Ramey v. Lumpkin

• Decision Date: 29 July 2021
• Docket Number: No. 18-70034,18-70034
• Citation: 7 F.4th 271
• Parties: Ker'sean Olajuwa RAMEY, Petitioner—Appellant, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

7 F.4th 271

Ker'sean Olajuwa RAMEY, Petitioner—Appellant,

v.Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.

No. 18-70034

United States Court of Appeals, Fifth Circuit.

FILED July 29, 2021

Ronald A. McIntire, Alisha C. Burgin, Catherine Del Prete, Perkins Coie, L.L.P., Los Angeles, CA, David R. Dow, University of Houston Law Center, Houston, TX, for Petitioner-Appellant.

Natalie Deyo Thompson, Office of the Attorney General, Office of the Solicitor General, Austin, TX, Travis Golden Bragg, Assistant Attorney General, Office of the Attorney General, Criminal Appeals Division, Austin, TX, for Respondent-Appellee.

Before Smith, Higginson, and Duncan, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

A Texas jury found Ker'sean Olajuwa Ramey guilty of capital murder and imposed the death penalty for his role in the murders of Celso Lopez, Tiffani Peacock, and Sam Roberts. Ramey challenged his conviction and sentence both on direct appeal and through state habeas proceedings, but the Texas courts denied his requests for relief. The United States District Court for the Southern District of Texas again rejected Ramey's claims for relief and his request for a certificate of appealability ("COA"). This court granted Ramey's application for a COA on two issues: (1) whether Ramey's trial was tainted by the exclusion of black jurors (the " Batson Claim"), and (2) whether trial counsel rendered unconstitutionally ineffective assistance before trial and during the guilt phase of trial by failing to conduct an adequate investigation (the " Strickland Claim"). Ramey v. Davis , 942 F.3d 241, 246 (5th Cir. 2019). For the reasons articulated herein, we AFFIRM the district court's denial of Ramey's habeas petition.

I.

A.

Other courts have detailed the facts of this case, see Ramey v. Davis , 314 F. Supp. 3d 785 (S.D. Tex. 2018) ; Ramey v. State , No. AP-75, 2009 WL 335276 (Tex. Crim. App. Feb. 11, 2009), but we repeat the critical ones here for completeness.

On August 25, 2005, the bodies of Celso Lopez, Tiffani Peacock, and Sam Roberts were found at Roberts's home. They each had been shot multiple times. The Texas Department of Public Safety Crime Unit ("DPS") collected fingerprints and other items from the scene. This physical evidence yielded no immediate suspects.

In November 2005, investigators received an anonymous tip implicating Ramey, LeJames Norman,¹ and two others in the crime. Investigators interrogated Ramey on December 12, 2005, at a Texas detention center where he was being held on unrelated charges. Ramey did not confess to the crimes and was arrested for capital murder.

At trial, the State presented testimony from numerous witnesses. The trial evidence showed that, a few days before the shooting, Ramey and others broke into the home of a neighbor, Kenneth Nairn, to steal weapons. The group stole approximately 25 guns and ammunition.

Norman testified that, soon after the Nairn burglary, he and Ramey decided to rob the home of his neighbor, Sam Roberts, because Norman believed that Roberts had at least a kilogram of cocaine at his residence. In preparation for the robbery, Norman testified that Ramey agreed to carry a short-barrel Harrington & Richardson .22 revolver, and Norman agreed to carry a long-barrel Rohm Gesellschaft .22 revolver. Both weapons originated from the Nairn burglary.

Norman testified that, on the day of the triple homicide, Norman and Ramey entered Roberts's apartment and they fatally shot Celso Lopez, Tiffani Peacock, and Sam Roberts—with Ramey shooting Roberts twice and Lopez once, and Norman shooting Lopez once, Peacock once, and Roberts three times. The pair fled back to Norman's house, which was across the street. Upon realizing they had left a police scanner at the crime scene, Ramey returned to retrieve it. According to Norman, while inside the house, Ramey shot Peacock once and shot Lopez three times. The State's ballistic expert gave testimony consistent with Norman's account, testifying that a Harrington & Richardson revolver was used to shoot Roberts twice, Lopez three times, and Peacock once, while a Rohm Gesellschaft revolver was used to shoot Roberts three times, Lopez once, and Peacock once.

The next day, Roberts's mother and father discovered their son's, Peacock's, and Lopez's bodies. Ramey and Norman watched from Norman's front porch as law enforcement investigated the crime scene. Norman testified that Ramey disposed of the weapons used in the crime by throwing them off the edge of a local dam. Ramey's former girlfriend, Stacey Johnson, testified that she drove Ramey to the dam three days after the murders and accompanied him while he disposed of two revolvers. During the drive home from the dam, Johnson testified that Ramey told her about the murders and threatened to kill her if she revealed his role in the murders to police. Four months later, Johnson led investigators to the dam and indicated to law enforcement precisely where Ramey had thrown the weapons. A dive team recovered both weapons. Other weapons from the Nairn burglary were found hidden under floorboards at Ramey's house.

Although the State presented extensive testimonial evidence, there was no physical evidence—fingerprints, DNA, blood, or hair samples—connecting Ramey to the crime scene or either of the alleged murder weapons recovered from the dam. Further, the DPS firearm examiner was unable to determine conclusively whether any of the bullets recovered from the victims and crime scene had been fired by the alleged murder weapons.

B.

On December 17, 2005, the State of Texas indicted Ramey for capital murder and burglary of a habitation. Ramey pleaded not guilty to both offenses and the case proceeded to trial.

Voir dire lasted more than a month, from October 30, 2006 to December 14, 2006. To select a jury, the parties cycled through two venire panels totaling 184 people. The first venire panel contained seven black venire members. However, none of these venire members was selected as jurors: the State challenged five for cause, and two were excused because of their biological relationship to Ramey. After one month of voir dire and after exhausting one venire panel, the parties had selected eleven jurors and needed three more. The eleven jurors included ten white people and one Hispanic person.

A second venire panel consisting of 49 venire members was called on December 4, 2006. When the venire panel was first seated, four of the first ten venire members would have been black. However, the State requested a jury shuffle before the venire members began answering any questions. Defense counsel requested a race-neutral reason for the State's shuffle, and the State explained that "the overwhelming majority of the folks that ... would be good State's jurors were towards the back of the panel." Defense counsel did not pursue the objection further. After the shuffle, there were two black venire members among the first dozen to be questioned.

The first black venire member to be questioned was Cheryl Steadham-Scott. During voir dire, Steadham-Scott expressed what might be described as confusion, ambivalence, or reservation concerning the death penalty. Steadham-Scott was also asked a variety of race-specific questions, including her perception of the guilt or innocence of numerous famous black people. The State ultimately used a peremptory strike to remove her—the subject of Ramey's Batson Claim. At the time of the strike, no objection was registered. Ramey's trial counsel did object to the State's peremptory strike of Steadham-Scott the following court day, which was three weeks after the strike was exercised, but before the jury was sworn.² When challenged, the prosecutor's proffered reason for striking Steadham-Scott was that "her questionnaire clearly indicated that she could not impose the death penalty." In the end, there were no black people on Ramey's jury.

On January 16, 2017, after a four-day trial, the jury found Ramey guilty of capital murder after deliberating for just over an hour. Following the sentencing phase of the trial, and after deliberating for about 15 minutes, the jury answered Texas's special issue questions in a manner requiring imposition of the death penalty.

C.

Ramey, through the same counsel who represented him at trial, appealed directly to the Texas Court of Criminal Appeals ("TCCA"). In that appeal, the TCCA rejected Ramey's Batson claim with respect to the jury shuffle because the State provided a race-neutral reason for the shuffle. Ramey , 2009 WL 335276, at *1–3. The court also rejected Ramey's Batson claim with respect to Steadham-Scott because it credited the State's race-neutral reason for striking her. Id. at *3 ("[T]he record supports the trial court's ruling that the State struck Steadham-Scott because of her inconclusive opinions on the death penalty and not her identity as an African–American."). On direct appeal, Ramey did not claim ineffective assistance of counsel. The TCCA rejected Ramey's remaining claims on direct appeal and affirmed Ramey's conviction and sentence. Id. Ramey's petition for a writ of certiorari to the U.S. Supreme Court was denied. Ramey v. Texas , 558 U.S. 836, 130 S.Ct. 81, 175 L.Ed.2d 56 (2009).

Through separate, appointed counsel, Ramey also filed a state application for a writ of habeas corpus. The same judge who presided over Ramey's trial sat as a habeas reviewer and made habeas recommendations to the TCCA. In his habeas application, Ramey raised twenty-two claims, including that the jury selection process violated Batson (claims 13 and 14) and that trial counsel was constitutionally ineffective during voir dire and during the punishment phase (claims 15 and 16).³ The judge entered an order recommending that the TCCA deny habeas relief. With respect to Ramey's Batson claim, the judge concluded that the State's use of the jury shuffle and peremptory strike of Steadham-Scott were not...