cockrell, 274 F.3d 255, 260 (5th Cir. 2001)

(citing Anderson, 459 U.S. at 6).

5

the same factual allegations.9 This requirement is designed to give

state courts the initial opportunity to pass upon and, if necessary,

correct errors of federal law in a state prisoner’s conviction or

sentence.10 The purpose of exhaustion “is not to create a

procedural hurdle on the path to federal habeas court, but to

channel claims into an appropriate forum, where meritorious claims

may be vindicated and unfounded litigation obviated before resort

to federal court.”11

A fair opportunity requires that all the grounds of the claim

be first and “fairly presented” to the state courts.12 In other

words, in order for a claim to be exhausted, the state court system

must have been presented with the same facts and legal theory upon

which the petitioner bases his current assertions.13 “[I]t is not

enough ... that a somewhat similar state-law claim was made.”14 An

argument based on a legal theory distinct from that relied upon in
15 Id. at 259 (citing Vela v. Estelle, 708 F.2d 954, 958 n.5

(5th Cir. 1983)). 

16 Id. at 261 (citing Picard, 404, U.S. at 276). 

17 28 U.S.C. § 2254(b)(1)(b).

18 Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

19 Id. at 750.

6

the state court does not meet the exhaustion requirement.15

“Exhaustion ‘requires a state prisoner to present the state courts

with the same claim he urges upon the federal courts.’”16 AEDPA

excuses these requirements only if the petitioner shows “(i) there

is an absence of available state remedies in the courts of the

State, or (ii) circumstances exist that render such processes

ineffective to protect the rights of the applicant.”17

Furthermore, where a petitioner has failed to exhaust claims

in state court, and that failure would now result in the state

procedurally rejecting those claims, the petitioner has procedurally

defaulted the claims and we must find them procedurally barred.18

Exceptions to procedural default exist where the petitioner shows

“cause and actual prejudice” or that application of the procedural

bar will result in a “fundamental miscarriage of justice.”19

Ruiz’s relevant claims of ineffective assistance of counsel at

trial and unconstitutional strictures of argument in mitigation

first came in his petition for habeas relief filed in federal

district court. The state responded that the court could not hear

those claims because Ruiz did not present them to the state courts,
7

although he could have done so, at the least in a petition for state

habeas relief; moreover, Texas courts would now dismiss the claims

as an abuse of the writ without reaching their merits. The court

agreed, finding that Ruiz had not established excuse under AEDPA for

failure to exhaust or an applicable exception to procedural default.

It then refused to grant COA, a request now made to this court. 

Ruiz does not contend that he did not know that state habeas

offered an avenue for presenting his claims or that the claims were

presented. Rather, his present counsel argues, as he did to the

district court, that for two reasons there should be no procedural

bar here. First, Ruiz contends that his state habeas counsel was

ineffective. Ruiz’s state habeas counsel filed a petition on behalf

of Ruiz asserting seventeen claims, eight of which claimed

ineffective assistance of trial counsel. Ruiz’s present claim is

that his lawyer failed to allege two claims. First, a claim of

ineffective assistance of trial counsel with two specifications:

that trial counsel failed to perform a social history and background

investigation in preparing for the sentencing phase of the trial and

failed to offer the report or the testimony of Dr. Harry Munsinger

at the sentencing stage. Second, a claim that Ruiz was denied due

process by the state trial court’s instruction to the jury to

disregard a portion of defense counsel’s closing argument regarding

the co-defendant who hired Ruiz to murder, as charged in the

indictment. The federal district court agreed that trial counsel

was ineffective and suggested that state habeas counsel was
20 See, e.g., Coleman, 501 U.S. at 722; Martinez v. Johnson,

255 F.3d 229, 239-40 (5th Cir. 2001); Beazley v. Johnson, 242 F.3d

248, 270-72 (5th Cir. 2001); Elizalde v. Dretke, 362 F.3d 323, 330

(5th Cir. 2004). The district court analyzed the issue only when

discussing “cause.”

21 See Martinez, 255 F.3d at 239-40; Beazley, 242 F.3d at 256;

Elizalde, 362 F.3d at 330.

8

ineffective, but it properly rejected Ruiz’s argument for the reason

that incompetence of habeas counsel is not an excuse under 28 U.S.C.

§ 2254 (b)(1)(B) of AEDPA for failure to exhaust or “cause” for an

exception to procedural default because Ruiz had no constitutional

right to counsel in habeas proceedings.20 This is true even where

a claim cannot be brought, or brought effectively, until state

habeas proceedings.21

Second, Ruiz re-characterizes his claim of ineffective habeas

counsel by asserting that the State obstructed his efforts to

prosecute the claims by appointing incompetent counsel, effectively

making his state remedy illusory and, hence, insulating his claims

from federal review through the doctrine of procedural default. In

Ruiz’s view, he would be better off if there had been no state

habeas proceeding available or if he had had no appointed counsel.

According to Ruiz, this situation resulted from a “structural

deficiency” in the state habeas system, rendering that system

“absent” or “ineffective to protect [his] rights” under AEDPA and

providing cause for his procedural default. Yet the law of this

Court is clear: ineffective state habeas counsel does not excuse
22 See supra notes 20 and 21.

23 Coleman, 501 U.S. at 722; Murray v. Carrier, 477 U.S. 478

(1986). 

24 Ruiz suggests that his appellate counsel’s “conflict of

interest” highlights how the state stacked the cards against him:

ineffective trial counsel, state habeas counsel, and appellate

counsel. But ineffectiveness of trial counsel is generally an

issue for habeas precisely because trial counsel usually pursues

the direct appeal. Ex parte Torres, 943 S.W. 2d 469, 475 (Tex.

Crim. App. 1997). And whatever the reason Mach did not pursue the

9

failure to raise claims in state habeas proceedings.22 Where the

state has provided a habeas remedy, the petitioner must pursue it

before filing in federal court, even if the state provides

ineffective habeas counsel. 

In a further effort to show “cause” for his failure to raise

these claims in state court, Ruiz seeks to show that an “objective

external factor”23 impeded his ability to follow state procedural

rules. He contends that the state affirmatively interfered with his

efforts to acquire new counsel for direct appeal, a replacement for

Donald Mach, his trial counsel, which Ruiz thought necessary to

prosecute his claims of ineffective assistance of trial counsel.

But, as the trial court explained, it refused to dismiss Mach

because any claims of ineffective assistance of trial counsel could

be raised in a state habeas petition for which, moreover, Ruiz had

already filed a request for appointment of counsel. Hence whatever

force exists behind Ruiz’s argument that ineffectiveness of state

habeas counsel creates “cause” (or prompts a 28 U.S.C. § 2254

(b)(1)(B) exception to AEDPA), this contention adds nothing.24
unconstitutional strictures of argument claim, it is unrelated to

his “conflict of interest” about which Ruiz complains.

25 Sawyer v. Whitley, 505 U.S.333, 335-35 (1992).

26 Id. at 347. Under Texas law, the jury must find the

defendant likely to be a continuing threat to society and find an

absence of “sufficient mitigating circumstance or circumstances to

warrant that a sentence of life imprisonment rather than a death

sentence be imposed.” TEX. CODE CRIM. P. art. 37.071, § 2(e)(1).

Ruiz contends that the neglected evidence vitiates both prongs.

10

Finally, Ruiz urges that the procedural bar here works a

“miscarriage of justice”.25 This requires a showing by clear and

convincing evidence that, “but for the constitutional error at

[Ruiz’s] sentencing hearing, no reasonable juror would have found

him eligible for the death penalty” under state law.26 Ruiz points

evidence neglected by his ineffective trial counsel, specifically

his allegedly damaging social history and background and drug use.

The State points to evidence before the jury of Ruiz’s violent

conduct – the brutal facts of the murder, Ruiz’s carrying guns,

aggravated robbery, assaults of his girlfriend, and membership in

the “Texas syndicate gang,” and that while in jail awaiting trial,

Ruiz committed at least three violent gang-related injury-producing

assaults of detention officers and other inmates. 

The absence here of the required “clear and convincing

evidence” that “no reasonable juror” would have found Ruiz eligible

for the death penalty is not debatable among jurists. We are

persuaded that reasonable jurists would not debate the trial court’s
27 391 U.S. 510 (1986).

11

determination that Ruiz failed to establish this exception to

procedural default, and we refuse to issue COA. 

III

The sole claim of error remaining in this appeal and the only

claim for which COA has issued is that the trial court erred in

granting the state’s challenge for cause of Ms. Castro, a member of

the venire. This allegedly violated Witherspoon v. Illinois,

27

where the Supreme Court held that jurors may not be excused from

sitting on capital juries simply because they voiced general

objection to the death penalty or expressed conscientious or

religious scruples against its infliction.

This prospective juror gave conflicting signals of her ability

to serve on the jury given her opposition to capital punishment.

She stated in her juror questionnaire that she was opposed to

capital punishment. While in open court she stated that she did not

believe in capital punishment but, if instructed to do so, could

follow the court’s instructions. She also testified that “I think

my answer to this point is that I get out of here and I’m going to

start some kind of action against the death penalty to change the

law.” The latter statement was apparently the tipping point for the

trial judge, who observed, “I went along until she said she was

going to get involved in an organization doing away with the death

penalty.”
12

The Texas Court of Criminal Appeals summarized Castro’s various

statements as follows: 

First, she told the State in effect that she would never

be a part of a jury that would impose the death penalty

and would vote to ensure that a life sentence with no

parole before 35 years would be given. Then she told

[Ruiz] she could be fair and listen to the evidence and

let the trial court set the sentence. Then she told the

State that she would influence her verdict so that she

would not ever really consider giving the death penalty

and would vote for a life sentence. When the trial court

tried to straighten things out, Castro told him she

wanted to start a group to work to abolish the death

penalty. 

Lay persons come to the courthouse with varying levels of

education and thought about capital punishment. The opening of a

capital trial is an alien environment to citizens called from jobs

and homes. Lay persons are confronted by skilled lawyers engaged in

an adversarial contest who probe their views on a profound and

divisive social issue, usually with a goal of retention or exclusion

shaping the questions. We know from experience that the result is

often a series of responses that seem to shift and turn and even

conflict as questions are framed, reframed and just repeated. A

stranger to the trial reading the bare transcript is left with

incomplete sentences and elliptic answers with no reconciling theme.

Yet one present at trial may well have had a quite different

picture. Inflection of voice and body movements of each cast

member, absent from the transcript, are present at trial. Until at

least twenty-one years ago, such transcripts confounded appellate

courts. Wainwright v. Witt responded to the not infrequent
28 469 U.S. 412 (1985).

29 Id. at 429

30 Id. at 429 n.9

31 Id. at 425-26

13

frustration of appellate review of the calls of trial judges made in

the process of selecting jurors for the trial of capital cases —

with a pragmatic solution.

28 The court acknowledged that a

prospective juror’s bias “involves credibility findings whose basis

cannot be easily discerned from an appellate record.”29 The Court

observed: “[T]he manner of the juror while testifying is oftentimes

more indicative of the real character of his opinion than his words.

That is seen [by the trial court] below, but cannot always be spread

upon the record.”30 “Despite this lack of clarity in the printed

record, there will be situations where the trial judge is left with

the definite impression that a prospective juror would be unable to

faithfully and impartially apply the law.”

31 Ms. Castro is the

classic wavering prospective juror. This was a call to be made by

the trial judge, and there is no record basis for concluding that

the court abused its discretion. It follows that we cannot say that

the decision of the state court in this case was an unreasonable

application of the law as decided by the Supreme Court, and we

affirm the denial of federal habeas relief by the district court.

In sum, we refuse to grant the requested COA and affirm the

judgment of the district court denying federal relief. 
14