Ex parte Ruiz

543 S.W.3d 805

EX PARTE Rolando RUIZ, Applicant

NO. WR–27,328–03 and WR–27,328–04

Court of Criminal Appeals of Texas.

FILED: November 9, 2016

Lee Kovarsky, Burke Butler, for Rolando Ruiz

ORDER

Richardson, J., filed the order of the Court in which Keller, P.J., and Meyers, Johnson, Keasler, and Newell, JJ ., joined.

Rolando Ruiz filed a post-conviction application for a writ of habeas corpus pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5, a motion to reconsider a previously filed application, and a motion to stay the execution. By order dated August 26, 2016, this Court stayed Ruiz's execution date but did not rule on his application and motions. After reviewing Ruiz's writ application, for the reasons discussed below, we dismiss this application as a subsequent writ because it fails to satisfy the requirements of Article 11.071 § 5 ; we decline to reconsider Ruiz's prior subsequent writ application; we withdraw our previously issued stay of execution; and we deny Ruiz's motion to stay the execution.

On the night of July 14, 1992, Ruiz fatally shot Theresa Rodriguez in the head. He had been hired by her husband and brother-in-law to kill her. They agreed to pay Ruiz $2,000.00—$1,000.00 as a down payment and $1,000.00 after the killing. At his 1995 trial, Ruiz admitted that he killed Theresa.¹ The jury convicted Rolando Ruiz of the offense of capital murder. As a result of the jury's answers to the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, the trial court sentenced Ruiz to death. This Court affirmed Ruiz's conviction and sentence on direct appeal.² Rolando Ruiz does not contest his guilt.³ He just doesn't want to be executed. Neither did Theresa Rodriguez.

Ruiz comes to this Court again seeking relief based on his claims that his trial counsel was ineffective during the punishment phase of trial. However, the merits of Ruiz's claims of ineffective assistance of trial counsel have been completely and thoroughly reviewed. Ruiz is not entitled to relitigate claims that have already been resolved on the merits.⁴ In order to understand the reasoning behind the Court's decision, it is necessary to recount in some detail the post-conviction procedural posture.

HABEAS BACKGROUND IN CHRONOLOGICAL ORDER

A. First State Writ (WR–27,328–02)

On September 15, 1997, Ruiz filed his first post-conviction application for writ of habeas corpus under Texas Code of Criminal Procedure, Article 11.071. Ruiz's habeas counsel did not raise ineffective assistance of trial counsel (sometimes referred to herein as "IAC") as a ground for relief. The trial court held an evidentiary hearing and issued findings of fact and conclusions of law recommending that relief be denied. By order dated April 2, 2003, this Court denied relief.⁵

B. First Federal Writ

On February 18, 2004, represented by new counsel, Ruiz filed a federal habeas corpus petition in the United States District Court for the Western District of Texas. In his federal petition, Ruiz raised claims of ineffective assistance of trial counsel⁶ and ineffective assistance of state habeas counsel. In an opinion issued on August 29, 2005, the federal district court held that Ruiz had procedurally defaulted on his claims for federal habeas relief. The federal district court held as follows:

While a showing of ineffective assistance can satisfy the "cause" prong of the "cause and actual prejudice" exception to the procedural default doctrine, deficient performance, or even gross incompetence, by [Ruiz's] state habeas counsel does not satisfy either prong of the Strickland v. Washington test for ineffective assistance because [Ruiz] possessed no constitutional right to the assistance of counsel during his state habeas corpus proceeding. Both the Supreme Court and Fifth Circuit have held that, because there is no constitutional right to the assistance of counsel in connection with a collateral attack upon an otherwise final conviction, error by counsel in an earlier state or federal habeas proceeding cannot give rise to a federal habeas claim or constitute "cause" for purposes of avoiding a procedural default.⁷

The federal district court concluded that, "[t]he inexplicable failure of [Ruiz's] state habeas counsel to raise any of these claims during [Ruiz's] state habeas corpus proceeding has effectively cut off federal habeas review of [Ruiz's] most compelling claims herein."⁸

On October 12, 2005, Ruiz filed in federal district court a request for a Certificate of Appealability, arguing that his

procedural defaults should be excused by virtue of the inherent unfairness of (1) permitting the State of Texas to designate the indigent petitioner's state trial counsel to serve as [Ruiz's] direct appeal counsel against [Ruiz's] express wishes and over [Ruiz's] objections and (2) effectively insulating that breach of fundamental fairness by permitting the State of Texas then to appoint a wholly incompetent state habeas counsel to represent [Ruiz] in the one and only forum in which [Ruiz] had an opportunity to raise ineffectiveness by his trial and appellate counsel before the state courts.⁹

While recognizing the inherent inequities of Ruiz's situation, the federal district court continued to maintain the position that Ruiz was not entitled to relief:

Unfortunately, the fundamental unfairness of [Ruiz's] state habeas corpus proceeding does not furnish a basis for federal habeas relief. Infirmities in state habeas corpus proceedings do not constitute grounds for federal habeas relief.

Furthermore, the Supreme Court and Fifth Circuit have held that because there is no constitutional right to the assistance of counsel in connection with a collateral attack upon an otherwise final conviction, error by counsel in an earlier state or federal habeas proceeding cannot give rise to a federal habeas claim or constitute "cause" for purposes of avoiding a procedural default.

The Court is not unsympathetic to [Ruiz's] plight. Quite frankly, the quality of representation [Ruiz] received during his state habeas corpus proceeding was appallingly inept. [Ruiz's] state habeas counsel made no apparent effort to investigate and present a host of potentially meritorious and readily available claims for state habeas relief. Furthermore, [Ruiz's] state habeas counsel made virtually no effort to present the state habeas court with any evidence supporting the vast majority of the claims for state habeas relief which said counsel did present to the state habeas court. More specifically, [Ruiz's] state habeas counsel not only inexplicably failed to present Dr. Munsinger's¹⁰ testimony or any of the other, additional, allegedly mitigating evidence [Ruiz] complains in this Court his trial counsel should have presented during the punishment phase of [Ruiz's] trial but [Ruiz's] state habeas counsel failed to present the state habeas court with any claim for state habeas relief alleging this glaringly obvious failure by [Ruiz's] trial counsel constituted ineffective representation. [Ruiz's] state habeas counsel did little more than (1) assert a set of boilerplate, frivolous, claims which had repeatedly been rejected by both the state and federal courts and (2) fail to support even these claims with any substantial evidence. Insofar as [Ruiz] contends his state habeas counsel merely "went through the motions" and "mailed in" a frivolous state habeas corpus application which said counsel failed to support with evidence, those complaints have merit. Wholly inept though it may have been, under the well-settled authorities ... the egregiously deficient performance of [Ruiz's] state habeas counsel does not excuse the procedural defaults arising therefrom ....¹¹

The federal district court labeled Ruiz's state habeas counsel as "wholly incompetent" and "egregiously inept,"¹² while also pointing out that Ruiz's habeas counsel "did little more at the evidentiary hearing held in [Ruiz's] state habeas corpus proceeding than furnish the Bexar County District Attorney's office with an opportunity to elaborate on why that office chose to seek [the] death penalty."¹³ Yet, the federal district court held that it was without authority to grant relief.

C. Second State Writ (WR–27,328–03)

On July 2, 2007, Ruiz filed a subsequent writ application in state court, claiming ineffective assistance of trial counsel.¹⁴ He asserted that his trial counsel performed deficiently by failing to investigate and present mitigating evidence at the punishment phase of trial. In that subsequent writ application, Ruiz also alleged that his habeas counsel appointed to file his first writ application performed deficiently by not raising ineffective assistance of trial counsel in his initial application. This Court did not address the merits of Ruiz's IAC claims, and we did not address his claim of ineffective assistance of habeas counsel. This Court issued a brief order dated July 6, 2007, dismissing Ruiz's second writ application because it did not meet the requirements of Article 11.071, Section 5.¹⁵ Only seven members of the Court participated in this ruling. Of the seven, five judges voted to dismiss and two judges (Holcomb, J. and Johnson, J.) dissented to the dismissal of the application.¹⁶ Judge Womack, who joined the Court's order dismissing Ruiz's subsequent application, filed a "statement respecting the dismissal of the application."¹⁷

D. Federal Motion To Stay His Execution

Three days later, Ruiz was back in federal district court. On July 9, 2007, Ruiz filed a motion to stay his execution. Ruiz asserted that this Court's dismissal of his second writ application constituted a ruling on the merits of his IAC claims, which would now allow him to argue this ground in federal district court. However, the federal district court disagreed, holding that, "[b]ecause the state appellate court dismissed [Ruiz's] second state habeas application on state writ-abuse principles, [Ruiz] has procedurally...