IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-70011

ROLANDO RUIZ, 

 Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

 Respondent - Appellee

Appeal from the United States District Court for the

Western District of Texas, San Antonio

Before HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Rolando Ruiz murdered Theresa Rodriguez for remuneration on July 14,

1992, a crime for which he has been convicted and sentenced to death. In the 

two decades since, Ruiz has enjoyed the full benefit of the procedural 

protections of the laws of the United States and the State of Texas. With less 

than a month before his execution, Ruiz returns to this Court, asserting that 

we were in error in determining that the Texas Court of Criminal Appeals had 

denied his Wiggins claims on the merits rather than based on state procedural 

grounds. Unpersuaded, we deny the motion to recall mandate.

United States Court of Appeals

Fifth Circuit

FILED

February 21, 2017

Lyle W. Cayce

Clerk
No. 11-70011

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I.

After his direct appeals, Ruiz filed his first state application for a writ of 

habeas corpus on September 15, 1997.1 The Texas Court of Criminal Appeals 

denied relief in an unpublished opinion on April 2, 2003.2 On February 18, 

2004, Ruiz filed his first federal petition for a writ of habeas corpus in the 

Western District of Texas, asserting various claims including, for the first time, 

Wiggins3 claims of ineffective assistance of counsel.4 The district court 

correctly determined that those claims were unexhausted and denied relief.5

We affirmed that decision and denied a certificate of appealability.6

Ruiz subsequently returned to the state courts to press his Wiggins

claims. In 2007, the Texas Court of Criminal Appeals issued an unpublished 

opinion denying relief,7 with a four-judge plurality characterizing the petition

as an abuse of the writ, as well as a separate statement by Judge Womack and 

a dissenting statement by Judge Holcomb. Ruiz then returned to the federal

district court under Rule 60(b), requesting that court set aside its earlier denial 

of relief and arguing that the Texas Court of Criminal Appeals decision 

dismissing his second state habeas petition was a decision on the merits.8 The 

district court determined that “[b]ecause the state appellate court dismissed 

petitioner’s second state habeas application on state writ-abuse principles, 

 1 See Ruiz v. Dretke, No. SA-03-CA-303-OG, 2005 WL 2146119, at *7 (W.D. Tex. Aug. 

29, 2005). 2 Id.

3 Wiggins v. Smith, 539 U.S. 510 (2003). In Wiggins, the Supreme Court held that 

inadequate investigation into mitigating evidence by counsel could constitute ineffective 

assistance of counsel under the Strickland factors. See also Strickland v. Washington, 466 

U.S. 668 (1984).

4 Ruiz, 2005 WL 2146119, at *9.

5 Id. at *12.

6 Ruiz v. Quarterman, 460 F.3d 638 (5th Cir. 2006).

7 Ex parte Ruiz, No. WR-27,328-03, 2007 WL 2011023 (Tex. Crim. App. July 6, 2007).

8 Ruiz v. Quarterman, No. SA-03-CA-303-OG, 2007 WL 2437401 (W.D. Tex. July 10, 

2007).
No. 11-70011

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petitioner has procedurally defaulted on those claims for purposes of federal 

habeas review.”9

We reversed.10 We held that the principles of Michigan v. Long and 

Harris v. Reed11 “give[] to state courts control over the federal review of their 

opinions” by giving them the power to plainly state the grounds their decisions 

rest upon.12 Because we were uncertain that the decision of the Texas Court of 

Criminal appeals turned on state law grounds,13 we determined—as we were 

required to do—that Ruiz’s petition rested on federal law and that “Ruiz’s 

Wiggins claim was properly before the federal district court.”14 Ruiz then 

returned to the district court, which held an evidentiary hearing15—the first 

by any court—and determined that, while Ruiz had persuaded that his 

counsel’s performance was deficient, he had failed to demonstrate the requisite 

prejudice.16

 9 Id. at *4.

10 Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007).

11 Michigan v. Long, 463 U.S. 1032 (1983); Harris v. Reed, 489 U.S. 255 (1989). In 

particular, in Long, the Court held that “when . . . a state court decision fairly appears to rest 

primarily on federal law, or to be interwoven with the federal law, and when the adequacy 

and independence of any possible state law ground is not clear from the face of the opinion, 

we will accept as the most reasonable explanation that the state court decided the case the 

way it did because it believed that federal law required it to do so.” Long, 463 U.S. at 1040-

41; accord Harris, 489 U.S. at 264-65 (rejecting the argument that the “plain statement rule” 

should be replaced with a presumption that state courts rely on independent and adequate 

state law grounds).

12 Ruiz, 504 F.3d at 527.

13 As we discussed in 2007, “[t]he Texas Code of Criminal Procedure, as interpreted 

by the CCA, provides for subsequent applications where (1) the factual or legal basis for the 

subsequent claim was previously unavailable and (2) where the facts alleged would constitute 

a federal constitutional violation that would likely require relief from either the conviction or 

the sentence. The boilerplate dismissal by the CCA of an application for abuse of the writ is 

itself uncertain on this point, being unclear whether the CCA decision was based on the first 

element, a state-law question, or on the second element, a question of federal constitutional 

law.” Id.

14 Id. at 528.

15 Ruiz v. Thaler, 783 F. Supp. 2d 905, 911 (W.D. Tex. 2011).

16 Id. at 940, 947.
No. 11-70011

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We denied Ruiz’s subsequent request for a certificate of appealability.17

While the district court had conducted a de novo examination of Ruiz’s Wiggins

evidence,18 we reviewed that evidence under the deferential standard of 28 

U.S.C. § 2254(d). This followed from our required resolution of uncertainty in 

the state court order in favor of federal jurisdiction.19 We held that “Ruiz’s new 

evidence bears scant resemblance to that adduced in Wiggins and Williams v. 

Taylor, cases in which the Supreme Court found prejudice” and that “[b]ecause 

there is no debatable issue on prejudice, we need not reach the question of 

whether Ruiz’s trial counsel’s failure to introduce the new habeas evidence at 

trial amounted to deficient representation.”20 The Supreme Court denied 

certiorari.21

II.

Ruiz then returned to the Texas courts with a third state habeas 

application. The Texas Court of Criminal Appeals stayed his execution pending 

review before dismissing that petition late last year.22 In that opinion, the 

Texas Court of Criminal appeals stated that “[the 2007 dismissal for abuse of 

the writ] did not address the merits of Ruiz’s IAC claims” and characterized 

this Court’s holding to the contrary as “an innovative way to allow the merits 

of Ruiz’s IAC claims to be addressed by the federal district court.”23 According 

to Ruiz, these statements are evidence of a manifest error in our 2013 opinion. 

Ruiz avers that our decision that the Texas state courts had evaluated his 

Wiggins claims on the merits, and consequently that the § 2254(d) standard of 

 17 Ruiz v. Stephens, 728 F.3d 416 (5th Cir. 2013).

18 Ruiz, 783 F. Supp. 2d at 913.

19 Ruiz, 728 F.3d at 423; see also Ruiz, 504 F.3d at 528.

20 Id. at 427, 429.

21 Ruiz v. Stephens, 134 S. Ct. 2290 (2014).

22 Ex parte Ruiz, Nos. WR-27,328-03 and WR-27,328-04, 2016 WL 6609721 (Tex. Crim. 

App. Nov. 9, 2016).

23 Id. at *4, *17 n.80.
No. 11-70011

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review applied, is “clearly an error” in light of the Texas Court of Criminal 

Appeals’s statements to the contrary. Ruiz urges that this error requires this 

court to recall the mandate in order to prevent injustice.

Our earlier decision was not erroneous. As we explained in our opinion,

the writings of the separate and dissenting judges of the Texas Court of 

Criminal Appeals left us uncertain that its decision was footed in state law.24

The principles of Michigan v. Long and progeny required that we resolve that 

uncertainty in favor of federal jurisdiction.25 We respect the recent repair to its 

order by that able court and its statement of what it intended in its original 

ruling. We respectfully disagree that its intent was then fully effectuated.

Regardless, the fall of the error is now only a muse, for a contrary 

determination would not favor Ruiz, as we would then have not had

jurisdiction to hear those claims.26 Ruiz appears to argue that there is a middle

ground between the deferential standard necessitated by the state court’s “on 

the merits” dismissal of his Wiggins claims and a finding that he had 

procedurally defaulted. Not so. The Supreme Court has held that § 2254(d) 

applies even where the state court issues a summary denial without an 

accompanying statement of reasons.27 “When a federal claim has been 

presented to a state court and the state court has denied relief, it may be 

presumed that the state court adjudicated the claim on the merits in the 

absence of any indication or state-law procedural principles to the contrary.”28

Our holding that the Texas Court of Criminal Appeals dismissed his petition 

 24 Ruiz, 504 F.3d at 527. We discussed the separate writings of two judges. Those 

separate writings were not included in the published order of the court, but were before us. 

We have attached those statements here.

25 Id. at 527-28.

26 Rocha v. Thaler, 619 F.3d 387, 400 (5th Cir. 2010); see also Coleman v. Thompson, 

501 U.S. 722, 730 (1991).

27 Harrington v. Richter, 562 U.S. 86, 98 (2011).

28 Id. at 99; see also Johnson v. Williams, 133 S. Ct. 1088, 1094 (2013).
No. 11-70011

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on the merits necessarily triggered the deferential standard he faced under 

§ 2254(d) when he returned six years later. In short, Ruiz’s Wiggins claims 

have run their course and are drained of purchase.

Ruiz’s motion to withdraw the mandate is denied.
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COURT OF CRIMINAL APPEALS 5129362436 

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IN THE COURT OF CRIMINAL APPEALS 

OF TEXAS 

'WR-27 ,328-03 

·EX PARTE ROLANDO RUIZ 

ON APPLICATION FOR WRIT OF HABEAS CORPUS 

IN CAUSE NO. 92-CR-6718B FROM THE 

2277 " DISTRICT COURT OF BEXAR COUNTY 

Per Curiam. WOMACK, J.,ji/ed a statement respecting the dismissal of the application. 

HOLCOMB, J.,filed a statement dissenting to th~ dismissal of the application in which 

JOHNSON, J.,joins. PRJCE alld HERVEY, JJ., not particip~ting. 

ORDER 

This is a subsequent application for writ of habeas corpus filed pursuant to Texas 

Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts in two claims that 

he failed to receive the effective assistance of counsel dming his trial and post-conviction 

review. 

Applicant was convicted of capital murder on January 18, 1995. We affirmed the 

conviction and sentence on direct appeal. Ruiz v. State, No 72,072 (Tex. Crim. App. 

February 25, 1998). On September 15, 1997, applicant filed his initial application for writ 

of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Ruiz, No. WRp.2 
, I"~ l".06 200 7 3 • 36PH COURT OF CRIMINAL APPEALS 5129362436 

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27,328-02 (Tex. Crim. App.April2, 2003). 

We have reviewed th~ claims and find that they do not meet the requirements for 

consideration of subsequent claims under Article 11.071, Section 5. This application is 

dismissed as an abuse of the writ and the motion for stay of execution is denied. 

IT IS SO ORDERED THIS THE 6rn DAY OF JULY, 2007. , 

Do Not Publish 

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COURT OF CRIMINAL APPEALS 5129362436 

·IN THE COURT OF CRIMINAL APPEALS 

OF TEXAS 

WR-27,328-03 

EX PARTE ROLANDO RUIZ, Applicant 

ON APPLICATION FOR A WRIT OF HABEAS CORPUS 

. FROM BEXAR COUNTY 

WOMACK, J., filed a statement respecting the dismissal of the application. 

I join the Court's order dismissing the subsequent application. 

Rliiz asks us not to apply the statutory restriction on subsequent applications.• He alleges 

that he was denied effective assistance of cotinsel when his trial attorneys failed to present certain 

evidence at the punishment hearing, and his habeas counsel did just as badly by failing to raise 

that claim in his first application. In such circumstances, he argues, the restriction on subsequent 

applications cannot be used to )eave an applicant without a remedy. 

I think this is'a serious and unresolved question, bu~ it is not presented in this case .. 

The evidence in question was of two kinds: certain facts about the applicant's experiences 

during childhood and the opinion of a psychologist. Trial counsel hired the psychologist, 

CODE CRIM. PROC. art. 11.071, § 5. 

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(Ex paste Ruiz. concummce • 2) 

considered his report, and chose not to call him at trial because his findings about the applicant 

would do more harm than good. Ibis was not an 'unreasonable decision. 

The application does not allege that counsel knew of the facts about the applicant's 

childhood, nor does it demonstrate that counsel would have been unreasonable to decide that 

· such facts would have been more harmful · than helpful when the jury considered the issue of the 

applicant's being likely to commit criminal acts of violence in the future. 

·Therefore, it seems to me, we do not reach the question: whether the wrrea.sonable failure 

of a first habeas application to present meritorious claims could ever be surmounted in the courts 

of this state. 

Filed July 6; 2007. 

Do not publish. 

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IN THE COURT OF CRIMINAL APPEALS 

OF TEXAS 

NO. WR-27,328-03 

EXP ARTE ROLANDO RUIZ 

ON APPLICATION FOR WRIT OF HABEAS CORPUS 

IN CAUSE NO. 92-CR-6718B FROM THE 

277~ DISTRICT COURT OF BEXAR COUNTY 

HOLCOMB, J.,ji/ed a statement dissenting to the dismissal of the 

application, joiiled by JOHNSON, J. 

DISSENTING STATEMENT 

In the case before us, the applicant "presents the clear question of whether the State of 

Texas can protect a judgment which rests on ineffective assistance of trial counsel by providing 

habeas counsel who failed to function as post-conviction counsel in any meaningfuJ sense."1 

Thus, the applicant in this case has suffered a violation of his Sixth Amendment right to counsel 

not on one but at both the trial and the state habeas levels of proceedings. Ironically~ it was due 

to the ineffective assistance of counsel in the state habeas proceedings that further deprived the 

applicant from receiving any relief at the federal level, in spite of both the federal district court 

1 Applicant's Subsequent Application for Post-Conviction Relief, at 1. 

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COURT OF ~Rl~INAL APPEALS 5129362436 

RUIZ - Page· 2 

and ~e Fifth Circuit's recognition that applicant had been denied.ineffective assistance by both 

bis trial and state habeas counsels.2 The preSent application is therefore this applicant's final 

means to obtain any meaniogfuJ redress for the significant deprivation of his Sixth Amendment 

rights that he has suffered during the lower court proceedings in this State. 

Unfortunately, and with all due respect, I feel this Court has misinterpreted the 

applicant's actual claim. The question presented is not only whether the applicant's trial counsel 

was ineffective in failing to presenl mitigating evidence at the punishment phase of his capital 

murder trial, but also whether he was ineffective in failing to investigate substantial mitigating 

evidence when they had reason to believe that it might exist. This failure to investigate could, if 

true, support a Sixth Amendment claim for relief, especially after Wiggins v. Smith. 1 upon which 

the applicant principally relies. Indeed, there does appear to be a significant reason for the trial 

. . 

counsel to have believed such evidence existed. Nevertheless, he failed to investigate, let alone · 

bring any mitigating evidence to the Jury's attention. Similarly, the state habeas counsel failed to 

discover, let alone bring such ev.idence to the Court's attention, when he filed the first application 

for writ of habeas corpus on this applicant's behalf. Given what the federal courts found to be 

obvious and glaring failures of both the applicant's trial and state habeas counsels, I believe that 

this applicant should at least have been given a chance to be fairly heard at this, literally final, 

2

See Ruiz v. Dretlce, Memorandwn Opinion and Order of Judge Garcia, August 29, 2005 

(Exhibit 3) (denying habeas relief on procedural grounds due to "[t]he inexplicable faihae of 

petitioner's state babeaS counsel to raise any of these claims during petitioner's state habeas 

corpus proceeding."). See also Ruiz v. Quarter.man, 460 F.3d 638, 644 (5'~ Cir. 2006) (Exhibit 2) 

(similarly denying relief on procedural grounds in spite of acknowledging the district court's 

finding that "trial counsel was ineffective and [its suggestion] that st.ate habeas counsel was 

[likewise] ineffective."). 

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539 U.S. 510 (2003) . . 

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stage of his proceedings. Since the Court declines to .do so, I respectfully dissent. 

FiJed: July 6, 2007 

Do not publish 

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RUIZ- Page3