Ramirez v. Dretke

• Decision Date: 27 January 2005
• Docket Number: No. 04-70011.,04-70011.
• Citation: 398 F.3d 691
• Parties: Luis RAMIREZ, Petitioner-Appellant, v. Doug DRETKE, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

398 F.3d 691

Luis RAMIREZ, Petitioner-Appellant, v. Doug DRETKE, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 04-70011.

United States Court of Appeals, Fifth Circuit.

January 27, 2005.

Gary Allen Taylor, Austin, TX, Jack Knox Wall, Law Office of J.K. Rusty Wall, Midland, TX, for Ramirez.

Margaret L. Schmucker, Austin, TX, for Dretke.

Appeal from the United States District Court for the Northern District of Texas.

Before BARKSDALE, GARZA and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Petitioner Luis Ramirez was convicted of capital murder and sentenced to death for the murder of his ex-wife's boyfriend, Nemecio Nandin. The Texas Court of Criminal Appeals affirmed the conviction and sentence on direct appeal and denied Ramirez's subsequent petition for a writ of habeas corpus. A federal district court denied Ramirez's ensuing petition for a writ of habeas corpus and refused to issue a Certificate of Appealability ("COA"). Ramirez now requests a COA from this Court, claiming that (1) his conviction for capital murder is based upon legally insufficient evidence; (2) he was denied his right to confront a witness when the court admitted out-of-court statements by an accomplice implicating Ramirez in the murder; (3) he was denied his right to trial by jury because the district court allowed the jury to consider improper evidence during sentencing; (4) he received ineffective assistance of counsel because his trial counsel failed to locate, interview and subpoena an alibi witness; and (5) he received ineffective assistance of counsel because his trial counsel failed to object to the district court's punishment charge.

I

Nemicio Nandin was a fireman and part-time washer/dryer repairman who was dating Ramirez's ex-wife, Dawn Holquin. The record suggests that Ramirez had been jealous of Holquin's boyfriends, and Ramirez's daughter testified that Ramirez was visibly upset about his ex-wife's relationship with Nandin. Days before Nandin's murder, Ramirez was seen meeting with an associate, Edward Bell, at a house owned by Lana Riordan (the "Riordan House") where Bell and his girlfriend had previously lived. At around the same time, Bell told Timothy Hoogstra, at whose home he was then staying, that Ramirez had hired him to kill a fireman for $1,000.

Nandin was killed at the Riordan House on April 8, 1998, shot twice in the head with a shotgun and buried on the property. His truck was later discovered at a local Wal-Mart. Bell's girlfriend, Lisa McDowell, testified that she left Bell alone, without a car, at the Riordan House between 11 A.M. and noon on the day of the murder, and that Ramirez dropped Bell off at McDowell's aunt's house between 3:30 and 4 P.M. that afternoon. As McDowell drove Bell back from her aunt's house back to the Riordan House later that afternoon, she saw Bell throw two latex gloves out of the car window. Police later recovered the gloves and a set of keys fitting Nandin's truck. A subsequent search of McDowell's car revealed Bell's wallet, containing two of Ramirez's business cards and handwritten notes including directions to Holquin's house, her address, her uncle's address, and descriptions of Holquin's and her uncle's cars. Police also discovered in the car a pair of jeans and a glove spattered with Nandin's blood. Shortly after the murder, but before his arrest, Bell described the murder to Hoogstra. Bell told Hoogstra that he and Ramirez had gone to the Riordan House, called Nandin for a washer repair, handcuffed Nandin when he arrived and shot him with a shotgun, burying him on the property. Testimony indicated that Ramirez had purchased the same brand of handcuffs years earlier.

The state also introduced evidence suggesting a plausible timeline — a period of time in which Ramirez could have been with Bell at the Riordan House committing the murder. Ramirez's girlfriend, Ginger Herring, testified that on the day of the murder Ramirez had packed a bag and left his home between 12:30 and 1:00 P.M. and returned around 3:00 or 3:30 P.M. Finally, the state introduced evidence that Ramirez and Bell were seen together after the murder and that on at least one occasion Bell, who had no apparent means of support, returned from such a meeting with cash.

II

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Ramirez must obtain a COA in order to appeal the district court's denial of his habeas petition. See 28 U.S.C. § 2253(c)(1). To obtain a COA, Ramirez must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this standard, Ramirez "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). "[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail." Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). "The question is the debatability of the underlying claim, not the resolution of that debate." Id. at 342, 123 S.Ct. 1029. While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case "any doubts as to whether a COA should issue must be resolved in [the petitioner's] favor.'" Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citing Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000)).

In determining whether a COA should be granted under this standard, this Court must remain cognizant of the deferential standard of review imposed by AEDPA upon the district court in considering habeas petitions. See Miller-El, 537 U.S. at 336-37, 123 S.Ct. 1029 ("We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable among jurists of reason."). Under AEDPA, the district court may grant habeas relief only if it determines that the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or that the state court's adjudication of the claim "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)(1), (2). Further, the state court's findings of fact are entitled to a presumption of correctness and the petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III

Ramirez contends that jurists of reason would find debatable the district court's conclusion that there was sufficient evidence to find Ramirez guilty and that a rational juror could have found Ramirez guilty of capital murder.¹ Under section 2254, habeas relief "on a claim of insufficient evidence is appropriate only `if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" West v. Johnson, 92 F.3d 1385, 1393 (5th Cir.1996) (quoting Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct 2781, 61 L.Ed.2d 560 (1979)). All credibility choices and conflicting inferences are to be resolved in favor of the verdict. United States v. Cyprian, 197 F.3d 736, 740 (5th Cir.1999). "A determination of a factual issue made by a State court shall be presumed correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

Our review of the evidentiary record, summarized in Part I, supra, shows reasonable jurists could not disagree with the district court's determination that the state court was not unreasonable in holding that the evidence presented at trial was sufficient to permit a rational jury to find Ramirez guilty of capital murder.²

IV

Ramirez next argues that admission of Bell's out-of-court statements implicating Ramirez in the murder — specifically, Bell's statement to Hoogstra before the murder that Ramirez had hired him to kill a fireman and his subsequent description of the murder to Hoogstra — violated his Sixth Amendment right to confront witnesses against him. The admission of hearsay evidence against a defendant implicates the Sixth Amendment's Confrontation Clause because the defendant is not afforded an opportunity to confront the out-of-court declarant. Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). However, a hearsay statement against a defendant may be introduced if the statement bears sufficient "indicia of reliability." Id. at 66, 100 S.Ct. 2531. Indicia of reliability can be shown either by demonstrating that the statement falls within a "firmly rooted" hearsay exception or that it is supported by "particularized guarantees of trustworthiness." Idaho v. Wright, 497 U.S. 805, 815-17, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).³

Ramirez argues that Bell's non-custodial statements do not fall within a firmly rooted exception and that Bell's statements implicating Ramirez must therefore be supported by particularized guarantees of trustworthiness. The State does not dispute Ramirez's conclusion that Bell's statements do not fall within a firmly-rooted exception. Instead it argues that the statements are supported by particularized guarantees of trustworthiness.

In support of his argument that Bell's out-of-court statements to Hoogstra are not supported by particularized guarantees of trustworthiness, Ramirez relies on the Supreme Court's decision in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). In Lilly, the Supreme Court considered the admissibility of a co-defendant's custodial confession made in response to police questioning. A plurality of ...