IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals

                                No. 11-70011
                                                                      Fifth Circuit

                                                                    FILED
                                                             February 21, 2017

ROLANDO RUIZ,                                                  Lyle W. Cayce
                                                                    Clerk
            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.
                                     No. 11-70011

                                            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denied relief in an unpublished opinion on April 2, 2003. 2 On February 18,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,
Wiggins 3 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 In 2007, the Texas Court of Criminal Appeals issued an unpublished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).
                                            2
                                        No. 11-70011

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. Reed 11 “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 hearing 15—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.


                                                3
                                    No. 11-70011

       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


       17Ruiz v. Stephens, 728 F.3d 416 (5th Cir. 2013).
       18Ruiz, 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.


                                          4
                                      No. 11-70011

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).


                                             5
                               No. 11-70011

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                    p.2

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     I                         IN THE COURT OF CRIMINAL APPEALS
     I                                     OF TEXAS
                                                                   'WR-27 ,328-03
     I
                                               ·EX PARTE ROLANDO RUIZ
     I                            ON APPLICATION FOR WRIT OF HABEAS CORPUS
                                       IN CAUSE NO. 92-CR-6718B FROM THE
     I                              2277 " DISTRICT COURT OF BEXAR COUNTY


     I             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.
    'I                                                               ORDER

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

    II             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
        I         review.

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


    :1            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

        I         of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Ruiz, No. WR-


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                                  COURT OF CRIMINAL APPEALS             5129362436                       p.3




 I                                                                                              RUIZ-l
11          27,328-02 (Tex. Crim. App.April2, 2003).

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

1•          consideration of subsequent claims under Article 11.071, Section 5. This application is
:I
I           dismissed as an abuse of the writ and the motion for stay of execution is denied.
I



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

            Do Not Publish
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                                 COURT OF CRIMINAL APPEALS                 5129362436                            p.4




                     ·IN THE COURT OF CRIMINAL APPEALS
                                  OF TEXAS

                                                     WR-27,328-03


                                      EX PARTE ROLANDO RUIZ, Applicant


'I                          ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                                             . FROM BEXAR COUNTY
    I
                WOMACK, J.,   filed a statement respecting the dismissal ofthe application.
    I
11
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               I join the Court's order dismissing the subsequent application.

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

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


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

I
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        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.
        .J u l· ,06 2007 3: 36Pl1       COURT OF CRIMINAL APPEALS                5129362436                                   p.5

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    I                                                                                        (Ex paste Ruiz. concummce • 2)


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


'I             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

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

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

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

               of this state.

ii             Filed July 6; 2007.

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                                    COURT OF CRIMINAL APPEALS                  5129362436                          p.6
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11                                   IN THE COURT OF CRIMINAL APPEALS
I
                                                 OF TEXAS
    I                                              NO. WR-27,328-03


I
    I
                                            EXPARTE ROLANDO RUIZ
ii                         ON APPLICATION FOR WRIT OF HABEAS CORPUS
                                 IN CAUSE NO. 92-CR-6718B FROM THE
 I                            277~ DISTRICT COURT OF BEXAR COUNTY


,I                        HOLCOMB, J.,ji/ed a statement dissenting to the dismissal of the
           application, joiiled by JOHNSON, J.


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

    .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

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


    I              1
                    Applicant's Subsequent Application for Post-Conviction Relief, at 1.
                                         -   ·· ------- -   - -   ----   -- . -- - --   -    -   -
                                   COURT OF                 ~Rl~INAL        APPEALS         5129362436                     P·?..___



    I                                                                                                      RUIZ - Page·2

    I    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
    I    means to obtain any meaniogfuJ redress                   for the significant deprivation of his Sixth Amendment
    I    rights that he has suffered during the lower court proceedings in this State.


    I·           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

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


II
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         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

 I       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


ii       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

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


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



 I              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
 I       corpus proceeding."). See also Ruiz v. Quarter.man, 460 F.3d 638, 644 (5'~ Cir. 2006) (Exhibit 2)
                                    on
         (similarly denying relief 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
 I       [likewise] ineffective.").
                3
                    539 U.S. 510 (2003). .
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                                                                                                    RUIZ- Page3

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

           FiJed: July 6, 2007
 I         Do not publish

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