Ramey v. Davis (314 F. Supp. 3d 785, 2018)

Kenneth M. Hoyt, United States District Judge

Ker'sean Olajuwa Ramey, a Texas inmate incarcerated under a capital conviction and death sentence, filed a federal petition for a writ of habeas corpus on November 13, 2013. (Dkt. No. 7). Ramey alleges that constitutional error infected his trial with unfairness. Having considered Ramey's claims, the state court record, the pleadings, the evidence, and the applicable law, the Court now finds that Ramey is not entitled to federal habeas relief for the reasons provided herein.

FACTUAL AND PROCEDURAL BACKGROUND

On December 17, 2005, the State of Texas indicted Ramey for the offense of capital murder in the 24th Judicial District Court of Jackson County Texas. The four-count indictment charged Ramey for his role in the murders of Sam Roberts, Tiffany Peacock, and Celso Lopez. After a change of venue, Ramey stood trial in Victoria County, Texas.

The State based its case against Ramey on testimony from those to whom he admitted involvement in the murders, as well as his co-defendant LeJames Norman's account of the crime. On direct appeal, the Texas Court of Criminal Appeals summarized the trial testimony:

The bodies of Celso Lopez, Tiffany Peacock, and Sam Roberts were found in Roberts's residence by his parents on August 25, 2005. Lopez had been shot four times: once in the cheek and three times in the back of the head. Peacock was shot twice in the head. Roberts was shot five times: once in the chest, once in the neck, and three times in the back of the head. They had been killed on or about August 24.

Stacy Johnson, [Ramey's] former girlfriend, testified that he called her at 12:29 a.m. and 12:59 a.m. on August 25. He went to her house after their conversation, and slept there until shortly before 6 a.m. She said that he seemed "distant."

Two days later, Johnson accompanied [Ramey] to his house where he dug up "something" from his backyard. Johnson drove him to a dam. While Johnson was driving, [Ramey] called his former step-father, Lonny Lyte. (Both Johnson and Lyte testified about this conversation.) [Ramey] asked Lyte, "If you was to kill somebody, what would you do with the guns?" Lyte responded by saying that he would throw them in the river.

When they reached the dam, Johnson saw [Ramey] throw two pistols into the water. She later returned to the dam with the police and pointed out to the dive team the place where she remembered him throwing the pistols. They were found in the approximate location she indicated.

After he threw the pistols in the water, [Ramey] admitted to Johnson that he had committed a murder. He first said, "You know what this is about," to which she responded in the affirmative. When they returned to her house, he admitted to everything in detail, and he threatened to kill her if she told anyone.

A firearms examiner from the Department of Public Safety testified that markings on the bullets that were recovered from the victims' bodies were consistent with the bullets having been fired from the pistols that were recovered from the water at the dam.

The pistols had been stolen from [the Nairn family] residence on August 19, 2005. The owner of the pistols identified them, and one of the pistols was further identified by records of registration. Gerald Manzanalez and Christopher Times testified that, on August 19, they and [Ramey] had broken into a residence where they stole the pistols and some other firearms.

LeJames Norman testified that, on August 24, he and [Ramey] had gone to the scene of the murders, Sam Roberts's residence. Their objective was to steal 100 kilograms of cocaine they believed to be inside.

He said that he and [Ramey] prepared by stealing masks from a discount store. The jury saw the store's surveillance videotape which showed them stealing the masks at 9:22 p.m. on August 24.

Norman testified that they also prepared by wrapping tape around their shoes so as not to leave a trail. They donned their masks and cocked their guns before entering the house. They knocked on the door. Celso Lopez answered, and the two men forced their way inside. Norman held a gun on Lopez, while [Ramey] ran to the rear of the home, where he hoped to find the cocaine. As [Ramey] searched for the drugs, Norman accidentally shot Lopez in the cheek. [Ramey] quickly returned to the front room and forced Lopez, bleeding and begging for help, to move to a bedroom and lie on the floor.

At that point Roberts came home, accompanied by Peacock (his girlfriend). When she saw what was happening, Peacock panicked and tried to run away. Norman grabbed her and forced her to her knees inside the house, near the front door. As she was bending down, he shot her in the back of the head. Seeing his girlfriend fall limp to the floor, Roberts attacked Norman. The two men "tussled" in the kitchen until [Ramey] shot Roberts, freeing Norman who immediately shot Roberts several more times while he lay on the floor. [Ramey] then returned to the bedroom and shot Lopez in the back of the head as he lay on the floor.

[Ramey] and Norman left the house. As they walked away, Norman realized that he had left his police scanner inside the house. [Ramey] quickly returned to retrieve the scanner. While inside, he shot the victims several more times to ensure that they were dead.

[Ramey] and Norman did not find any cocaine.

Eight other witnesses testified that [Ramey] had admitted to them that he had participated in the murders.

Ramey v. State , 2009 WL 335276, at *3-5 (Tex. Crim. App. 2009).

The defense rested without calling any guilt/innocence witnesses or presenting any evidence. The jury instructions authorized Ramey's conviction: (1) for "caus[ing] the death of Sam Roberts and/or Tiffan[y] Peacock and/or Celso Lopez by shooting them with a firearm" in the course of a robbery or burglary or (2) for assisting Norman in the murders under Texas' law of parties. Clerk's Record at 172-73. The jury found Ramey guilty of capital murder. The verdict form specified that the jury found Ramey guilty as the principal actor in the crime. Clerk's Record at 175.

A Texas jury decides a capital defendant's sentence by answering special-issue questions. In this case, the special issues asked: (1) will the defendant be a future danger to society; and (2) do sufficient circumstances mitigate against a death sentence? See TEX. CRIM. CODE art. 37.071 § 2(b); Clerk's Record at 193-94. The State based its punishment-phase case on Ramey's escalating violent actions. The State presented testimony and evidence that, when Ramey stood trial at age twenty-one, he had already amassed a significant criminal history. Ramey began acting out in school at a young age. His first interaction with the legal system occurred when at age sixteen he coerced a seven-year-old boy into performing oral sex on him. Originally charged with aggravated sexual assault, the charge was reduced to assault and the court sentenced him to juvenile probation for one year.

At age seventeen, Ramey pleaded guilty to criminal mischief for breaking into a vending machine at his high school. Less than six months later, Ramey and another friend, broke into his alternative learning school and ransacked the principal's office. His probation for the two offenses was eventually revoked for failing to pay fees, perform his community service hours, and report to his probation officer. Ramey's subsequent stay in the county jail did not squelch his lawlessness.

Jurors found out that Ramey had actually burglarized the Nairn residence three times. The State also presented evidence that, after burglarizing a different location, Ramey attempted to run over the homeowner with his car. Witnesses testified that Ramey had planned other burglaries. Additionally, Ramey told friends that he had carried out various crimes for which he was never charged. Importantly, Ramey bragged that he had committed other murders.

Ramey's behavior did not improve while incarcerated before trial. He armed himself with weapons, created disturbances, and threatened guards.

The State's final witness was Dr. Richard Coons, a psychologist. Dr. Coons did not examine Ramey, but his review of relevant records led him to opine that an offender like Ramey would "commit criminal acts of violence in the future which would constitute a continuing threat to society." Tr. Vol. 38 at 81.

The defense only called two witnesses in the penalty phase. Ramey's mother, Ms. Terral Stevens, provided an overview of Ramey's life. Ms. Stevens told jurors of Ramey's early emotional and mental problems, including a diagnosis of dyslexia and ADHD at age four. Early evaluations revealed emotional disturbances and a lack of social skills. Ramey told evaluators that his step-father had abused him. Ramey's mother, however, failed to seek the necessary help for her son's problems.

Dr. Mark Kunick, a psychiatrist, based his testimony on an interview with Ramey and Ramey's mother, his review of records, and his understanding of the facts of the case. Dr. Kunick opined that Ramey's nonviolence since incarceration, his close-knit family, and his lack of mental illness would make it unlikely that Ramey would be a future danger.

The jury answered Texas' special issues in a manner requiring the imposition of a death sentence.

Trial counsel represented Ramey on direct appeal. On February 11, 2009, the Texas Court of Criminal Appeals affirmed Ramey's conviction and sentence in an unpublished opinion. Ramey v. State , No. AP-75, 2009 WL 335276 (Tex. Crim. App. 2009).

During the pendency of his state appeal, Ramey filed a state application for a writ of habeas corpus. The same judge who presided over Ramey's trial adjudicated his state habeas application. After the submission of proposed factual findings and legal conclusions, the trial-level court entered an order recommending that the Texas Court of Criminal Appeals deny habeas relief. State Habeas Record at 145-61. The Court of Criminal Appeals filed Ramey's case and set it for submission. Ex parte Ramey , No. AP-76, 2011 WL 1288284, at *1 (Tex. Crim. App. 2011). After additional briefing by the parties, the Court of Criminal Appeals entered an order denying relief on November 7, 2012. Ex parte Ramey , 382 S.W.3d 396, 398 (Tex. Crim. App. 2012). The Court of Criminal Appeals issued a mandate on December 4, 2012.

On November 14, 2013, Ramey filed a skeletal federal petition for a writ of habeas corpus raising five claims. Ramey, however, did not provide any extensive legal or factual discussion of the issues raised by his petition. Instead, Ramey provided the following brief list of claims:

1. The State violated Ramey's constitutional rights by failing to disclose favorable evidence.

2. Ramey is innocent of capital murder.

3. Trial counsel provided ineffective representation in the guilt/innocence phase of trial.

4. Trial counsel provided ineffective representation in the penalty phase of trial.

(Dkt. No. 7). Ramey also informed the Court that he "incorporates into his claims for relief the claims filed in his direct appeal brief and in his state habeas application...." (Dkt. No. 7 at 4, n.1).

Ramey's attorneys believed that they had filed their petition outside the Anti-Terrorism and Effective Death Penalty Act's ("AEDPA") limitations period. The Court appointed new counsel to represent Ramey throughout federal review. (Dkt. No. 11). Ramey amended his habeas petition on December 15, 2015. Ramey's amended petition raised eleven claims:

1. The State violated Ramey's right to equal protection by systematically excluding jurors based on their race.

2. Trial counsel provided ineffective representation during jury selection.

3. Ramey was denied a trial by an impartial jury when a juror was excluded for expressing reservations about the death penalty.

4. The State violated Ramey's rights by knowingly presenting false testimony.

5. The State deliberately elicited information from Ramey in violation of Massiah v. United States , 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

6. Trial counsel provided ineffective assistance during pre-trial investigation and in the guilt phase.

7. Trial counsel provided ineffective representation in the penalty phase.

8. The cumulative effect of counsel's errors violated Ramey's constitutional rights.

9. The admission of unreliable testimony by an expert witness violated Ramey's rights.

10. Appellate counsel was constitutionally inadequate.

11. Ineffective assistance of trial, appellate, and state habeas counsel forgive the default of any procedurally deficient claims.

Respondent moves for summary judgment. (Dkt. No. 40). Respondent argues that (1) Ramey's skeletal petition was not timely; (2) any new claims in his amended petition are also not timely; (3) Ramey presents several claims in a procedurally inadequate manner; and (4) all claims lack merit. Ramey has filed a reply. (Dkt. No. 49). This matter is ripe for adjudication. Before turning to Ramey's habeas claims, the Court must determine whether he filed his initial petition in a timely manner.

TIMELINESS OF RAMEY'S PETITION AND ISSUES AVAILABLE FOR FEDERAL REVIEW

All federal habeas corpus petitions filed after April 24, 1996, are subject to a one-year limitations period. The Court must first decide whether Ramey filed his skeletal petition in a timely manner. The Court will then decide whether any claims first raised in Ramey's amended petition are timely.

I. Timeliness of the Skeletal Petition

The AEDPA "enacted a one-year period of limitation for federal habeas proceedings that runs, unless tolled, from the date on which the petitioner's conviction became final at the conclusion of direct review...." Cantu-Tzin v. Johnson , 162 F.3d 295, 298 (5th Cir. 1998). Ramey's conviction became final when the Supreme Court denied his petition for certiorari from direct appeal on October 5, 2009.

A "pending" application for state post-conviction relief tolls the one-year limitations period. 28 U.S.C. § 2244(d)(2). State post-conviction habeas proceedings in capital cases run concurrently to the direct appeal. See TEX. CODE CRIM. PRO. art. 11.071, § 4(a). Ramey filed a state habeas application during the pendency of direct appeal. The Texas Court of Criminal Appeals set his case for submission and eventually denied state habeas relief on November 7, 2012.

The Court of Criminal Appeals does not issue a mandate in every habeas case. A mandate only issues in cases where the matter is "set for submission" by the Court of Criminal Appeals. The Court of Criminal Appeals issued the mandate on December 4, 2012.

In the standard state habeas case, no mandate issues and a decision by the Texas Court of Criminal Appeal ends state habeas review. See Ott v. Johnson , 192 F.3d 510, 513 (5th Cir. 1999) (stating that a habeas "application becomes final after a decision by the state's high court"). The specific question before the Court is whether, in a capital case set for submission, the Court of Criminal Appeals decision or its mandate is a final judgment that ends state review. The answer turns on whether the habeas action is "pending" under section 2244(d)(2) between the issuance of the appellate court's decision and its mandate. Because Ramey filed his initial federal petition on November 14, 2013, his pleading was timely only if state habeas review was tolled until the mandate issued.

The federal courts have not rendered a one-size-fits-all standard for when a state habeas case is no longer "pending," but rather look to the "state post-conviction procedures to determine...when state review ended...." Watts v. Brewer , 416 F. App'x 425, 428 (5th Cir. 2011) (quotation omitted); see also Carey v. Saffold , 536 U.S. 214, 219, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (refusing to establish a "uniform national rule" governing when a habeas case is pending). The Supreme Court has loosely said that a case is pending until "the state courts have finally resolved an application for state postconviction relief" which generally is when, "[a]fter the State's highest court has issued its mandate or denied review, no other state avenues for relief remain open." Lawrence v. Florida , 549 U.S. 327, 332, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) ; see also Saffold , 536 U.S. at 220, 122 S.Ct. 2134. The Supreme Court has instructed to look at "[w]hen the state courts have issued a final judgment on a state application" to decide if "it is no longer pending." Lawrence , 549 U.S. at 334, 127 S.Ct. 1079 (emphasis added).

The Fifth Circuit has not yet decided when a Texas habeas case stops "pending" after being set for submission. Respondent argues that, without exception, a state habeas action concludes and tolling ends when the Court of Criminal Appeals issues its decision denying relief. Respondent cites cases for the proposition that "[t]he Fifth Circuit has plainly stated that a Texas habeas 'application becomes final after a decision by the state's high court.' "

(Dkt. No. 54 at 3 (quoting Ott , 192 F.3d at 513 ). While true as far as it goes, the Fifth Circuit's language is limited because the federal courts in those cases did not face the unique issue before this Court-no mandate had issued because the state courts did not set the cited cases for submission.

Respondent also argues that "the mandate in Texas habeas procedure serves no real function affecting the state or federal habeas process." (Dkt. No. 54 at 7). Respondent argues that the federal courts should not consider that state habeas review remains pending "for what is simply a ministerial act: issuing the mandate." (Dkt. No. 54 at 3). The Court of Criminal Appeals has refused to characterize the mandate as merely "ministerial." Ex parte Webb , 270 S.W.3d 108, 111 (Tex. Crim. App. 2008). Instead, Texas treats a mandate as "an appellate court's official notice, directed to the court below, advising it of the appellate court's decision and directing it to have the appellate court's judgment duly recognized, obeyed, and executed." Id. at 9 n.2. The Texas courts do not intend the mandate to be a mere formality, but an indication that "the judgment was final." Hartfield v. Thaler , 403 S.W.3d 234, 239 (Tex. Crim. App. 2013) ; see also Brown v. Thaler , 455 F. App'x 401, 406 (5th Cir. 2011) (stating that "Texas law is unambiguous" that collateral review is final when the mandate issues).

The Texas legislature has structured capital habeas procedure in a manner that presupposes that the mandate is the point of final resolution for cases set for submission. For example, the convicting court may usually set an execution date when "the court of criminal appeals denies relief." TEX CODE CRIM. PRO. art. 43.141(a)(1). If the case is "filed and set for submission," however, statutory law prohibits the lower court from setting an execution date until "the court of criminal appeals issues a mandate." TEX CODE CRIM. PRO. art. 43.141(a)(2). Similarly, the mandate serves as the defining point at which jurisdiction can transfer from the state to the federal courts. The Texas statutes recognize that, in a case set for submission, inmates should not avail themselves of federal jurisdiction until the mandate issues. See TEX. CODE CRIM. PRO. art. 11.071(2)(e).

Both of those statutes cited above presuppose that Texas considers a case pending until the mandate has issued. In fact, the Court of Criminal Appeals itself has said in a different context that "[a] cause is pending until mandate is issued from this Court." Cuellar v. State , 521 S.W.2d 277, 280 (Tex. Crim. App. 1975) (direct appeal); see also Stevenson v. State , 499 S.W.3d 842, 849 (Tex. Crim. App. 2016) ("[A] conviction with a pending appeal is not final until the appellate court affirms the conviction and issues its mandate.").

With that understanding of state law, the Court holds that, in a capital habeas case set for submission, a case is pending for the purposes of section 2244(2) until the Texas Court of Criminal Appeals issues an mandate. The Court emphasizes that this holding is limited to capital habeas cases set for submission and does not apply to traditional habeas actions.

Here, the Court of Criminal Appeals set Ramey's case for submission and, after rendering a decision, issued a mandate on December 4, 2012. Ramey filed his skeletal petition within a year afterward. Ramey's skeletal habeas petition was timely.

II. Timely Claims in Amended Petition

Even though Ramey's initial petition was timely, he raised new claims in his amended petition. Respondent argues that only claims four, six, and seven were included in the skeletal petition. Respondent says that the Court cannot reach the remaining claims in Ramey's amended petition because they do not "relate back" to his initial arguments.

Under Rule 15(c)(1)(B), Federal Rules of Civil Procedure, an amended pleading relates back to the date of the original pleading when "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading." The Supreme Court has construed this provision narrowly when applied to federal habeas corpus cases. Only those claims in an amended petition filed after the AEDPA deadline that are tied to "a common core of operative facts" will relate back to the original petition and will be considered timely filed. Mayle v. Felix , 545 U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). Habeas claims do not relate back "when [they] assert[ ] a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Id. at 650, 125 S.Ct. 2562.

As previously noted, Respondent concedes that claims four, six, and seven relate back to the skeletal petition. The remaining claims fall into two categories. First, the amended petition contains several claims that Ramey did not raise in state court or in his skeletal petition. Specifically, Ramey did not exhaust portions of claim two and all of claims five, eight, ten, and eleven in state court. Those claims do not share a common core of operative facts with the skeletal petition. Ramey did not file them in a timely manner.

Second, Ramey's amended petition contains some claims that he exhausted in state court (part of claim two and claims one, three, and nine). Ramey's initial petition mentioned in a footnote that he intended to "incorporate[ ]into his claims for relief the claims filed in his direct appeal brief and in his state habeas application...." (Dkt. No. 7 at 4, n.1). The most generous reading of Ramey's petition allows for federal review of those claims.

Claims one, two, three, four, six, seven, and nine are timely.

III. Equitable Tolling of Claims That Do Not Relate Back

Claims five, eight, ten, and eleven do not relate back to his initial petition. The Court can only reach the merits of those claims if Ramey can show equitable tolling forgives a strict application of the AEDPA limitations period. "Equitable tolling is permissible only in 'rare and exceptional circumstances.' " United States v. Wynn , 292 F.3d 226, 230 (5th Cir. 2002) (quoting Davis v. Johnson , 158 F.3d 806, 811 (5th Cir. 1998) ). "To obtain the benefit of equitable tolling, [an inmate] must establish that (1) he pursued habeas relief with 'reasonable diligence', and (2) some 'extraordinary circumstances' stood in his way and 'prevented' timely filing." Palacios v. Stephens , 723 F.3d 600, 604 (5th Cir. 2013) (quoting Manning v. Epps , 688 F.3d 177, 183 (5th Cir. 2012) ); see also Holland v. Florida , 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ). Both criteria must be satisfied, and a petitioner seeking application of the doctrine bears the burden of showing that it should apply to him. See Lawrence , 549 U.S. at 336, 127 S.Ct. 1079.

Ramey argues that his initial federal attorneys' representation should allow equitable tolling of the limitations period. "[P]rofessional misconduct" by an attorney may constitute an extraordinary circumstance warranting equitable tolling if the misconduct is not a "garden variety claim of excusable neglect," but rather is such that it is "egregious behavior" equivalent to abandonment. See Holland , 560 U.S. at 649-53, 130 S.Ct. 2549 ; see also Maples v. Thomas , 565 U.S. 266, 283, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012).

The Court has reviewed Ramey's extensive evidence and argument about the representation of his initial set of federal habeas attorneys. To summarize, the federal attorneys originally concluded that a federal petition was due on November 7, 2013. As that date neared, Ramey claims that they abandoned him. The evidence, however, shows that they became confused and assumed that the AEDPA deadline would include any time from which Ramey could have sought Supreme Court review of his state habeas action. See Lawrence , 549 U.S. at 332, 127 S.Ct. 1079 (holding that the time to file a certiorari petition from state habeas review does not toll the limitations period). When the attorneys realized their mistake, they acted quickly and a skeletal petition was filed. The initial attorneys also moved to withdraw. The skeletal petition that was filed, however, did not include all the claims Ramey's new attorneys later put in the amended petition.

Despite Ramey's arguments, he has not shown that his federal attorneys left him effectively without counsel. They incorrectly assessed the filing date. Simply miscalculating a deadline is not grounds for equitable tolling. See Maples , 565 U.S. at 282, 132 S.Ct. 912 ; Holland , 560 U.S. at 651-52, 130 S.Ct. 2549 ; Lawrence , 549 U.S. at 336, 127 S.Ct. 1079. The record otherwise shows that the initial attorneys made efforts to meet with their client, research the record, and develop a federal petition consistent on a timeline based on their miscalculation. At best, this is a case of garden variety negligence or error, not abandonment.

Importantly, Ramey's arguments do not explain why anything but negligence accounts for the fact that his attorneys did not include his new claims in the skeletal petition. The omission of those claims is not "egregious" or "extraordinary" conduct that would equitably toll the limitations period. Holland , 560 U.S. at 649-50, 130 S.Ct. 2549. After considering all of Ramey's argument and evidence, the Court finds that he has not shown a basis for equitable tolling. Claims five, eight, ten, and eleven are time barred.

STANDARD OF REVIEW

The writ of habeas corpus provides an important, but narrow, examination of an inmate's conviction and sentence. See Harrington v. Richter , 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ; Barefoot v. Estelle , 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). How an inmate litigates his claims determines the course of federal habeas adjudication. The exhaustion doctrine precludes federal consideration of any claim raised for the first time in federal court. See 28 U.S.C. § 2254(b)(1). As a corollary to exhaustion, the procedural-bar doctrine requires inmates to litigate their claims in compliance with state procedural law. See Dretke v. Haley , 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) ; Lambrix v. Singletary , 520 U.S. 518, 523, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) ; Coleman v. Thompson , 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A federal court may review an inmate's unexhausted or procedurally barred claims only if he shows: (1) cause and actual prejudice; or (2) that "a constitutional violation has 'probably resulted' in the conviction of one who is 'actually innocent[.]' " Haley , 541 U.S. at 393, 124 S.Ct. 1847 (quoting Murray v. Carrier , 477 U.S. 478, 496, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986) ).

If the inmate has presented his federal constitutional claims to the state courts in a procedurally proper manner, and the state courts have adjudicated their merits, AEDPA provides for a deferential federal review. Under AEDPA's rigorous requirements, an inmate may only secure relief after showing that the state court's rejection of his claim was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or 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).

Inmates arguing legal error in state court decisions must comply with § 2254(d)(1)'s "contrary to" and "unreasonable application" clauses. See Bell v. Cone , 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A petitioner does not merit relief by merely showing legal error in the state court's decision. See White v. Woodall , 572 U.S. 415, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (stating being "merely wrong" or in "clear error" will not suffice for federal relief under AEDPA). "[F]ocus[ing] on what a state court knew and did," Cullen v. Pinholster , 563 U.S. 170, 182, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), AEDPA requires inmates to " 'show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.' " Woodall , 134 S.Ct. at 1702 (quoting Richter , 562 U.S. at 103, 131 S.Ct. 770 ); Berghuis v. Thompkins , 560 U.S. 370, 380, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) ; Williams v. Taylor , 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "If this standard is difficult to meet, that is because it was meant to be." Richter , 562 U.S. at 102, 131 S.Ct. 770.

A petitioner challenging the factual basis for a state decision must show that it was an "unreasonable determination of the facts in light of the evidence...." 28 U.S.C. § 2254(d)(2) ; see also Miller-El v. Cockrell , 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ( Miller-El I ). "[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen , 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010).

Federal courts presume the underlying factual determinations of the state court to be correct, unless the inmate "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). The Court of Criminal Appeals summarily denied habeas relief on all but one claim. In evaluating Ramey's claims under AEDPA, the federal courts will "look through" the "summary denial of [Ramey's state habeas application] and evaluate the state trial court's reasoned decision." Brumfield v. Cain , --- U.S. ----, 135 S.Ct. 2269, 2276, 192 L.Ed.2d 356 (2015) (citing Ylst v. Nunnemaker , 501 U.S. 797, 806, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) ). As the same judge presided over the trial proceedings and the state habeas action in this case, the presumption of correctness for state habeas factual findings is especially strong. See Mays v. Stephens , 757 F.3d 211, 214 (5th Cir. 2014) ; Woods v. Thaler , 399 F. App'x. 884, 891 (5th Cir. 2010) ; Clark v. Johnson , 202 F.3d 760, 764 (5th Cir. 2000).

An inmate's compliance with 28 U.S.C. § 2254(d) does not guarantee habeas relief. See Horn v. Banks , 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (observing that no Supreme Court case "ha[s] suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard[.]"); Robertson v. Cain , 324 F.3d 297, 306 (5th Cir. 2003) (finding that 28 U.S.C. § 2254(d)"does not require federal habeas courts to grant relief reflexively"). A habeas petitioner meeting his AEDPA burden must still comply with weighty jurisprudential tenets, as the non-retroactivity principle of Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) that prevents habeas courts from creating new constitutional law.

ANALYSIS

I. The State Violated Ramey's Right to Equal Protection by Systematically Excluding Jurors Based on Their Race. (Claim One)

Ramey's first claim alleges that the prosecutor systematically excluded African-Americans from serving on his jury. The jury selection process in this case involved the questioning of individual jurors from two jury panels. The 135-member initial venire dire contained seven African-American individuals. Five of those potential jurors were dismissed for cause, and two were excused because they were distant relatives of Ramey. The parties did not select any African-American jurors from the first panel. When the trial court called a second panel, eight jurors were already seated. Of the forty-nine member second panel, six were African-American.

When members of the second panel assembled in the courtroom, four African-American potential jurors sat toward the front of the courtroom. The prosecutor requested a jury shuffle, which left only two African-American prospective jurors among those who would eventually be questioned before the jury was selected. After the jury shuffle, African-American veniremember Cheryl Steadham-Scott was the second juror questioned. The State removed Ms. Steadham-Scott by peremptory strike. The next juror questioned was also African-American but she was dismissed for cause.

No African-American jurors served at trial. Ramey contends that the State systematically excluded jurors based on their race in violation of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Under Batson , the prosecution violates the equal protection clause by striking potential jurors based on race. Batson jurisprudence has established a three-step burden shifting scheme to ascertain the State's intent when striking members of a protected category:

First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

Rice v. Collins , 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (quotations and citations omitted); see also Johnson v. California , 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) ; Miller-El v. Dretke , 545 U.S. 231, 251-52, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) ( Miller-El II ).

While Ramey contends that racism permeated jury selection, he only points to one African-American prospective juror, Ms. Steadham-Scott, against whom the State used a peremptory strike. Ramey challenged her strike in the appellate and habeas proceedings. On appeal, Ramey claimed that the trial court did not properly engage in the Batson procedure and that the prosecution shuffled the jury for racial purposes. Ramey's habeas application faulted the State for not coming forward with a sufficient race-neutral explanation for striking Ms. Steadham-Scott.

Ramey raises a robust Batson claim in federal court. Ramey contends that he can show purposeful discrimination in the State's exercise of peremptory strikes. Relying primarily on inferences, Ramey (1) disputes the State's reason for striking Ms. Steadham-Scott; (2) argues that the prosecution used a jury shuffle to lessen the chance of receiving an African-American juror; (3) points to a purported history of discrimination in Jackson County criminal trials; and (4) asserts that the State questioned the African-American jurors differently. Ramey, however, only gave the state courts an opportunity to consider the first two arguments.

A. The Questioning of Ms. Steadham-Scott

The prosecution used a peremptory strike against one black potential juror, Ms. Steadham-Scott. After extensive questioning, the prosecution concluded by asking her whether she could, as required by the future-dangerousness special issue, impose a death sentence when "the only evidence was that it would be slightly more likely than not" that "he will be dangerous in the future." Tr. Vol. 29 at 77-78. Ms. Steadham-Scott said that she would "need much more of a burden." Tr. Vol. 29 at 78. The State then passed her.

Trial counsel began the defense's question by "go[ing] over this last issue" with her. Tr. Vol. 29 at 78. At that point, the prosecutor interrupted and said that he "was not going to challenge [Ms. Steadham-Scott] for cause." Tr. Vol. 29 at 78.

Trial counsel then passed her without asking any additional questions. Tr. Vol. 29 at 79.

The prosecutor subsequently exercised a peremptory challenge against Ms. Steadham-Scott without explanation. Tr. Vol. 29 at 79. The defense did not raise a Batson objection then, but asked for the trial court to include her questionnaire in the record. The trial court excused her.

Three weeks later, and after the jury had been selected but not yet sworn in, trial counsel told the court:

just for a housekeeping matter, when we were doing the voir dire on the jury and the supplemental panel, juror number two, which is Cheryl Steadham-Scott, was peremptorily struck by the prosecution and we were just wanting to note that the prosecution did not give any race neutral explanations for that....

Tr. Vol. 30 at 9. The prosecutor then said:

it was my understanding that if I would have continued to pursue the line of questioning, that juror would most likely been challengeable for cause, but I didn't do it because her questionnaire clearly indicated that she could not impose the death penalty and there were many other racially neutral reasons and, if the Court wants, I can try to go back and resurrect those notes.

Tr. Vol. 30 at 10. In short, the prosecution provided two race-neutral reasons: (1) continuing the last line of questioning would have shown her to be challengeable for cause and (2) she was not strong on the death penalty. The trial court said that it "was comfortable with the record reflecting what it did with respect to that juror" and the defense did not make any further objection. Tr. Vol. 30 at 10.

Because the prosecutor explained the peremptory strike of Ms. Steadham-Scott by providing reasons that were not inherently discriminatory, the state courts found that this process sufficiently complied with required Batson procedure. Ramey now argues that the prosecutor's explanation was a pretext for purposeful discrimination.

This Court's review "turns on factual determinations, and, in the absence of exceptional circumstances, [courts] defer to state court factual findings unless we conclude that they are clearly erroneous." Snyder , 552 U.S. at 477, 128 S.Ct. 1203 (quotation omitted). Ramey assumes that, because of racial bias, the prosecutor framed his questioning in a way to disqualify Steadham-Scott from service. The state courts, however, found that Ms. Steadham-Scott "was repeatedly unable to answer the State's questions regarding her ability to adjudge the death penalty, both in her jury questionnaire and during voir dire":

When asked whether she understood the death penalty or whether she would change it, she replied, "Yea. I don't know how I would change it, but-I don't know how I would change it." When asked if she believed in the death penalty, she responded, "I mean, you're asking me stuff like do I believe in the death penalty. I don't know if I believe in it, you know." On the jury questionnaire, she left blank the question, "Have you ever been opposed to the death penalty?" and responded in another section on the questionnaire that she was "not opposed or...in favor of it."

Ramey , 2009 WL 335276, at *3.

The state habeas court also found that "Steadham-Scott's standing on the death penalty was very questionable and the peremptory challenge by the State was based upon her inconclusive opinions on the death penalty and not upon her do identity as an African-American." State Habeas Record at 152. On that basis, the state habeas court found that "the use of the State's peremptory challenge was not based on racial motivations." State Habeas Record at 152. In fact, the state habeas court commented that there was a "complete failure to show that there was any basis for a claim that the challenge was racially motivated." State Habeas Record at 152.

This is not a case where jury selection involved a definitive pattern of the prosecution striking black jurors. Of the nine African-Americans identified on the jury panels, six were dismissed for cause and two because they were relatives of Ramey. The record does not demonstrate a stark disparity in the percentage of blacks peremptorily struck as opposed to whites. The prosecutor provided race-neutral reasons for striking Ms. Steadham-Smith.

On their face, the State's reasons for dismissing Ms. Steadham-Smith are race neutral. See Hernandez v. New York , 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). First, questioning immediately before the peremptory strike raised serious concerns about Ms. Steadham-Smith's ability to impose the correct burden on the future-dangerousness issue. See Muniz v. State , 851 S.W.2d 238, 250 (Tex. Crim. App. 1993) (requiring the State only to prove that the defendant "would, more likely than not, commit violent criminal acts in the future"). Second, some of Ms. Steadham-Scott's answers supported the prosecutor's belief that "she could not impose the death penalty": she did not know if she believed in the death penalty, she was ambivalent toward capital punishment, and was neither opposed to or in favor of it. Tr. Vol. 29 at 64-66. She also did not answer questions such as whether she had previously been opposed to the death penalty. Tr. Vol. 29 at 66. While elsewhere she said that she would "have to be fair and open" about reaching a decision, Tr. Vol. 29 at 65, the record reasonably supports the prosecution's belief that she would not be favorable to considering a death sentence.

Even though the record does not strongly question the State's motives here, courts may consider relevant facts and circumstantial evidence to assess possible discriminatory intent. Ramey relies on other inferences to prove that the State engaged in purposeful discrimination: the use of a jury shuffle, an alleged history of discrimination in Jackson County, and disparate questioning.

B. The Jury Shuffle

Ramey argues that the State's use of the jury shuffle shows that it intended to keep African-Americans off the jury. A jury shuffle may suggest discrimination. See Snyder v. Louisiana , 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ; Miller-El II , 545 U.S. at 254-55, 125 S.Ct. 2317. Ramey argues that the State used a jury shuffle on the second panel because "most of the African American veniremembers were seated towards the front of the panel." (Dkt. No. 30 at 52).

Ramey argued to the state courts that the jury shuffle itself amounted to a Batson violation. Trial counsel asked for a race-neutral explanation when the prosecutor requested a jury shuffle. While Ramey did not make a classic Batson challenge, the trial court nonetheless required the prosecution to explain why it had asked for a jury shuffle. The prosecutor told the court:

I have individuals here in Victoria who have assisted me in going through the list and given me information about the prospective jurors....I have gotten that information from a number of different individuals. And in doing that I looked at this list and the overwhelming majority of the folks that they had suggested would be good State's jurors were towards the back of the panel. And so in light of that I requested a shuffle....I will tell the Court as an officer of the Court that those individuals, probably 75-80 percent of the ones they had told me would be good State's jurors were towards the back. And so that's why I asked for a shuffle.

Tr. Vol. 21 at 20. The defense did not make any other argument, and the trial court recessed without making an express ruling.

The Court of Criminal Appeals found that the trial counsel "implicitly denied [Ramey] relief" on his jury selection complaint which means that it believed that "[t]he explanation proffered by the State" was "sufficiently race-neutral." Ramey , 2009 WL 335276, at *2. Ramey has not shown clear and convincing evidence to rebut the state court's finding that the State did not use the jury shuffle for racial reasons. See Young v. Dretke , 356 F.3d 616, 629 (5th Cir. 2004) ("As a federal habeas court, we are bound by the state habeas court's factual findings, both implicit and explicit.").

C. History of Exclusion and Comparative Juror Analysis

For the first time in federal court, Ramey also asks the Court to consider other factors to show that the State exercised its peremptory strike against Ms. Steadham-Scott on the basis of race. Ramey particularly emphasizes historical discrimination in Jackson County and disparate questioning of African-American potential jurors by the prosecutor. Ramey's failure to raise these issues previously deprived the state courts from the opportunity to consider his arguments.

In arguing that prosecutors in Jackson county have historically excluded African-American jurors, Ramey relies heavily on Hernandez v. State , 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), a case in which the Supreme Court found that had been a systematic exclusion from jury service in Jackson County. Ramey also says "[u]pon information and belief, the racial discrimination present in this case is not an isolated incident and [the District Attorney] has employed similar discriminatory tactics throughout his tenure...." (Dkt. No. 30 at 57). Ramey, however, has not provided any evidence of a systematic racism in jury selection by the prosecutor's office in recent years. Ramey's reliance on case from more than sixty years ago and his bare supposition about current racism cannot overcome the deference paid to state court adjudications.

Without any other basis to support his Batson claim, Ramey tries to show "a comparative analysis of the jurors-that is, 'side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve." United States v. Minor , 698 F. App'x 765, 768 (5th Cir. 2017) (quoting Miller-El v. Dretke , 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (" Miller-El II " ) ). If the government's explanation "for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson 's third step." Miller-El II , 545 U.S. at 241, 125 S.Ct. 2317.

Ramey has not identified any jurors from his trial who, like Ms. Steadham-Smith, displayed difficulty with imposing the burden for the future-dangerousness issue. Instead, Ramey's argument tries to show that the prosecution treated African-American jurors differently during questioning about the death penalty. In particular, Ramey points to two white jurors, Marjorie Jean and Carol Laza, who were selected to serve despite leaving some answers blank on their questionnaire and expressing that they did not understand the death penalty. (Dkt. No. 30 at 44-45). Despite some similarities in how they answered the jury questionnaire, questioning of both Jurors Jean and Laza confirmed that they would be able to return a death sentence. Tr. Vol. 29 at 90-120; Tr. 29 at 150-58. Even after questioning, Ms. Steadham-Smith could not say that she believed in capital punishment. Tr. Vol. 29 at 64-66. Ramey has not identified jurors who gave such ambivalent responses during questioning. Although he attempts to point out discrepancies in the State's questioning, his arguments about disparate questioning are not compelling. Ramey has simply not shown that the prosecutor's proffered reason for striking Ms. Steadham-Smith "applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, [thus]...tending to prove purposeful discrimination." Miller-El II , 545 U.S. at 241, 125 S.Ct. 2317.

D. Conclusion of the Batson Claim

This Court's role is "to determine whether the trial court's determination of the prosecutor's neutrality with respect to race was objectively unreasonable and has been rebutted by clear and convincing evidence to the contrary." Miller-El I , 537 U.S. at 341, 123 S.Ct. 1029. State court review centered on the integrity of the prosecutor's reason for striking Ms. Steadham-Scott, and to a lesser extent whether the jury shuffle showed racism. With the record and argument in state court, significant and binding state factual findings found no impropriety in the prosecutor's peremptory removal of jurors, and particularly the peremptory strike against Ms. Steadham-Scott.

Ramey's more extensive briefing on federal review does not make a stronger case of purposeful discrimination by the State. Taken as a whole, Ramey has not made a persuasive argument that the State struck Ms. Steadham-Scott, or otherwise treated potential jurors differently, because of race. Ramey has not provided clear and convincing evidence that the state court factfindings were incorrect, 28 U.S.C. § 2254(e)(1), nor shown that its decision was unreasonable, 28 U.S.C. § 2254(d)(2). See Davis v. Ayala , --- U.S. ----, 135 S.Ct. 2187, 2199, 192 L.Ed.2d 323 (2015) (emphasizing AEDPA's impact on Batson claims).

II. Trial Counsel Provided Ineffective Representation During Jury Selection. (Claim Two)

In his second claim, Ramey argues that trial counsel provided deficient representation during jury selection in four ways. First, Ramey claims that trial counsel did not ask potential jurors the right questions. Second, Ramey argues that his attorneys should not have agreed to dismiss many venire members without questioning. Third, Ramey claims that trial counsel ineffectively questioned one specific potential juror. Finally, Ramey argued that trial counsel did not object when the State misstated the law. Respondent argues that Ramey did not exhaust the third argument in state court.

A. Strickland Standard

Courts evaluate an attorney's efforts under the standard from Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland , a criminal defendant's Sixth Amendment rights are "denied when a defense attorney's performance falls below an objective standard of reasonableness and thereby prejudices the defense." Yarborough v. Gentry , 540 U.S. 1, 3, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (emphasis added); see also Rompilla v. Beard , 545 U.S. 374, 387, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) ; Wiggins v. Smith , 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

A court's review "of counsel's performance must be highly deferential," and made without "the distorting effects of hindsight." Id. at 689, 104 S.Ct. 2052. Courts assess counsel's "challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct[,]" because otherwise "[i]t is all too tempting for a defendant to second-guess counsel's assistance...." Id. The law honors an attorney's "conscious and informed decision on trial tactics and strategy," allowing for federal relief only when "it is so ill chosen that it permeates the entire trial with obvious unfairness." Cotton v. Cockrell , 343 F.3d 746, 752-53 (5th Cir. 2003). The prejudice element requires the movant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

The state courts rejected many of Ramey's Strickland claims. While "[s]urmounting Strickland 's high bar is never an easy task," a habeas petitioner's duty to "[e]stablish[ ] that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Padilla v. Kentucky , 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). "The standards created by Strickland and § 2254(d) are both highly deferential,...and when the two apply in tandem, review is doubly so." Richter , 562 U.S. at 105, 131 S.Ct. 770 (citation omitted); see also Knowles v. Mirzayance , 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009).

B. Questioning about Bias

Ramey argues that trial counsel "(1) failed to ask life-qualifying questions and assert cause challenges for jurors who demonstrated obvious bias and inability to follow the law, and (2) failed to rehabilitate and agreed to excuse jurors who expressed a reservation to the death penalty, without any voir dire." (Dkt. No. 30 at 66). Despite making general allegations about deficiencies during voir dire, Ramey only provides briefing on the questioning of four jurors (Craig Ullmann, Jose Loredo, Sharon Reynolds, and Nancy Wind).

Respondent contends that much of Ramey's second claim involves "nitpicking" of trial counsel's questioning. (Dkt. No. 40 at 121). Ramey challenged trial counsel's voir dire questioning on state habeas review. The state habeas court found that his arguments "are simply based upon tactics expressed with generality and with no specific allegation of specific conduct which constituted ineffective assistance of counsel. In regard to these claims the court finds that the record simply does not support [Ramey's] allegations of ineffective assistance of counsel." State Habeas Record at 155.

While "[v]oir dire plays a critical function in assuring the criminal defendant that his constitutional right to an impartial jury will be honored," Morgan v. Illinois , 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (quotation omitted), "no hard-and-fast formula dictates the necessary depth or breadth of voir dire." Skilling v. United States , 561 U.S. 358, 362, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). Not every attorney will conduct voir dire in the same manner. The mere fact that another attorney might have asked different questions will not support a finding of ineffective assistance. See Garza v. Stephens , 738 F.3d 669, 676 (5th Cir. 2013) ("Moreover, Garza cites no authority, and we have found none, that would require a defense attorney to ask specific questions at voir dire."). Indeed, a defense attorney's method of voir dire is strategic, and thus it "cannot be the basis for a claim of ineffective assistance of counsel unless counsel's tactics are shown to be so ill chosen that it permeates the entire trial with obvious unfairness." Teague v. Scott , 60 F.3d 1167, 1172 (5th Cir. 1995) (quotation omitted). Further, a petitioner "alleging deficient performance during jury selection must identify any particular juror who was in fact prejudiced and must establish that had counsel's questioning focused on a specific area of bias, the bias would have been found." Villanueva v. Stephens , 555 F. App'x 300, 306 (5th Cir. 2014). This Court's review will center on whether additional questioning by counsel would have made the four jurors subject to removal by cause.

1. Ullman

Ramey argues that two jurors (Ullman and Loredo) were biased because they would "automatically impose" a death sentence. (Dkt. No. 30 at 67). The prosecution engaged Ullman in wide-ranging questioning. When the prosecutor passed Ullman, trial counsel only asked for clarification on his jury questionnaire response that he was "in favor in [sic] capital punishment except in a few cases where it may not be appropriate." Tr. Vol. 9 at 213. Ullman said: "I would say that that would play towards the circumstances involved around the case. How could I be more specific? Cases where the person may have been legally insane or not mentally capable of knowing what they were doing." Tr. Vol. 9 at 213. Afterwards, trial counsel told the trial court that "after consultation with the client,...the Defense accepts this juror." Tr. Vol. 9 at 214.

Ramey faults trial counsel for not asking Ullman more questions. Ramey, however, does not acknowledge the State's earlier questioning that explored Ullman's opinions and ability to serve as a juror in a capital case. Ullman said that he would consider all of the evidence before deciding whether a death sentence was appropriate. Tr. Vol. 9 at 183. His answers showed that he understood the presumption of innocence and reasonable-doubt standard. Tr. Vol. 9 at 191-95 Nothing in Ullman's questioning by the State would give rise to a challenge for cause.

2. Loredo

Trial counsel engaged Juror Loredo in much longer questioning. A full review of the defense questioning, however, shows that he was not necessarily an unfavorable juror. Pursuant to trial counsel's questions, Loredo said he was "conservative" on some issues and "liberal on some issues" such as being "pro choice." Tr. Vol. 17 at 68. Loredo explained that he had a friend accused of a killing and the thought of being a witness in that case made him worry that he could not deal with being the one whose testimony "is what actually sends him to prison." Tr. Vol. 17 at 71. Loredo told trial counsel that, on a scale of one to ten with one being against capital punishment and ten being positively in favor of it, he was a "seven." Tr. Vol. 17 at 76.

Ramey emphasizes an answer in which Loredo said he would "favor" the death penalty. Tr. Vol. 17 at 80. Even when Loredo said he "favored" the death penalty, he clarified that he only meant that he "believed in it" and his opinion on the death penalty would not affect his ability to consider the evidence. Tr. Vol. 17 at 80. Loredo, in fact, expressed a willingness to impose a life sentence "if a single mitigating factor were presented to [him]." Tr. Vol. 17 at 81. Given the exhaustive questioning by the defense, Ramey's emphasis on one answer misrepresents trial counsel's efforts and mischaracterizes the juror's ability to be impartial.

3. Reynolds

Similarly, Ramey picks out some elements from Juror Reynolds' questioning that he says made her biased toward law enforcement. For instance, Juror Reynolds said that her favorite television program was "Law & Order" and that she worked as a 911 dispatcher. Juror Reynold's discussion about her favorite television program did not reveal any pro-prosecution bias. Tr. Vol. 13 at 103. Trial counsel's questioning, also, revealed that her experiences through her employment would help her "be a fair juror to both sides, you know, to listen to all that is said and see that everything that's being said." Tr. Vol. 13 at 100-01.

Ramey somewhat misconstrues Ms. Reynolds' answers to questions about the death penalty. For instance, he criticizes trial counsel for not striking for her "pro death penalty ideation" based on a statement that "inmates are on death row for too long," but does not quote her actual statement which reflected compassion for the inmates: "it's, I would think, a very hard place to be, never knowing...how long you're going to be there or...if you're going to make it to your actual execution date...for being in the system. You hear of...people not actually making it to the execution date, you know. You live with that stuff every day." Tr. Vol. 13 at 99. Ms. Reynolds signaled compassion that a reasonable attorney could see as helping the defense. Ms. Reynolds' jury questionnaire showed that she was "right in the middle" and ab