IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-70014

RAMIRO RUBI IBARRA, 

 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 Western District of Texas

USDC No. 6:02-CV-52

Before JONES, HAYNES, and GRAVES, Circuit Judges.

PER CURIAM:*

Ramiro Rubi Ibarra was convicted of capital murder and sentenced to 

death. He is seeking a certificate of appealability (“COA”) under 

28 U.S.C. § 2254 from the district court’s denial of relief on his 

Martinez/Trevino claims. For the reasons given below, we grant a COA on his 

ineffective assistance of counsel claim and deny his petition for a COA on his 

Atkins claim.

 

* 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

June 19, 2018

Lyle W. Cayce

Clerk

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I. Background

The facts about the crime need not be recited again. This court 

summarized the procedural history as follows: 

Petitioner's sentence and conviction were affirmed on direct 

appeal. See Ibarra v. State of Texas, 11 S.W.3d 189 

(Tex.Crim.App.1999), reh'g denied (Dec. 8, 1999), cert. denied, 

Rubi Ibarra v. Texas, 531 U.S. 828, 121 S.Ct. 79, 148 L.Ed.2d 41 

(2000). His first state habeas corpus petition was denied. Ex parte 

Ibarra, No. WR–48832–01 (Tex.Crim.App. Apr. 4, 2001). 

Petitioner then submitted his federal habeas petition, which was 

stayed while he exhausted additional state court claims pursuant 

to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 

335 (2002), which banned the execution of the mentally retarded. 

His petition was stayed further while he pursued state court 

claims following President Bush's announcement that the United 

States would have state courts give effect to an International Court 

of Justice opinion declaring that Mexican nationals were entitled 

to review and reconsideration of their convictions due to states' 

failure to comply with the Vienna Convention on Consular 

Relations (“VCCR”). See The Case Concerning Avena and Other 

Mexican Nationals (Mex. v. U.S.) (“Avena”), 2004 I.C.J. 12 

(Judgment of Mar. 31). See also Medellin v. Texas, 552 U.S. 491, 

128 S. Ct. 1346, 170 L.Ed.2d 190 (2008).

The Texas Court of Criminal Appeals remanded Petitioner's 

Atkins claim to the trial court for an evidentiary hearing. The trial 

court determined that Petitioner was not mentally retarded, and 

this holding was adopted on appeal by the Court of Criminal 

Appeals (“CCA”). In the same order, the CCA dismissed his 

separate petition for relief under Avena as a subsequent writ under 

Article 11.071, Section 5 of the Texas Code of Criminal Procedure. 

Ex parte Ibarra, Nos. WR–48832–02 and WR–48832–03, 2007 WL 

2790587, (Tex.Crim.App. Sept. 26, 2007). Petitioner's application 

for certiorari on his Avena claim was denied. Ibarra v. Texas, 

553 U.S. 1055, 128 S.Ct. 2475, 171 L.Ed.2d 770 (2008). A fourth 

state habeas petition, raising a claim under Wiggins v. Smith, 

539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), was also 

dismissed by the CCA as a subsequent writ. Ex parte Ibarra, 

No. WR–48832–04, 2008 WL 4417283 (Tex.Crim.App. Oct. 1, 

2008).

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Ibarra v. Thaler, 691 F.3d 677, 680 (5th Cir. 2012) vacated in part sub nom. 

Ibarra v. Stephens, 723 F.3d 599 (5th Cir. 2013). 

After Ibarra had finally exhausted his claims in the Texas courts, he 

argued eleven grounds for relief in the federal district court, all of which were 

rejected, and then sought a COA from this court on only three claims: Atkins, 

VCCR, and Wiggins. 

Most pertinent to the instant motion, Ibarra contended that “his trial 

counsel was ineffective in his investigation, development, and presentation of 

mitigation evidence, as well as the development of rebuttal evidence for the 

state's aggravating factors at sentencing” in violation of the Sixth Amendment 

and Wiggins, 539 U.S. at 522-23, 123 S. Ct. at 2536. As noted above, the TCCA 

dismissed this petition as a subsequent writ. The district court rejected this 

claim for two independent reasons: (1) procedural default under thengoverning precedent, and (2) alternatively, meritlessness, because Ibarra could 

not demonstrate prejudice. Ibarra, 691 F.3d at 683. This court held that 

reasonable jurists “could not disagree with the district court’s conclusion that 

Petitioner’s Wiggins claim was procedurally defaulted” and denied a COA. 

Id. at 685. 

As to the Atkins claim, this court denied a COA on alternative grounds 

of procedural bar, non-exhaustion and meritlessness. The evidence Ibarra 

offered in state court included an unsworn, inadmissible expert witness 

statement concerning Ibarra’s IQ; an investigative report about his alleged 

adaptive deficits; and the opinion of Dr. Mark, who after two examinations of 

Ibarra had found no evidence of mental handicap. The TCCA had rejected this 

claim on the merits. Ibarra consequently offered material new evidence in 

federal court, rendering his claim unexhausted and procedurally barred. 

Finally, reviewing the state court record, this court found it not debatable that 

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the state courts’ rejection of the Atkins claim on the merits did not violate 

28 U.S.C. § 2254(d)(1). Ibarra, 691 F.3d at 681-83.1

The Supreme Court then decided Trevino v. Thaler, 

569 U.S. 413, 133 S. Ct. 1911 (2013). On a motion for rehearing, this court 

granted rehearing in part and vacated our initial decision “only to the extent 

inconsistent with Trevino and grant[ed] a COA only to that extent; in all other 

respects, the majority and dissenting opinions [of the prior opinion] remain[ed] 

in effect.” Ibarra, 723 F.3d at 600. Judge Graves concurred in part and 

dissented in part.

Back in the district court, Ibarra moved to stay and remand so that he 

could pursue his ineffective assistance of counsel (“IATC”) claim in state court. 

The district court denied this motion. The case was reassigned to Judge 

Pitman when Judge Smith retired. Ruling on a motion for rehearing of that 

order, Judge Pitman affirmed the denial and sua sponte held that a COA 

should not issue because Ibarra’s IATC claim was not “substantial.”

II. Standard of Review and Controlling Law

This court must first issue a COA, 28 U.S.C. § 2253(c)(1), a jurisdictional

prerequisite to reviewing the district court’s denial of habeas relief. Miller-El 

v. Cockrell, 537 U.S. 322, 323, 123 S. Ct. 1029, 1032 (2003). A COA may only 

be granted when the petitioner “has made a substantial showing of the denial 

of a constitutional right.” Id. at 336, 123 S. Ct. at 1039 (internal quotation 

marks omitted). This standard means that the “petitioner must show that 

reasonable jurists could debate whether (or for that matter, agree that) the 

petition should have been resolved in a different manner or that the issues 

 

1 This court also denied COA on the VCCR claim, a holding that has not been 

challenged.

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presented were adequate to deserve encouragement to proceed further.” Id.

(internal quotation marks omitted). 

Martinez v. Ryan held that “a procedural default will not bar a federal 

habeas court from hearing a substantial claim of ineffective assistance at trial 

if, in the initial-review collateral proceeding, there was no counsel or counsel 

in that proceeding was ineffective.” 566 U.S. 1, 17, 132 S. Ct. 1309, 1320 

(2013). This principle was extended to Texas in Trevino. 

569 U.S. at 429, 133 S. Ct. at 1921. Such a “substantial claim” constitutes 

“cause” for the procedural default, but, in line with traditional precedent, the 

petitioner must also prove that he suffered “prejudice” from counsel’s errors. 

Martinez, 566 U.S. at 10, 132 S.Ct. at 1316 (citing Coleman v. Thompson, 

501 U.S. 722, 750, 111 S.Ct. 2546 (1991)). A “substantial” claim is one that has

“some merit.” Martinez, 566 U.S. at 14, 132 S. Ct. at 1318. An insubstantial 

claim is one which “does not have any merit” or “is wholly without factual 

support.” Id. at 15-16, 132 S. Ct. at 1319. The standard for evaluating an 

ineffective assistance of counsel claim is given in Strickland, which states the 

petitioner must show “that counsel’s performance was deficient” and “that the 

deficient performance prejudiced the defense. This requires showing that 

counsel’s errors were so serious as to deprive the defendant of a fair trial, a 

trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S. Ct. 2064. 

The State succeeds in establishing procedural default if the IATC claim is 

insubstantial, or the initial habeas attorney was not constitutionally 

ineffective, or Ibarra has not proved sufficient prejudice to overcome his 

procedural default. Martinez, 566 U.S. at 15-16, 18, 132 S. Ct. at 1319, 1321. 

III. Analysis

Ibarra’s motion for COA asserts that reasonable jurists could debate the 

district court’s conclusions that his IATC claim lacked merit, his initial state 

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habeas counsel was constitutionally deficient for not raising that claim, and 

his Atkins claim may also be re-reviewed by this court. 

A.

Ibarra argues trial counsel were ineffective for failing to investigate and 

present additional mitigating evidence about Ibarra’s background. He argues 

that a “thorough background investigation” would have uncovered:

(1) Ibarra’s extreme childhood impoverishment to the point of 

malnourishment and living conditions far more dire than 

“humble;” (2) extreme physical and emotional abuse perpetrated 

against Ibarra as a child by his father; (3) Ibarra’s witnessing 

extreme physical and emotional abuse perpetrated against loved 

ones by his father as a child; (4) Ibarra’s attempts to care for and 

protect his siblings from their poverty and from their father’s 

abuse; (5) Ibarra’s significantly subaverage intellectual 

functioning; (6) Ibarra’s developmental intellectual disability; and 

(7) Ibarra’s development of severe post-traumatic stress disorder 

as a result of his experiencing and witnessing the extreme violence 

perpetrated by his father throughout his childhood and 

experiencing the near deaths and deaths of family members due to 

their extreme poverty.2

Ibarra argues that trial counsels’ failure to present this evidence prejudiced 

him at the sentencing stage.

In Buck v. Davis, the Supreme Court cautioned this court that a COA 

determination “is not coextensive with a merits analysis.” 127 S. Ct. 759, 773 

(2017). At this stage, we only consider whether Ibarra’s claim is debatable. 

See id. at 774. We find that it is. Because Ibarra’s original IATC claim is 

debatable, we also find that it is debatable whether his initial habeas counsel 

 

2 Ibarra contends that the district court was obliged to hold an evidentiary hearing on 

his Martinez claim, but circuit precedent does not support such a requirement. Segundo v. 

Davis, 831 F.3d 345, 351 (5th Cir. 2016). 

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was ineffective for not pursuing this claim. Therefore, we grant a COA on this 

issue.

B.

Ibarra argues that he is entitled to a COA on his Atkins claim consistent 

with our COA on rehearing. Reasonable jurists could not debate the district 

court’s rejection of this argument. This court denied a COA on the Atkins

claim, see Ibarra, 691 F.3d at 682-83, and made clear that the order granting 

COA in light of Trevino did not affect this portion of our ruling. See, e.g., 

Ayestas v. Stephens, 817 F.3d 888, 889 (5th Cir. 2016) (remand order after 

Trevino did not leave open any matter other than the defaulted IATC claim).3

Nothing in that order suggests that the Atkins claim was within the scope of 

remand.

Ibarra alternatively contends that Martinez and Trevino should be 

extended to cover Atkins claims. He states that Davila v. Davis, 137 S. Ct. 

2058 (2017) supports his assertion. He also argues that he should be able to 

pursue this claim because Moore v. Texas, 137 S. Ct. 1039 (2017), is retroactive 

and provides an exception to the Section 28 U.S.C. 2254(d)(1) relitigation bar

and law of the case. We need not consider the debatability of these issues

because reasonable jurists could not debate that Ibarra’s underlying Atkins 

claim, as presented to the state courts, has no merit. Even if Moore applied to 

this case, it would not benefit Ibarra because, although explicitly given a fair 

opportunity to present an Atkins claim, his counsel, who continue to represent 

 

3 The dissenting opinion appears to argue that the Martinez/Trevino holdings may be 

extended to Ibarra's second state postconviction proceeding, which explicitly considered his 

Atkins claim on the merits. Thus, are we to infer that Ibarra's counsel must have been 

ineffective in that proceeding, and they, the same attorneys, can relitigate de novo their 

Atkins claim in federal court? This would be a significant extension of Martinez/Trevino. 

Together, those cases hold only that a claim of ineffective assistance of state trial counsel is 

not procedurally defaulted (or the default can be overcome) if the state habeas counsel was 

ineffective for failing to raise trial counsel's ineffectiveness in the state habeas court.

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him to this day, failed to offer admissible evidence of intellectual disability in 

the state court. Ibarra argues that this court should consider evidence that he 

did not present in state court. Under Cullen v. Pinholster, 563 U.S. 170, 181-

82, 131 S. Ct. 1388, 1398 (2011), this is impermissible.4 As this court

previously held, Ibarra presented “essentially no supporting evidence” of 

intellectual disability in state court. Ibarra, 691 F.3d at 681-82. Accordingly, 

a COA on this claim must be denied.

We GRANT a COA on Ibarra’s post-Trevino defaulted IATC claim. 

Counsel will proceed to file briefs as instructed by the clerk’s office. However, 

in light of the substantial briefing we have already received concerning the 

COA, counsel are authorized to supplement the COA briefing as appropriate 

and may cross reference their COA briefs. We also hold that reasonable jurists 

could not debate the district court’s refusal on remand to consider Ibarra’s 

Atkins claim. We therefore DENY his application for a COA on his Atkins 

claim. 

 

4 To allow such relitigation with counsel’s newly proffered evidence would effect a 

complete end run around the state court system and would violate AEDPA specifically. 

28 U.S.C. § 2254(e)(2). Although the dissenting opinion quotes this provision, Ibarra never 

attempted to show that this provision's stringent test for de novo review in federal court has 

been met. To begin, the Atkins issue was well known (not "previously unavailable") to these 

counsel when they represented Ibarra in the state court system. The factual predicate for 

his Atkins claim could have been timely prepared for the state habeas hearing on the merits. 

And counsel have never attempted to demonstrate that the facts underlying Ibarra's alleged 

mental disability can be established by clear and convincing evidence, as that provision 

requires. Holding that reasonable jurists could debate a potential extension of 

Martinez/Trevino under these circumstances is plainly at odds with AEDPA as well as 

Cullen v. Pinholster, supra. 

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JAMES E. GRAVES, JR., Circuit Judge, dissenting in part:

I concur with the majority in granting a certificate of appealability (COA) 

on Ramiro Rubi Ibarra’s ineffective assistance of counsel claims. However, 

because I would also grant a COA on Ibarra’s claim under Atkins v. Virginia, 

536 U.S. 304, 321 (2002), I respectfully dissent in part.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a 

COA should issue when a petitioner makes a "substantial showing of the denial 

of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this standard, Ibarra 

must show that “jurists of reason could disagree with the district court's 

resolution of his constitutional claims or that jurists could conclude the issues 

presented are adequate to deserve encouragement to proceed further.” Miller–

El v. Cockrell, 537 U.S. 322, 327 (2003). Further, “any doubt as to whether a 

COA should issue in a death-penalty case must be resolved in favor of the 

petitioner.” Pippin v. Dretke, 434 F.3d 782 (2005). 

Ibarra was originally sentenced prior to Atkins. He later had an Atkins

hearing. This court previously considered Ibarra’s claims based on what was 

presented by counsel who was arguably ineffective, noting that "[a]t the state 

court evidentiary hearing regarding his Atkins claim, he presented essentially 

no supporting evidence." Ibarra v. Thaler, 691 F.3d 677, 681 (5th Cir. 2012). 

Although Ibarra's counsel attempted to introduce an expert affidavit in state 

court, it was found to be inadmissible because it was not notarized. Id. at 682. 

Counsel then attempted to introduce a notarized affidavit in federal court, but 

the district court found that it was procedurally barred under 28 U.S.C. § 

2254(b) for failure to exhaust in state court. This court later acknowledged 

that the disallowed evidence was "essential to his claim of mental retardation." 

Id. The majority then agreed that the district court "properly disregarded this 

newly proffered evidence" as procedurally barred. The majority also purported 

to find, in the alternative, that the district court properly found that Ibarra's 

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claim had no merit based on the state court record, despite acknowledging that 

"[c]ritically, the record before the state court hearing Ibarra's claim of mental 

retardation did not include the expert affidavit that could have served as some 

evidence of his sufficiently low IQ." Id. The record also did not include 

mitigation evidence that would have provided additional insight into both 

Ibarra’s intellectual disability and his adaptive skills deficits. If trial counsel 

was ineffective in failing to present evidence of intellectual disability or 

adaptive skills deficits for purposes of mitigation at sentencing, then that 

necessarily affected the outcome of Ibarra's Atkins claim.1

Ibarra has evidence that his full scale IQ is 65, well within the 

intellectually disabled range, that he suffered intellectual deficits throughout 

his childhood, and of his adaptive skills deficits. Ibarra has an expert affidavit 

from Dr. Carol Romey concluding that he is intellectually disabled. Ibarra 

asserts that Dr. Stephen Mark was not even hired until after voir dire in his 

trial had already begun. Further, Mark was not provided relevant social 

history information, failed to do necessary intellectual functioning testing of 

Ibarra, and did not speak Spanish, Ibarra’s only language. Ibarra argued in 

his application for a COA that his trial counsel was ineffective for failing to 

investigate and present mitigation evidence relevant to his Atkins claim and 

that the state court process was blatantly unfair for various reasons, including 

the denial of adequate funding. To the extent that any failure to perform 

necessary investigation or to present adequate evidence in state court was the 

result of ineffective assistance of counsel, Ibarra is entitled to present his 

Atkins claim. 

 

1 This is not an argument about Ibarra’s second state post-conviction proceeding. But 

even if that were the case, the majority explicitly ignores the relevant authority that would 

allow Ibarra to overcome any procedural default, as well as the application of the 

fundamental miscarriage of justice provision.

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As the majority acknowledges, under Buck v. Davis, 137 S.Ct. 759 (2017), 

Ibarra is not required to prove his claims on the merits. “At the COA stage, 

the only question is whether the applicant has shown that jurists of reason 

could disagree with the district court's resolution of his constitutional claims 

or that jurists could conclude the issues presented are adequate to deserve 

encouragement to proceed further.” Id. at 773. 

The majority faults Ibarra’s counsel “who continue to represent him to 

this day” for failing to offer admissible evidence of intellectual disability in 

state court. However, Ibarra’s current counsel did not represent him at trial, 

on appeal, or in his “initial-review collateral proceedings.” Martinez, 566 U.S. 

at 9. Moreover, the arguable ineffectiveness of Ibarra’s previous counsel is the 

reason he benefits from the equitable ruling in Martinez. The majority cites 

Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011), for the proposition that 

evidence of intellectual disability may not be considered unless it was 

presented in state court. While that typically may be the rule, Pinholster is 

distinguishable because the court concluded that the defendant was unable to 

demonstrate either prong of ineffective assistance of counsel under Strickland 

v. Washington, 466 U.S. 668, 686-92 (1984). Pinholster, 563 U.S. at 194-201. 

Significantly, the court also acknowledged that “state prisoners may 

sometimes submit new evidence in federal court,” although AEDPA 

discourages it. Id. at 186.

AEDPA includes a provision for the introduction of new evidence in 

federal court. 28 U.S.C. § 2254(e)(2) states:

If the applicant has failed to develop the factual basis of a 

claim in State court proceedings, the court shall not hold an 

evidentiary hearing on the claim unless the applicant shows that-

-

 (A) the claim relies on--

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(i) a new rule of constitutional law, made retroactive 

to cases on collateral review by the Supreme Court, 

that was previously unavailable; or

(ii) a factual predicate that could not have been 

previously discovered through the exercise of due 

diligence; and

(B) the facts underlying the claim would be sufficient to 

establish by clear and convincing evidence that but for 

constitutional error, no reasonable factfinder would have 

found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2).

Additionally, binding precedent allows a petitioner to overcome 

procedural defaults and introduce new evidence in certain instances. See 

Morris v. Dretke, 379 F.3d 199, 205 (5th Cir. 2004) (Exhaustion may be 

excused.); see also Martinez v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001) 

(Petitioner may overcome a procedural default and “obtain federal habeas 

corpus review of his barred claims on the merits, if he can demonstrate cause 

for the defaults and actual prejudice.”); and Barrientes v. Johnson, 221 F.3d 

741, 758 (5th Cir. 2000) (Petitioner can overcome procedural default if “failure 

to consider the claims will result in a fundamental miscarriage of justice”). 

These cases rely on Coleman v. Thompson, 501 U.S. 722, 750 (1991), where the 

United States Supreme Court said:

We now make it explicit: In all cases in which a state 

prisoner has defaulted his federal claims in state court pursuant 

to an independent and adequate state procedural rule, federal 

habeas review of the claims is barred unless the prisoner can 

demonstrate cause for the default and actual prejudice as a result 

of the alleged violation of federal law, or demonstrate that failure 

to consider the claims will result in a fundamental miscarriage of 

justice.

Id. at 750.

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Under this relevant authority, Ibarra is arguably able to overcome the 

procedural default for failure to exhaust and obtain federal habeas review of 

his barred claims. Ibarra can arguably demonstrate cause for the defaults and 

actual prejudice. More importantly, failure to consider the claim would result 

in a fundamental miscarriage of justice if an intellectually disabled man were 

to be unconstitutionally executed.

However, on remand after the United States Supreme Court’s decision 

in Trevino v. Thaler, 569 U.S. 413 (2013)2, the district court did not discuss 

Ibarra's Atkins claim, finding that it was not within the scope of this court's 

remand order. That finding was the result of the majority’s inclusion of 

language on remand limiting Ibarra’s claims of ineffective assistance of counsel 

with regard to issues on which the majority had previously denied his COA. 

Ibarra v. Stephens, 723 F.3d 599, 600 (5th Cir. 2013). I dissented to the 

inclusion of any such language on the basis that Ibarra was not foreclosed from 

raising his ineffective assistance of counsel claims on those issues. Id. (Graves, 

J., dissenting in part) (“Simply put, the trial court is free to determine whether 

or not evidence related to these issues is relevant to any claim of ineffective 

assistance of counsel, and is likewise free to determine if any ineffective 

assistance affects the merits of these issues or any procedural default.”). I 

continue to conclude that Ibarra is not foreclosed from presenting his Atkins

claim to the extent that it is encompassed within Trevino/Martinez.

For the reasons stated herein, jurists of reason could find debatable the 

disposition of Ibarra’s Atkins claim. Because I would grant a COA on Ibarra’s 

Atkins claim to the extent that it is encompassed within Trevino/Martinez, I 

respectfully dissent in part.

 

2 In Trevino, the Supreme Court vacated this court’s judgment that Martinez v. Ryan, 

566 U.S. 1 (2012), did not apply to Texas. In Ibarra’s case, the majority likewise concluded 

that Martinez did not apply to Texas, thus, necessitating remand.

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