Ries v. Quarterman, 522 F.3d 517 (5th
Cir. 2008) (Habeas).
Background: Petitioner, who was convicted of
capital murder in Texas state court, sought federal habeas relief.
The United States District Court for the Eastern District of
Texas, Marcia A. Crone, J., 2006 WL 3147384, denied petition.
Petitioner appealed.
Holdings: The Court of Appeals, Emilio M.
Garza, Circuit Judge, held that:
(1) petitioner failed to exhaust claims that trial counsel was
ineffective for failing to introduce the case for mitigation at
voir dire and at closing;
(2) alleged incompetency of petitioner's post-conviction counsel
not good cause for habeas petitioner's procedural default on his
claims that trial counsel was ineffective for failing to introduce
the case for mitigation at voir dire and during closing;
(3) counsel was not ineffective in presenting mitigating evidence
during punishment phase;
(4) counsel was not ineffective in arguing the case for mitigation
during closing;
(5) counsel was not ineffective for failing to assert an objection
to prosecutor's statements during closing;
(6) prosecutor's statements during closing that defendant deserved
to die did not violate due process; and
(7) appellate counsel was not ineffective for failing to challenge
trial court's exclusion of evidence of capital murder defendant's
remorse. Affirmed.
EMILIO M. GARZA, Circuit Judge:
In this death penalty case, petitioner-appellant
Joseph Ray Ries, a Texas state prisoner, appeals the district
court's denial of his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his state court
conviction for capital murder and his sentence of death.
Ries raises four issues. First, Ries argues
that the district court erred in determining that two of his Sixth
Amendment claims for ineffective assistance of counsel were not
exhausted and thus procedurally barred. Second, he argues that his
attorneys at trial were ineffective in their presentation of
mitigation evidence during the penalty phase of his trial. Third,
Ries argues that his trial attorneys were ineffective for failing
to object to several statements in the prosecutor's closing
argument. Finally, he argues that his appellate counsel was
ineffective for failing to raise on appeal a claim that the
district court erred in redacting statements of remorse from a
video-taped confession by Ries.
For the following reasons, we AFFIRM the
judgment of the district court.
I
Ries was convicted of capital murder in Texas
state court for intentionally causing the death of Robert Ratliff
by shooting him in the course of a burglary. Texas Penal Code §
19.03(a)(2). The Texas Court of Criminal Appeals summarized the
evidence supporting Ries's conviction as follows:
The evidence showed that [Ries] first met
Robert Ratliff, the victim, in the fall of 1998. They formed a
friendship, and at some point, [Ries] moved in to live with
Ratliff. However, there was later a dispute about missing property,
and [Ries] was evicted from Ratliff's house.
On February 18, 1999, [Ries] and several
associates stole a pickup truck from Ratliff's residence. [Ries]
and Christopher White drove to San Antonio in the truck, but
because the pickup did not get good gas mileage, they decided to
return to the Ratliff residence and take a Lincoln Continental.
They arrived at Ratliff's place on the evening of February 21st,
but neither Ratliff nor his Lincoln Continental was present. [Ries]
and White broke into the house and took some items, including two
.22 rifles.
Later that evening, they drove the pickup into
a pond, so that the truck was completely submerged. Hiding behind
a barn, they watched Ratliff come home and waited until the lights
in the house were turned off (approximately thirty minutes later).
[Ries] and White then entered the house. [Ries]
sneaked into Ratliff's bedroom and took the victim's wallet and
car keys. Before exiting the room, [Ries] shot Ratliff in the back
as he slept in bed. The victim then awoke, and [Ries] shot him in
the neck. Hearing the noise, White entered the room and asked what
had happened. [Ries] sent White out of the room and fired one last,
fatal shot behind the victim's ear. [Ries] and White then took the
Lincoln Continental and drove away. Ries v. State, No. 73, 737, at
2-3 (Tex.Crim.App. June 12, 2002). Following the penalty phase of
the trial, based on the jury's answers to the Texas special
sentencing issues, the trial court sentenced Ries to death.
The Court of Criminal Appeals affirmed Ries's
conviction and sentence on direct appeal. Ries did not seek
certiorari review. Subsequently, Ries filed a state post-conviction
application for a writ of habeas corpus, which the Court of
Criminal Appeals denied. Ries filed this petition for federal
habeas relief, which the district court denied. See Ries v.
Quarterman, No. 1:04-CV-367, 2006 WL 3147384 (E.D.Tex. Oct. 31,
2006). Ries timely filed his notice of appeal, and the district
court granted a Certificate of Appealability on all of Ries's
claims.
II
“In a habeas corpus appeal, we review the
district court's findings of fact for clear error and review its
conclusions of law de novo, applying the same standard of review
to the state court's decision as the district court.” Thompson v.
Cain, 161 F.3d 802, 805 (5th Cir.1998).
Because Ries filed his federal habeas petition
after the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), the district court's federal habeas
review was governed by AEDPA. Under AEDPA, habeas relief is not
available to a state prisoner with respect to any claim that was
adjudicated on the merits in State court proceedings unless the
adjudication of the claim-
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. 28 U.S.C. § 2254(d).
“Under AEDPA, our duty is to determine whether the state court's
determination was contrary to or an unreasonable application of
clearly established federal law as determined by the Supreme Court
at the time that [Ries's] conviction became final” in 2002.FN1
Nelson v. Quarterman, 472 F.3d 287, 293 (5th Cir.2006) (en banc) (citing
Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d
389 (2000)); Peterson v. Cain, 302 F.3d 508, 511 (5th Cir.2002)
(“[F]ederal habeas courts must deny relief that is contingent upon
a rule of law not clearly established at the time the state
conviction becomes final.”).
FN1. A state conviction becomes final when the
time for direct review has expired, regardless of when the state
court issues its mandate. See Flores v. Quarterman, 467 F.3d 484,
485 (5th Cir.2006) (per curiam) (citing Roberts v. Cockrell, 319
F.3d 690, 694 (5th Cir.2003)). Here, Ries's conviction and
sentence were affirmed on direct appeal on June 12, 2002. Because
Ries did not seek certiorari review, his conviction became final
ninety days later, following the expiration of the time to seek
such review. Roberts, 319 F.3d at 694.
A state court decision is contrary to clearly
established Supreme Court precedent if: (1) “the state court
applies a rule that contradicts the governing law set forth in [the
Supreme Court's] cases,” or (2) “the state court confronts a set
of facts that are materially indistinguishable from a decision of
[the Supreme] Court and nevertheless arrives at a result different
from [Supreme Court] precedent.” Williams, 529 U.S. at 405-06, 120
S.Ct. 1495. A state court decision is an unreasonable application
of clearly established Supreme Court precedent if the state court
“correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner's case.” Id. at
407-08, 120 S.Ct. 1495. The inquiry into unreasonableness is
objective. Id. at 409-10, 120 S.Ct. 1495.
A state court's incorrect application of
clearly established Supreme Court precedent is not enough to
warrant federal habeas relief; such an application must also be
unreasonable. Id. at 410-12, 120 S.Ct. 1495. The state court's
factual findings are presumed to be correct, and the habeas
petitioner has the burden of rebutting that presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).
III
Ries first argues that the district court erred
in dismissing two of his claims for failure to exhaust. In his
state habeas petition, Ries claimed that his trial counsel
provided ineffective assistance under the Sixth Amendment for
failing to “effectively marshal” and to “present” mitigating
evidence during the penalty phase of his trial. In his federal
habeas petition, Ries asserted the broad claim that trial counsel
failed adequately to present the defense's case on mitigation of
punishment.
Ries sub-divided this broad claim into three
distinct claims, each focusing on a particular phase of his state
trial: (1) trial counsel was ineffective in failing to voir dire
the jury panel on mitigating evidence; (2) trial counsel was
ineffective in the presentation of mitigating evidence during the
penalty phase of the trial; and (3) trial counsel was ineffective
in arguing the case for mitigation in closing, following the
penalty phase of the trial.
The district court concluded that only Ries's
second sub-claim, that trial counsel was ineffective in the
presentation of mitigation evidence during the penalty phase of
the trial, was fairly presented to the state courts. The district
court determined that Ries's first and third sub-claims were not
fairly presented to the state courts and, as a result, were
unexhausted and procedurally barred. Ries argues that his state
claim necessarily invited scrutiny of all aspects of counsel's
trial performance with respect to mitigation and thus the district
court erred in concluding that his first and third claims were
unexhausted.
Pursuant to 28 U.S.C. § 2254(b)(1)(A), “[a]n
application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted unless it appears that the applicant has exhausted the
remedies available in the courts of the State.” See Moore v.
Quarterman, 491 F.3d 213, 220 (5th Cir.2007). “The exhaustion
requirement ‘is not jurisdictional, but reflects a policy of
federal-state comity designed to give the State an initial
opportunity to pass upon and correct alleged violations of its
prisoners' federal rights.’ ” Id. (quoting Anderson v. Johnson,
338 F.3d 382, 386 (5th Cir.2003)). Whether the petitioner has
exhausted state remedies is a question of law, which we review de
novo. Id.; Morris v. Dretke, 413 F.3d 484, 491 (5th Cir.2005).
To satisfy the exhaustion requirement, the
petitioner must fairly present the substance of his federal habeas
claim to the highest state court. Vasquez v. Hillery, 474 U.S.
254, 257-58, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); Morris, 413
F.3d at 491. However, “[t]he habeas applicant need not spell out
each syllable of the claim before the state court to satisfy the
exhaustion requirement.” Smith v. Dretke, 422 F.3d 269, 275 (5th
Cir.2005) (citing Lamberti v. Wainwright, 513 F.2d 277, 282 (5th
Cir.1975)); Anderson, 338 F.3d at 386-87 (“[A]s a general rule,
dismissal is not required when evidence presented for the first
time in a habeas proceeding supplements, but does not
fundamentally alter, the claim presented to the state courts.” (quotation
marks and emphases omitted)). Nonetheless, the exhaustion
requirement “is not satisfied if the petitioner presents new legal
theories or factual claims in his federal habeas petition.”
Anderson, 338 F.3d at 386. “The exhaustion inquiry ... is
necessarily case and fact specific.” Morris, 413 F.3d at 491.
Failure to exhaust generally is a procedural
bar to federal habeas review, but the bar may be excused if the
petitioner “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.” Coleman v. Thompson, 501 U.S.
722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Morris, 413 F.3d
at 491-92.
The question here is whether Ries's state
habeas claim-that trial counsel was ineffective for failing to
“effectively marshal” and to “present” mitigating evidence-fairly
presented to the state courts the substance of his federal habeas
claims that trial counsel was ineffective for failing to introduce
the case for mitigation at voir dire and for failing to adequately
argue the case for mitigation in closing. Ries attempts to
construe his vague state habeas claim as a broad challenge to
trial counsel's treatment of the mitigation defense at trial, from
start ( voir dire) to finish (closing).
The district court rejected Ries's effort to
construe his state claim so broadly. Despite the broad language
used in Ries's state habeas application, the district court
concluded that the ineffectiveness challenge based on mitigation
that Ries presented to the state courts was focused and specific:
that his attorneys should have questioned witnesses more
extensively and elicited more detailed testimony on the various
exhibits admitted into evidence, which related to Ries's abusive
and deprived upbringing.
Because the district court concluded that
Ries's state habeas claim focused on the actual introduction of
mitigating evidence through documentary evidence and witness
testimony, the district court reasoned that Ries's federal habeas
claims predicated on counsel's alleged deficient handling of the
mitigation defense at other stages of the trial, voir dire and
closing, were not fairly presented to the state courts. We agree
with the district court.
Ries's ineffectiveness claim in state court
focused on the introduction of mitigating evidence. Specifically,
his application provided: Defense counsel clearly were aware of
the potentially mitigating evidence in the State's exhibits, yet
counsel did nothing to effectively marshal this evidence or
subpoena witnesses from Applicant's past ...
* * *
Here, in the instant case, while counsels'
[sic] performance may have been satisfactory in the guilt stage of
the trial, the grievous error of counsel's failure to provide any
mitigation evidence at the punishment stage in light of the clear
availability of such evidence falls below a reasonableness
standard, and thereby violated Strickland's first prong.
* * *
As [the evidence that was admitted] was
presented to the jury, it was a big fat file of extensive records
... presumptively indicating life-long recidivism, an incorrigible
refusal to conform, and early indications of continuing danger
.... Applicant would show that the global failure of counsel to
present any mitigating evidence clearly undermines this verdict,
and warrants reversal.FN2
FN2. As the parties note, as the district court
noted, and as we note here, parts of the state habeas application
appear to have been taken from another case because certain
factual assertions in the state claim, which have been excised
from this quotation, do not fit the facts of Ries's case. We agree
with the district court that such lapses of state post-conviction
counsel are unfortunate in light of the fact that a habeas
petitioner cannot raise the ineffectiveness of state post-conviction
counsel to avoid any resultant procedural bar. See Martinez v.
Johnson, 255 F.3d 229, 240-41 (5th Cir.2001).
The Texas Court of Criminal Appeals, when
presented with Ries's state habeas application, initially denied
all of his claims for relief, with one exception: Ries's claim
that “he was denied effective assistance of counsel because his
trial attorneys failed to present any mitigation evidence at the
punishment phase of his trial.” Ex Parte Ries, No. 57,892-01, at 2
(Tex.Crim.App. Mar. 3, 2004). The Court of Criminal Appeals
remanded with instructions:
There is nothing in the habeas corpus record to
indicate why counsel chose not to present mitigation evidence.
Therefore, this cause is remanded to the trial court so that the
habeas corpus record can be supplemented with an affidavit from
counsel explaining why they chose not to present mitigation
evidence at the punishment phase of Appellant's trial. Id.
Counsel subsequently provided that affidavit,
explaining all of the evidence of mitigation that was presented
throughout the entire course of the trial, at both the guilt-innocence
and the penalty phases of the trial. After receiving that
affidavit, the Court of Criminal Appeals denied Ries's ineffective
assistance claim based on mitigation, stating: “We have reviewed
the affidavit and find that Applicant has failed to show that
counsel were ineffective.” Ex Parte Ries, 57-892-01, at 2 (Tex.Crim.App.
May 19, 2004).
Ries did not fairly present to the state courts
the substance of his claim that trial counsel was ineffective in
failing to explore the issue of mitigation during voir dire.
Ries's state habeas application does not mention the issue of
trial counsel's failure to discuss mitigation during voir dire;
rather, the state application focuses specifically on the penalty
phase of the trial. Also instructive, the Court of Criminal
Appeals did not consider or address this voir dire issue.
The presentation of mitigating evidence, the
critical act on which Ries based his state habeas claim of
ineffective assistance of counsel, is not something that Texas
courts would likely permit during voir dire. See, e.g., Cadoree v.
State, 810 S.W.2d 786, 789 (Tex.App.-Houston [14th Dist.] 1991,
writ ref'd) (“Although allowing questions designed to ascertain
the juror's views and sentiments on social and moral subjects
generally, the courts do not permit a hypothetical case to be
submitted; nor do they allow questions designed to bring out
juror's views on the case to be tried.” (emphasis added)).
The presentation of evidence in Texas state
courts occurs only after a jury is impaneled, and thus after voir
dire occurs. See Tex.Code Crim. Pro. Art. 36.01 (detailing the
order of proceedings in a criminal trial). For these reasons, the
substance of Ries's ineffective assistance claim based on trial
counsels' failure to voir dire on mitigation was not fairly
presented to the state court. The district court thus correctly
concluded that this claim was unexhausted and procedurally barred.
While a closer question, Ries also failed to
exhaust his claim that trial counsel was ineffective in arguing
the case for mitigation in closing argument. Ries framed his state
claim as a challenge to trial counsel's introduction of exhibits
and testimony on mitigation at the penalty phase of the trial.
Indeed, the claim is specifically addressed to counsel's alleged
failure to provide any mitigating evidence, a point on which the
Court of Criminal Appeals remanded the case, and the point to
which trial counsel's affidavit responds. Regardless, Ries's state
habeas application does not mention any specific deficiencies with
respect to trial counsel's closing argument; as such, nothing
about Ries's state claim would have placed the state courts on
notice that Ries was asserting a specific claim based on trial
counsel's closing argument.
Moreover, while the issue of ineffective
assistance was explored during a state writ hearing, nothing in
the transcript of that state hearing indicates that trial
counsel's treatment of mitigation in closing argument was at
issue.FN3 Instead, the transcript indicates that the
ineffectiveness claim related to mitigation focused on trial
counsel's introduction of exhibits and testimony, not trial
counsel's closing argument. Ries did not fairly present to the
state courts his claim that trial counsel ineffectively argued
mitigation in closing. As such, the district court correctly
concluded that this claim was unexhausted and procedurally
barred.FN4
FN3. The transcript of the state writ hearing
was not included in the record considered by the district court.
This court granted the State's unopposed motion to supplement the
record on appeal to include this transcript, which according to
the State, was missing from the record that the district court
received from the Texas Court of Criminal Appeals.
FN4. This case is distinguishable from Vela v.
Estelle, 708 F.2d 954 (5th Cir.1983), relied on by Ries. There we
concluded that allegations asserted in the petitioner's federal
habeas petition that were not expressly enumerated in his prior
state habeas brief were nevertheless fully exhausted. Id. at
960-61. However, in Vela, the narrower, previously unarticulated
allegations fell within the scope of the broad ineffective
assistance claim asserted in that case, which had been fairly
presented to and decided by the state court. See id. at 959-60.
Here, in contrast, Ries's previously
unarticulated mitigation claims based on voir dire and closing
argument fall outside the scope of his ineffective assistance
claim based on the presentation of mitigation evidence, properly
construed to refer to the introduction of witness testimony and
documentary evidence; there is no indication that the state court
considered, much less decided, either the voir dire mitigation
claim or the closing argument mitigation claim. As such, the
substance of these claims was not fairly presented to the state
court.Ries also relies on Smith v. Dretke, 422 F.3d 269 (5th
Cir.2005). That case, however, involved a request for a
Certificate of Appealability and thus merely addressed whether
“jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id. at 274. Given
that case's procedural posture, it offers little guidance.
In sum, the district court properly dismissed
Ries's challenge to trial counsel's use of mitigation at voir dire
and discussion of mitigation in closing argument as unexhausted
and procedurally barred.FN5
FN5. Ries argues that this procedural default
should be excused based on the deficient performance of his state
habeas counsel. However, he acknowledges that the ineffective
assistance of state habeas counsel cannot provide cause to excuse
a procedural default. See Elizalde v. Dretke, 362 F.3d 323, 330
(5th Cir.2004). He therefore argues instead that his right to
competent post-conviction counsel under Texas state law, Tex.Code
Crim. Pro. Art. 11.071 § 2(a), was violated and seeks to establish
cause on this basis. See Ex parte Graves, 70 S.W.3d 103, 114 n. 45
(Tex.Crim.App.2002). However, state post-conviction counsel need
only be “competent” at the time of appointment, in terms of
qualifications, experience, and abilities. Id. at 114. Competence
refers only to the initial appointment “rather than the final
product of representation.” Id.
Here, Ries has not shown that his counsel was
not competent at the time of appointment. His claim of
incompetence is based solely on the state habeas petition his
counsel prepared, “the final product of representation.” Therefore,
even assuming arguendo that Graves applied, an issue we expressly
decline to reach, Ries has not satisfied the standard articulated
in that case. Ries provides no other basis for excusing this
procedural default.
IV
Turning to the merits, Ries's federal habeas
petition consists of several claims of ineffective assistance of
counsel. These claims are governed by the familiar framework of
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). Ries must establish: (1) “that counsel's
representation fell below an objective standard of reasonableness”
and (2) that the deficient representation caused prejudice, which
requires a showing that there is a “reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Williams, 529 U.S. at
390-91, 120 S.Ct. 1495 (quoting Strickland, 466 U.S. at 688, 694,
104 S.Ct. 2052). Our scrutiny of counsel's performance is “highly
deferential” and there is a “strong presumption” that any alleged
deficiency “falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
A
As discussed above, Ries claims that trial
counsel was ineffective in presenting the defense's case for
mitigation. He presents this claim as several sub-claims, only one
of which is exhausted: trial counsel was ineffective in the
presentation of mitigating evidence during the punishment phase of
his trial. This claim refers to the manner and means in which
Ries's trial counsel introduced witness testimony and documentary
evidence on mitigation during the punishment phase of the trial.
We first consider this claim.
Ries claims that his trial counsel was
ineffective in presenting mitigating evidence at the penalty phase
of his trial. To clarify the scope of this claim, Ries does not
argue that his trial counsel failed to investigate and discover
mitigating evidence that was essential to Ries's case on
punishment. Ries also does not argue that trial counsel failed to
“present” mitigating evidence in the sense that specific, material
mitigating evidence was never placed before the jury. On the
contrary, Ries constructs this claim of ineffective assistance
based entirely on exhibits that were actually admitted into
evidence and available for the jury's review, including voluminous
records from the Texas Child Protective Services (“CPS”), which
were admitted into evidence by agreement of the parties.
Ries argues that trial counsel used these
exhibits ineptly, failing to construct a compelling case for
mitigation based on a graphic description of Ries's abuse-filled
social history. Ries essentially argues that his counsel could
have performed better. Ries also argues that trial counsel's
decision to admit the large stack of CPS records and to highlight
or ignore specific aspects of that record were not strategic
choices to which this court owes any special deference.
However, in an affidavit submitted by Ries's
trial counsel to the Court of Criminal Appeals, trial counsel
summarized the mitigation evidence presented during the guilt-innocence
phase and penalty phase of the trial and stated the belief that
the exhibits and witness testimony “gave sufficient evidence to
show mitigating factors.” As stated in the affidavit, the record
contains testimony about factors that could be considered
mitigating, including Ries's history of abandonment, neglect,
physical and sexual abuse, various adoptions, repeated placements
in foster homes or State facilities, his high intelligence, and
his college enrollment.
In Strickland, the Supreme Court explained that
“strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable;
and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.”
466 U.S. at 690-91, 104 S.Ct. 2052.
Ries challenges whether the decision to admit
the stack of CPS records allegedly without careful consideration
of the contents of each exhibit constitutes a strategic choice. He
offers alternative ways, and in his view better ways, in which his
case could have been presented in an apparent effort to show that
counsel's failure to make better use of the records can only be
attributed to counsel's ignorance of the record's contents, not
strategy.
However, trial counsel offered testimony on
this issue at a state writ hearing, testimony that undercuts
Ries's allegation that trial counsel's decision to admit the
voluminous CPS records was not a strategic choice. At the state
writ hearing, trial counsel testified that one reason for
admitting the entire stack of CPS records was to impress upon the
jury, through the sheer weight and volume of the records, Ries's
extensive history as a ward of the State.
Trial counsel further stated that the witnesses
he called were able to sufficiently convey that aspect of
mitigating evidence the defense sought foremost to highlight for
the jury: Ries's troubled childhood. Calling additional witnesses,
trial counsel admitted, might have been counterproductive,
resulting in the introduction of evidence harmful to the defense's
case. Trial counsel further stated that admitting the entire stack
of records was a “gamble,” whereby they “took the good with the
bad.”
In light of this testimony, together with the
affidavit submitted by Ries's trial counsel, Ries has failed to
overcome the strong presumption that his counsel's alleged
deficiency, admitting the entire stack of CPS records without
developing certain exhibits, falls within the wide range of
reasonable professional assistance. Indeed, based on the testimony,
it appears that the admission of the records, and the emphasis
placed on the individual exhibits, was-despite Ries's argument to
the contrary-a strategic choice, which under Strickland renders
the choice “virtually unchallengeable.” See Taylor v. Maggio, 727
F.2d 341, 347-48 (5th Cir.1984) (“[T]he failure to present a
particular line of argument or evidence is presumed to have been
the result of strategic choice.” (emphasis added)).
Ries nonetheless attempts to fit this case
within the facts of Williams v. Taylor, 529 U.S. 362, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000) and Wiggins v. Smith, 539 U.S. 510,
123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). FN6 These cases are
distinguishable. Williams and Wiggins both involved counsel's
failure to introduce relevant mitigating evidence following a
failure to investigate that was not based on reasonable
professional judgment. See Wiggins, 539 U.S. at 523, 123 S.Ct.
2527 (“[W]e focus on whether the investigation supporting
counsel's decision not to introduce mitigating evidence of Wiggins'
background was itself reasonable.”); Williams, 529 U.S. at 395-96,
120 S.Ct. 1495 (“[Counsel] failed to conduct an investigation that
would have uncovered extensive records graphically describing
Williams' nightmarish childhood, not because of any strategic
calculation but because they incorrectly thought that state law
barred access to such records.”).
FN6. Although Wiggins was decided after Ries's
conviction became final, Wiggins applies to the state court's
resolution of Ries's claims because Wiggins did not announce “new”
law, but merely applied Strickland. Coble v. Quarterman, 496 F.3d
430, 441 n. 5 (5th Cir.2007).
Unlike Wiggins and Williams, the failure to
investigate relevant social history is not at issue here. The
claim here boils down to a disagreement with the manner and style
in which trial counsel elected to present mitigating evidence, a
choice which appears to have been strategic. See, e.g., Coble, 496
F.3d at 441 (concluding that petitioner's reliance on Wiggins and
Williams failed where the petitioner was essentially challenging
the strategic decisions of counsel).
Again, Ries suggests that counsel's decision
not to elicit testimony highlighting certain parts of the CPS
records was not a strategic choice. Ries argues that the only
explanation for trial counsel's failure was that trial counsel did
not know what was actually contained within the records. Yet, to
support his allegation that trial counsel essentially ignored
aspects of the CPS record, Ries offers only his view on better
methods for presenting the evidence to the jury.
We agree with Ries and the district court that
trial counsel might have done more to highlight particular
portions of Ries's social history in an effort to elicit more
sympathy from the jury based on Ries's past. However, on this
record, Ries has failed to overcome the strong presumption that
counsel's alleged deficiency falls within the wide range of
reasonable professional assistance. As such, we cannot conclude
that the state court's resolution of this claim was objectively
unreasonable.
As discussed above, Ries's claim that his trial
counsel was ineffective in arguing the case for mitigation during
closing argument is unexhausted and procedurally barred. But even
assuming that claim were exhausted, it nonetheless fails. As the
Supreme Court explained in Yarborough v. Gentry: [C]ounsel has
wide latitude in deciding how best to represent a client, and
deference to counsel's tactical decisions in his closing
presentation is particularly important because of the broad range
of legitimate defense strategy at that stage .... Judicial review
of a defense attorney's summation is therefore highly deferential-and
doubly deferential when it is conducted through the lens of
federal habeas. 540 U.S. 1, 5-6, 124 S.Ct. 1, 157 L.Ed.2d 1
(2003).
The closing argument was a bit unusual in that
defense counsel delivered the closing by speaking directly to Ries.
While the closing was hardly a model of excellence, it did
highlight potentially mitigating evidence, touching at various
points on, among other things, Ries's background of physical and
sexual abuse and history of abandonment. The central theme of the
argument, however, appears to have been one of acceptance of
responsibility. While Ries may now wish that his trial counsel had
presented a different closing argument, “[Ries's] desire to have a
specific defense theory presented does not amount to ineffective
assistance on federal habeas review.” Coble, 496 F.3d at 437 (citing
Johnson v. Cockrell, 301 F.3d 234, 239 (5th Cir.2002)). Thus, even
assuming that Ries exhausted this claim, it is without merit.
B
Ries next argues that his trial counsel was
ineffective for failing to object to two statements during the
prosecutor's closing argument, specifically, the prosecutor's
rebuttal.
First, addressing Ries directly, the prosecutor
stated: I have never asked a jury, Joey, to do something that I
can't do myself. And on the evidence in this case I can release
the poison. You know it and you deserve to die. That's why we're
here.
Shortly thereafter, the prosecutor opined: Why
do we have the death penalty? I know some of you on the jury have
thought about the death penalty and why, we as a country and we as
a state, believe it's important. I can tell you why I think it is.
I believe that when you take a human life, that if you as a
society and you as a group of people, do not value the life long
enough to take a murderer's life, then you are not going to last
very long.
Ries argues that these statements were
objectionable under both state and federal law and that his trial
counsel was thus ineffective for failing to object. In order to
show that counsel was deficient for failing to object under the
first prong of Strickland, the objection must have merit. Turner.
v. Quarterman, 481 F.3d 292, 298 (5th Cir.2007).
First, Ries relies on the Supreme Court's
decision in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84
L.Ed.2d 1 (1985) to support his claim that the prosecutor's
statements were improper under federal law. Young involved a
federal prosecution in which the Court applied the plain error
doctrine, as embodied in Federal Rule of Criminal Procedure 52(b),
to a prosecutor's allegedly improper remarks during summation.
Young is an example of the Supreme Court's broad supervisory
authority to regulate the conduct of federal prosecutors appearing
in federal court. However, Young did not present any federal
constitutional issue and contained no indication that the
standards it imposed were binding in any way on state courts or
state prosecutors.
As we have explained, “federal courts may not,
in a habeas corpus proceeding, impose the same standards upon
state prosecutors that they apply to federal prosecutors in cases
on direct appeal.” Kirkpatrick v. Blackburn, 777 F.2d 272, 281
(5th Cir.1985) (per curiam); Whittington v. Estelle, 704 F.2d
1418, 1422 (5th Cir.1983). Because Young does not apply to state
courts, Ries's trial counsel was not deficient for failing to
assert an objection on the basis of Young. Likewise, Young cannot
be used to challenge the decision of the state habeas court.FN7
FN7. There is a line of federal authority
addressing federal due process challenges to statements made
during a prosecutor's summation. See Darden v. Wainwright, 477 U.S.
168, 180, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Caldwell v.
Mississippi, 472 U.S. 320, 337-38, 105 S.Ct. 2633, 86 L.Ed.2d 231
(1985); Rogers v. Lynaugh, 848 F.2d 606, 608 (5th Cir.1988) (explaining
this “generic substantive due process violation”).
While the states are free to develop their own
standards to govern the conduct of state prosecutors, the due
process clause of the Fourteenth Amendment provides an independent
check on a prosecutor's comments that “so infected the trial with
unfairness as to make the resulting conviction [or sentence] a
denial of due process.” Rogers, 848 F.2d at 608 (quoting Darden,
477 U.S. at 181, 106 S.Ct. 2464) (alteration in original); see
also Whittington, 704 F.2d at 1422 (noting that while a federal
habeas court may not impose federal supervisory standards on state
courts, “we can and are required to make an independent
determination of what is fair under the Constitution”).
In this case, however, the petitioner has not
invoked this line of authority or argued that the prosecutor's
comments were so egregious as to violate due process. Regardless,
while the prosecutor's statements may have been dramatic, we
cannot conclude that the statements so infected the trial with
unfairness as to make the resulting conviction a denial of due
process, particularly where, as we explain below, the prosecutor's
comments were to some extent invited by defense counsel's
summation. See Darden, 477 U.S. at 182, 106 S.Ct. 2464 (“[T]he
idea of ‘invited response’ is used not to excuse improper comments,
but to determine their effect on the trial as a whole.”). This
case is a far cry from Caldwell, for example, where the prosecutor
argued to the jury that its decision was not a final one because
the decision could be automatically reviewed by the state Supreme
Court, thus inviting the jury to minimize its sense of
responsibility for determining the appropriateness of death and
rendering the death sentence imposed in that case fundamentally
unfair. 472 U.S. at 325-26, 341, 105 S.Ct. 2633.
We also cannot conclude that trial counsel was
ineffective for failing to object under Texas state law. With
respect to the prosecutor's first statement, expressing his
personal opinion that Ries “deserve[d] to die,” the district court
concluded that this statement was invited by the closing argument
of defense counsel, and therefore, had counsel objected, the
objection would have been overruled as invited error.FN8 See, e.g.,
Hannah v. State, 624 S.W.2d 750, 754 (Tex.App.-Houston [14th
Dist.] 1981, writ ref'd) (concluding that prosecutor's statement
was invited by defense counsel's argument and therefore the
objection to the statement was properly overruled) (“My job as a
prosecutor is to seek justice. I dismiss cases when there is not
sufficient evidence to support what has occurred.”). The style and
structure of defense counsel's closing argument, a one-sided
conversation with the defendant, invited the prosecutor to employ
the same rhetorical device and speak directly to the defendant.
Also, as the district court noted, defense
counsel's statements such as “I'm going to ask the twelve people
to give you the rest of your life to explore your potential and to
use it” and “I hope you will be given that opportunity” injected-at
least to some extent-defense counsel's own personal opinion,
inviting the prosecutor to do the same. Finally, the Texas Court
of Criminal Appeals has found no reversible error based on similar
statements made by prosecutors in summation. Myers v. State, 468
S.W.2d 847, 848-49 (Tex.Crim.App.1971) (“Now, I would be a
charlatan or a hypocrite to ask you to do something that I didn't
feel deep in my heart was justified, and I wouldn't ask you to do
anything I couldn't do.”); Lacy v. State, 374 S.W.2d 244, 245 (Tex.Crim.App.1964)
(“I believe from the evidence presented here that the Defendant is
guilty.”).
In light of these considerations, Ries's trial
counsel was not deficient for failing to object to the
prosecutor's first comment. Likewise, because the objection was of
questionable merit, Ries has not shown a reasonable probability
that the objection would have been sustained. Ries's trial counsel
thus was not ineffective for failing to object to the prosecutor's
first statement.
FN8. The state court never expressly ruled on
this statement; nonetheless, the district court deemed the claim
exhausted and addressed it on the merits, as do we.
As to the prosecutor's second statement (“Why
do we have the death penalty?”), the state court determined under
state law that the statement was proper as a plea for law
enforcement. “[I]n our role as a federal habeas court, we cannot
review the correctness of the state habeas court's interpretation
of state law.” Young v. Dretke, 356 F.3d 616, 628 (5th Cir.2004).
Accepting the state court's conclusion based on state law that the
objection had no merit, counsel was not ineffective for failing to
make it.
We neither condone nor condemn the prosecutor's
comments, and we take no position on whether those comments would
be proper as a matter of federal trial practice. However, we
conclude that the state court's determination that Ries failed to
establish ineffective assistance based on trial counsel's failure
to object to the prosecutor's comments was not objectively
unreasonable.
C
Finally, Ries argues that his appellate counsel
was ineffective for failing to challenge on appeal the trial
court's exclusion of evidence of Ries's remorse.
The Strickland analysis also applies to claims
of ineffective assistance of appellate counsel. Amador v.
Quarterman, 458 F.3d 397, 411 (5th Cir.2006); United States v.
Reinhart, 357 F.3d 521, 525 (5th Cir.2004). “Counsel need not
raise every nonfrivolous ground of appeal, but should instead
present solid, meritorious arguments based on directly controlling
precedent.” Schaetzle v. Cockrell, 343 F.3d 440, 445 (5th
Cir.2003) (internal quotation marks and alterations omitted).
Ries argues, in essence, that appellate counsel
failed to raise a slam dunk issue on appeal-an issue that was
properly preserved, plainly meritorious, and would have resulted
in a reversal of his sentence. We reject Ries's argument because
we disagree that the issue was properly preserved.
During the guilt-innocence phase of Ries's
trial, the State sought to introduce a video-taped confession by
Ries, in which the State redacted the apology portion of his
confession (that part containing Ries's expression of remorse) and
several references to extraneous offenses. Defense counsel
objected to redaction of the apology portion, but the trial court
overruled the objection, concluding that it was a self-serving
hearsay statement. Ries does not argue in his opening brief that
the redaction of the apology portion was improper for guilt-innocence
purposes.FN9
FN9. Ries does, however, seem to challenge the
guilt-innocence phase ruling in his reply brief, arguing that the
redacted apology portion of the video also included a statement
that Ries had no intention of killing his victim. Because Ries
raises this argument for the first time in his reply brief, we
consider it waived. See United States v. Fields, 483 F.3d 313, 352
n. 36 (5th Cir.2007). In any event, a challenge to the state
court's ruling for guilt-innocence purposes was not so clearly
meritorious as to form a basis for an ineffective assistance of
appellate counsel claim. See, e.g., Allridge v. State, 762 S.W.2d
146, 152-53 (Tex.Cr.App.1988) (en banc) (concluding that the rule
of “completeness,” which applies when other evidence presented has
been incomplete or misleading, did not apply to admit the
defendant's self-serving hearsay testimony).
Instead, Ries argues that the redaction was
improper because the apology portion of the tape constituted
highly relevant and reliable mitigating evidence that should not
have been excluded on the basis of a state hearsay rule. See Green
v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979)
(per curiam). Ries argues that the exclusion of this evidence of
remorse precluded him from presenting this relevant mitigating
evidence during the penalty phase of his trial. Exacerbating the
issue, Ries points out that at the penalty phase of the trial,
during the State's closing argument, the prosecutor relied on
portions of Ries's confession, while making several references to
Ries's lack of remorse. Ries argues that he was “hamstrung” by the
trial court's exclusion of the apology portion of his confession,
unable to effectively rebut the prosecutor's argument about lack
of remorse.
At no point, however, did Ries ever object to
the redaction on the grounds that the district court impermissibly
excluded relevant mitigating evidence at the penalty phase of the
trial. Ries also never objected to the prosecutor's statements
regarding lack of remorse and never sought to introduce the
apology portion during the penalty phase of his trial as
mitigating evidence or to rebut the prosecutor's statement
regarding lack of remorse. As the State points out, Ries conflates
the trial court's guilt-innocence-redaction ruling with his
argument that the redaction ruling was improper for purposes of
the penalty phase of the trial because it excluded relevant
mitigating evidence. Although Ries preserved an objection to the
guilt-innocence redaction ruling, he failed to present to the
trial court his argument that the redaction violated his right to
present mitigating evidence and thus did not clearly preserve any
penalty-phase objection for appeal.FN10
FN10. Ries failed to allege any ineffective
assistance of counsel claim based on trial counsel's failure to
object during the penalty phase of the trial to the redaction of
the apology portion of the confession.
Because any challenge to the trial court's
guilt-innocence ruling regarding the redacted apology portion of
the confession was of dubious merit, and because the penalty-phase
objection was not clearly preserved, we cannot conclude that the
state's rejection of Ries's ineffective assistance of appellate
counsel claim for failing to raise this issue on appeal was
objectively unreasonable.
V
For these reasons, we AFFIRM the district
court's denial of Ries's petition for a writ of habeas corpus.
