### 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
Atki ns claim.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 19, 2018 Lyle W. Cayce Clerk Case: 17-70014 Document: 00514519507 Page: 1 Date Filed: 06/19/2018No. 17

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2 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 ment ally 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 nation als 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 p etition 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 ce rtiorari 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). Case: 17-70014 Document: 00514519507 Page: 2 Date Filed: 06/19/2018No. 17

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3 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 Ibarr a 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 ag gravating 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 r easons: (1) procedural default under then

governing precedent, and (2) alternatively, meritless ness, because Ibarra could not demonstrate prejudice. Ibarra , 691 F.3d at 683. This court held that reasonable jurists “could not disagree with the district co urt’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. T he evidence Ibarra of fered 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 Case: 17-70014 Document: 00514519507 Page: 3 Date Filed: 06/19/2018No. 17

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4 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

- 8 3. 1 The Supreme Court then decided Trevino v. Thaler , 569 U.S. 413, 133 S. Ct. 1911 (2013). On a motion fo r rehear ing, this court granted rehearing in par t and vacated our initial decision “only to the extent
inconsistent with Trevino and grant[ed] a COA only to t hat 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 reman d 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 prerequis ite to reviewing the district court’s denial of habeas relief. M i ller

- El v. Cockrell , 537 U.S. 322, 323, 123 S. Ct. 1029, 1032 (2003). A COA may only be granted w hen the petitioner “has made a substantial showing of the de nial of a constitutional right. ” Id. at 336, 123 S. Ct. at 1039 (internal quotation marks omitted). T his standa rd 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 man ner or that the issues

1 This court also denied COA on the VCCR claim, a holding that has not been challenge d. Case: 17-70014 Document: 00514519507 Page: 4 Date Filed: 06/19/2018No. 17

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5 presented were adequate to deserve enc ouragement 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. C t. 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 prov e 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 (19 91) )

. 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 s tates 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 re sult is reliable.” Strickland , 466 U.S. at 687 , 104 S. Ct. 2064. The State succeeds in establishing procedura l 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 lacke d merit, his initial state Case: 17-70014 Document: 00514519507 Page: 5 Date Filed: 06/19/2018No. 17

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6 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 w ere ineffective for failing to investigate and present additio nal 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 f ar more dire than “humble;” ( 2) extreme physical and emotional abuse perpetrated against Ibarr a as a child by his father; (3) Ibarra’s witnessing extreme physical and emotional abuse perpetrated against loved

one s 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 subaverag e intellectual functioning; (6) Ibarra’s developmental i ntellectual disability; and (7) Ibarra’s development of severe post

- traumatic stress disorder

as a r esult 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 prejudice d 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 whet her 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 habe as 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). Case: 17-70014 Document: 00514519507 Page: 6 Date Filed: 06/19/2018No. 17

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7 was ineffective for not pursuing this claim. Therefore, we gran t 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 th e 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 (5 th Cir. 2016) (remand order after
Trevino did not leave open an y matter other t han 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 e xception to the Section 28 U.S.C. 2254(d) (1) relitigation b ar 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 appea rs 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 p roceeding, 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. Case: 17-70014 Document: 00514519507 Page: 7 Date Filed: 06/19/2018No. 17

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8 him to this day, failed to offer admissible evidence of inte llectual 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 “essen tially no supporting evidence” of intellectual disability in state court. Ibarra , 691 F.3d at 681

- 82. Acc ordingly, a COA on this claim must be denied.
W e 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 dissent ing 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 th at 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

. Case: 17-70014 Document: 00514519507 Page: 8 Date Filed: 06/19/2018No. 17

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9 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 claim s . 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 distric t 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 shoul d 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 ba sed on wha t 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). Alt hough 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 Case: 17-70014 Document: 00514519507 Page: 9 Date Filed: 06/19/2018No. 17

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10 claim had no merit based on the state court record, d espite 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
hi s 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 adequa te 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 Th is 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. Case: 17-70014 Document: 00514519507 Page: 10 Date Filed: 06/19/2018No. 17

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11 As the majority acknowl edges, 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 whethe r 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 ineffectivene ss of Ibarra’s previous counsel is the

reason he benefits from the equitable ruling in Martinez . T he majority cites Cullen v. Pinholster , 563 U.S. 170, 181

- 82 (2011), for the proposition that evidence of intellectual disability may not be considered unles s it was presented in state court. While that typically may be the rule, Pinholster is distinguishable because the c ourt concluded that the defendant was unable to
demonstrate either prong of ineffective assistance of counsel under Strickland v. Washingto n , 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

-- Case: 17-70014 Document: 00514519507 Page: 11 Date Filed: 06/19/2018No. 17

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12 (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). Additionall y, 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) (P etitioner 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 s aid: 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 demons trate 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. Case: 17-70014 Document: 00514519507 Page: 12 Date Filed: 06/19/2018No. 17

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13 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 clai m 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. T hat finding was the result of the majority’s inclusion of language on remand limiting Ibarra’s claims of ineffective assista nce 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 hi s 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 couns el, 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 t o Texas, thus, necessitating remand. Case: 17-70014 Document: 00514519507 Page: 13 Date Filed: 06/19/2018