Ramey v. Lumpkin ( 2021 )

Case: 18-70034 Document: 00515957398 Page: 1 Date Filed: 07/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 29, 2021
No. 18-70034 Lyle W. Cayce
Clerk
Ker’sean Olajuwa Ramey,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:13-CV-43
Before Smith, Higginson, and Duncan, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
A Texas jury found Ker’sean Olajuwa Ramey guilty of capital murder
and imposed the death penalty for his role in the murders of Celso Lopez,
Tiffani Peacock, and Sam Roberts. Ramey challenged his conviction and
sentence both on direct appeal and through state habeas proceedings, but the
Texas courts denied his requests for relief. The United States District Court
for the Southern District of Texas again rejected Ramey’s claims for relief
and his request for a certificate of appealability (“COA”). This court granted
Ramey’s application for a COA on two issues: (1) whether Ramey’s trial was
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tainted by the exclusion of black jurors (the “Batson Claim”), and
(2) whether trial counsel rendered unconstitutionally ineffective assistance
before trial and during the guilt phase of trial by failing to conduct an adequate
investigation (the “Strickland Claim”). Ramey v. Davis, 942 F.3d 241, 246
(5th Cir. 2019). For the reasons articulated herein, we AFFIRM the district
court’s denial of Ramey’s habeas petition.
I.
A.
Other courts have detailed the facts of this case, see Ramey v. Davis,
314 F. Supp. 3d 785 (S.D. Tex. 2018); Ramey v. State, No. AP-75,678, 2009
WL 335276 (Tex. Crim. App. Feb. 11, 2009), but we repeat the critical ones
here for completeness.
On August 25, 2005, the bodies of Celso Lopez, Tiffani Peacock, and
Sam Roberts were found at Roberts’s home. They each had been shot
multiple times. The Texas Department of Public Safety Crime Unit
(“DPS”) collected fingerprints and other items from the scene. This
physical evidence yielded no immediate suspects.
In November 2005, investigators received an anonymous tip
implicating Ramey, LeJames Norman, 1 and two others in the crime.
Investigators interrogated Ramey on December 12, 2005, at a Texas
detention center where he was being held on unrelated charges. Ramey did
not confess to the crimes and was arrested for capital murder.
1
Norman pleaded guilty for his role in the triple murder, and a jury sentenced him
to death. Norman v. Stephens, 817 F.3d 226, 228 (5th Cir. 2016), cert. denied, 137 S. Ct. 1201(2017).
2
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At trial, the State presented testimony from numerous witnesses. The
trial evidence showed that, a few days before the shooting, Ramey and others
broke into the home of a neighbor, Kenneth Nairn, to steal weapons. The
group stole approximately 25 guns and ammunition.
Norman testified that, soon after the Nairn burglary, he and Ramey
decided to rob the home of his neighbor, Sam Roberts, because Norman
believed that Roberts had at least a kilogram of cocaine at his residence. In
preparation for the robbery, Norman testified that Ramey agreed to carry a
short-barrel Harrington & Richardson .22 revolver, and Norman agreed to
carry a long-barrel Rohm Gesellschaft .22 revolver. Both weapons originated
from the Nairn burglary.
Norman testified that, on the day of the triple homicide, Norman and
Ramey entered Roberts’s apartment and they fatally shot Celso Lopez,
Tiffani Peacock, and Sam Roberts—with Ramey shooting Roberts twice and
Lopez once, and Norman shooting Lopez once, Peacock once, and Roberts
three times. The pair fled back to Norman’s house, which was across the
street. Upon realizing they had left a police scanner at the crime scene,
Ramey returned to retrieve it. According to Norman, while inside the house,
Ramey shot Peacock once and shot Lopez three times. The State’s ballistic
expert gave testimony consistent with Norman’s account, testifying that a
Harrington & Richardson revolver was used to shoot Roberts twice, Lopez
three times, and Peacock once, while a Rohm Gesellschaft revolver was used
to shoot Roberts three times, Lopez once, and Peacock once.
The next day, Roberts’s mother and father discovered their son’s,
Peacock’s, and Lopez’s bodies. Ramey and Norman watched from
Norman’s front porch as law enforcement investigated the crime scene.
Norman testified that Ramey disposed of the weapons used in the crime by
throwing them off the edge of a local dam. Ramey’s former girlfriend, Stacey
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Johnson, testified that she drove Ramey to the dam three days after the
murders and accompanied him while he disposed of two revolvers. During
the drive home from the dam, Johnson testified that Ramey told her about
the murders and threatened to kill her if she revealed his role in the murders
to police. Four months later, Johnson led investigators to the dam and
indicated to law enforcement precisely where Ramey had thrown the
weapons. A dive team recovered both weapons. Other weapons from the
Nairn burglary were found hidden under floorboards at Ramey’s house.
Although the State presented extensive testimonial evidence, there
was no physical evidence—fingerprints, DNA, blood, or hair samples—
connecting Ramey to the crime scene or either of the alleged murder weapons
recovered from the dam. Further, the DPS firearm examiner was unable to
determine conclusively whether any of the bullets recovered from the victims
and crime scene had been fired by the alleged murder weapons.
B.
On December 17, 2005, the State of Texas indicted Ramey for capital
murder and burglary of a habitation. Ramey pleaded not guilty to both
offenses and the case proceeded to trial.
Voir dire lasted more than a month, from October 30, 2006 to
December 14, 2006. To select a jury, the parties cycled through two venire
panels totaling 184 people. The first venire panel contained seven black
venire members. However, none of these venire members was selected as
jurors: the State challenged five for cause, and two were excused because of
their biological relationship to Ramey. After one month of voir dire and after
exhausting one venire panel, the parties had selected eleven jurors and
needed three more. The eleven jurors included ten white people and one
Hispanic person.
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A second venire panel consisting of 49 venire members was called on
December 4, 2006. When the venire panel was first seated, four of the first
ten venire members would have been black. However, the State requested a
jury shuffle before the venire members began answering any questions.
Defense counsel requested a race-neutral reason for the State’s shuffle, and
the State explained that “the overwhelming majority of the folks that . . .
would be good State’s jurors were towards the back of the panel.” Defense
counsel did not pursue the objection further. After the shuffle, there were
two black venire members among the first dozen to be questioned.
The first black venire member to be questioned was Cheryl Steadham-
Scott. During voir dire, Steadham-Scott expressed what might be described
as confusion, ambivalence, or reservation concerning the death penalty.
Steadham-Scott was also asked a variety of race-specific questions, including
her perception of the guilt or innocence of numerous famous black people.
The State ultimately used a peremptory strike to remove her—the subject of
Ramey’s Batson Claim. At the time of the strike, no objection was registered.
Ramey’s trial counsel did object to the State’s peremptory strike of
Steadham-Scott the following court day, which was three weeks after the
strike was exercised, but before the jury was sworn. 2 When challenged, the
prosecutor’s proffered reason for striking Steadham-Scott was that “her
questionnaire clearly indicated that she could not impose the death penalty.”
In the end, there were no black people on Ramey’s jury.
On January 16, 2017, after a four-day trial, the jury found Ramey guilty
of capital murder after deliberating for just over an hour. Following the
sentencing phase of the trial, and after deliberating for about 15 minutes, the
2
The Christmas and New Year holidays intervened.
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jury answered Texas’s special issue questions in a manner requiring
imposition of the death penalty.
C.
Ramey, through the same counsel who represented him at trial,
appealed directly to the Texas Court of Criminal Appeals (“TCCA”). In
that appeal, the TCCA rejected Ramey’s Batson claim with respect to the
jury shuffle because the State provided a race-neutral reason for the shuffle.
Ramey, 2009 WL 335276, at *1–3. The court also rejected Ramey’s Batson
claim with respect to Steadham-Scott because it credited the State’s race-
neutral reason for striking her. Id. at *3 (“[T]he record supports the trial
court’s ruling that the State struck Steadham-Scott because of her
inconclusive opinions on the death penalty and not her identity as an African–
American.”). On direct appeal, Ramey did not claim ineffective assistance
of counsel. The TCCA rejected Ramey’s remaining claims on direct appeal
and affirmed Ramey’s conviction and sentence. Id. Ramey’s petition for a
writ of certiorari to the U.S. Supreme Court was denied. Ramey v. Texas, 558
U.S. 836 (2009).
Through separate, appointed counsel, Ramey also filed a state
application for a writ of habeas corpus. The same judge who presided over
Ramey’s trial sat as a habeas reviewer and made habeas recommendations to
the TCCA. In his habeas application, Ramey raised twenty-two claims,
including that the jury selection process violated Batson (claims 13 and 14)
and that trial counsel was constitutionally ineffective during voir dire and
during the punishment phase (claims 15 and 16). 3 The judge entered an order
3
At the state habeas stage, Ramey did not raise the Strickland Claim that he now
raises, which is that trial counsel was constitutionally ineffective before trial and during the
guilt phase by failing to conduct an adequate investigation.
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recommending that the TCCA deny habeas relief. With respect to Ramey’s
Batson claim, the judge concluded that the State’s use of the jury shuffle and
peremptory strike of Steadham-Scott were not racially motivated and, in the
alternative, that the Batson claim had been “waived” because Ramey
“fail[ed] to object” immediately. The TCCA denied Ramey’s request for
habeas relief. Ex parte Ramey, 382 S.W.3d 396, 398 (Tex. Crim. App. 2012).
Ramey subsequently filed a federal petition for a writ of habeas corpus
that listed five claims and “incorporate[d] into his claims for relief the claims
filed in his direct appeal brief and in his state habeas application.” After his
initial federal habeas counsel withdrew and new federal habeas counsel was
appointed, Ramey amended his filing, raising six additional claims. The
district court denied relief and denied a COA in a lengthy opinion. Ramey,
314 F. Supp. 3d at 831–32.
With respect to Ramey’s Batson Claim, the district court found that
the State’s use of its peremptory strike on Steadham-Scott was the result of
“serious concerns about [her] ability to impose the correct burden on the
future-dangerousness issue” for imposing the death penalty, not her
“identity as an African-American.” Id. at 804–07. With respect to Ramey’s
guilt-phase Strickland Claim, the district court held the claim was
procedurally defaulted because Ramey did not raise it in state habeas
proceedings. Id. at 822–23. The district court also concluded that Ramey’s
state habeas counsel’s failure to (or decision not to) raise the claim did not
satisfy the cause-and-prejudice standard. Id. The district court opined that
the underlying claim was weak. Id. at 823–25 & n.24. Accordingly, the
district court entered final judgment dismissing Ramey’s claims with
prejudice. Ramey then filed a post-judgment Rule 59(e) motion, which the
district denied. Ramey timely applied to this court for a COA on three issues,
and this court granted Ramey’s application as to two issues: (1) whether
Ramey’s trial was tainted by the exclusion of black jurors (the “Batson
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Claim”); (2) whether trial counsel rendered unconstitutionally ineffective
assistance before trial and during the guilt phase of trial by failing to conduct
an adequate investigation (the “Strickland Claim”). Ramey, 942 F.3d at 246.
II.
We first consider Ramey’s Batson Claim. He argues that an
unconstitutional and discriminatory jury selection process tainted his trial.
He contends that the State’s peremptory strike of Cheryl Steadham-Scott
was a violation of the Equal Protection Clause. See U.S. Const. amend.
XIV, § 1.
A.
Ramey’s Batson Claim is subject to the deferential standard set out in
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
because it was adjudicated by Texas courts on the merits. 28 U.S.C.
§ 2254(d). Under that standard, also known as the relitigation bar, we may
grant habeas relief only if the Texas courts’ adjudication of Ramey’s Batson
Claim “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law . . . ; or (2)
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.” Id.;
Dale v. Quarterman, 553 F.3d 876, 879 (5th Cir. 2008).
A state court’s decision is contrary to clearly established precedent if
it “contradicts the governing law set forth in [the Supreme Court’s] cases”
or if the state court confronts facts that are materially indistinguishable from
a decision of the Supreme Court yet reaches a different result. Wooten v.
Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (alteration in original) (quoting
Wallace v. Quarterman, 516 F.3d 351, 354 (5th Cir. 2008)). If fair-minded
jurists could disagree about whether the state court’s decision was correct,
deference under AEDPA precludes federal habeas relief. § 2254(d)(1); see
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also Harrington v. Richter, 562 U.S. 86, 101 (2011). In a habeas appeal, this
court reviews legal conclusions de novo and factual findings for clear error.
Perez v. Cain, 529 F.3d 588, 593 (5th Cir. 2008). This court presumes the
state court’s factual findings are correct unless rebutted with clear and
convincing evidence. Wooten, 598 F.3d at 218.
B.
Before addressing the merits of Ramey’s Batson Claim, we first reject
Texas’s procedural default, abandonment, and waiver arguments.
Texas first argues that Ramey’s Batson Claim is procedurally
defaulted because he failed to contemporaneously object to the State’s strike
of Steadham-Scott before the state trial court judge. This argument fails
because Ramey’s Batson challenge was timely under Texas law. In Texas, a
Batson challenge must be raised “before the court has impanelled the jury.”
Tex. Code Crim. Proc. art. 35.261(a). In Texas, “[a] jury is considered
impaneled when the members of the jury have been both selected and
sworn.” Heard v. State, 887 S.W.2d 94, 99 (Tex. App. 1994). Thus, in
Texas, “[b]y objecting before the jury [i]s sworn, [a defendant] timely raise[s]
the Batson issue.” Brown v. State, 56 S.W.3d 915, 918 (Tex. App. 2001); Hill
v. State, 827 S.W.2d 860, 862–65 (Tex. Crim. App. 1992). The record
indisputably reflects that Ramey raised his Batson objection before the jury
was sworn in. Ramey complied with Texas’s procedural rule for registering
a timely Batson objection and, thus, there is no procedural default.
Next, Texas argues in a footnote that Ramey abandoned his Batson
Claim immediately after making his objection. Texas notes that, after the
prosecutor provided purportedly race-neutral reasons for striking Steadham-
Scott, the trial court stated, “I’m comfortable with the record reflecting what
it did with respect to that juror at this time.” Ramey’s counsel responded,
“Yes, sir, yes, sir,” and when the trial court judge asked if Ramey’s counsel
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had “[a]nything else,” Ramey’s counsel responded, “No, sir.” Texas
argues that this constituted an abandonment of Ramey’s Batson Claim
because Ramey’s counsel made no effort to show that the prosecutor’s
proffered reasons for striking Steadham-Scott were pretextual. Texas did not
argue before the district court—or any other court—that Ramey’s Batson
Claim was abandoned at the trial court. Further, the state habeas court did
not rely on this reasoning to reject Ramey’s Batson Claim. We decline to find
abandonment.
Finally, Texas argues that Ramey has forfeited any argument that his
Batson Claim can surmount AEDPA’s relitigation bar. Texas contends that
Ramey’s briefing completely disregards the relitigation bar and “reads like a
normal appeal on direct review.” We reject this argument because, as Texas
acknowledges elsewhere, Ramey’s briefing explicitly recognizes that his
Batson Claim must surmount the relitigation bar. As Ramey notes, portions
of his appellate briefing do read as if his arguments are being made on direct
review because, if this court determines that he has surmounted the
relitigation bar, this court will review his Batson Claim de novo. Johnson v.
Williams, 568 U.S. 289, 303 (2013); Panetti v. Quarterman, 551 U.S. 930, 953
(2007).
C.
“The Constitution forbids striking even a single prospective juror for
a discriminatory purpose.” Flowers v. Mississippi, 139 S. Ct. 2228, 2244
(2019). Claims challenging the use of race-based peremptory strikes require
the application of Batson’s three-step test. A defendant must first make a
prima facie case that race motivated the challenged strikes. Batson v.
Kentucky, 476 U.S. 79, 96–97 (1986). If the defendant carries this burden, the
prosecutor must provide race-neutral reasons for the challenged strikes. Id.
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at 97–98. Finally, at step three, the court considers whether the defendant
has carried his burden of proving purposeful discrimination. Id. at 98.
Under AEDPA, we may grant habeas relief, as relevant, only if the
state habeas court’s adjudication of Ramey’s Batson Claim “‘resulted in a
decision that . . . involved an unreasonable application’ of the relevant law.”
Panetti, 551 U.S. at 953 (alteration in original) (quoting § 2254(d)(1)). “A
state court’s decision constitutes an unreasonable application of clearly
established federal law if it is ‘objectively unreasonable.’” Gray v. Epps, 616
F.3d 436, 439 (5th Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 409
(2000)). “The court may grant relief under the ‘unreasonable application’
clause if the state court correctly identifies the governing legal principle from
our decisions but unreasonably applies it to the facts of the particular case.”
Bell v. Cone, 535 U.S. 685, 694 (2002).
Ramey presents two primary arguments about why the state habeas
court’s adjudication clears AEDPA’s relitigation bar.
First, Ramey argues that the state habeas court unreasonably applied
clearly established federal law by considering justifications for the
peremptory strike of Steadham-Scott that were never articulated at the trial
court. Ramey notes that while the prosecutor’s proffered reason for striking
Steadham-Scott was because “her questionnaire clearly indicated that she
could not impose the death penalty,” the state habeas court concluded
Steadham-Scott was struck because of her “inconclusive opinions on the
death penalty.” A reviewing court is not allowed to supply its own
justifications for the striking of a particular juror when the prosecutor did not
articulate that justification before the trial court. Miller-El v. Dretke, 545 U.S.
231, 252 (2005) (“Miller-El II”); Chamberlin v. Fisher, 885 F.3d 832, 841 (5th
Cir. 2018) (en banc). But here, the state habeas court characterized the
prosecutor’s stated reason for striking Steadham-Scott only slightly
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differently from the prosecutor’s verbatim stated reason; it did not alter the
basic reason the prosecutor gave for striking Steadham-Scott. This is not an
unreasonable application of federal law, and this argument is insufficient to
surmount AEDPA’s relitigation bar.
Second, Ramey argues that the state habeas court unreasonably
applied federal law because it failed to account for all relevant facts and
circumstances when assessing whether the State’s strike of Steadham-Scott
was pretextual. Specifically, Ramey points to one juror who he contends
expressed ambivalence or uncertainty about imposing the death penalty in
her juror questionnaire similar to that expressed by Steadham-Scott—Carol
Laza, a white juror.
At Batson’s third step, courts are generally required to consider the
State’s race-neutral explanations “in light of all of the relevant facts and
circumstances.” Flowers, 139 S. Ct. at 2243. The Supreme Court has
identified circumstances that may bear on a Batson challenge: (1) a “side-by-
side” comparison of a black venire member who was struck and a white
venire member who was seated; (2) the ultimate racial composition of the
jury; (3) statistical significance of peremptorily stricken venire members;
(4) disparate questioning of black venire members; and (5) the State’s use of
a jury shuffle. Miller-El II, 545 U.S. at 241–53. The last state court to
consider Ramey’s claim did not undertake this analysis. Indeed, the record
reflects that no state court has ever considered the full panoply of facts and
circumstances when analyzing Ramey’s Batson Claim.
But that does not render the state habeas court’s decision contrary to
clearly established federal law or an unreasonable application of it. This is
because Ramey did not direct the state courts to what he now asserts are
relevant facts and circumstances. Ramey cannot identify clearly established
federal law requiring state courts sua sponte to find and resolve all facts and
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circumstances that may bear on whether a peremptory strike was pretextual
and racially motivated when those facts and circumstances were not
identified and urged by the strike’s challenger.
Although the Supreme Court in Miller-El II conducted a comparative
juror analysis for the first time on appeal, 545 U.S. at 241 nn.1 & 2, and the
Court did the same in Flowers, albeit in a case beyond the strictures of
AEDPA, 139 S. Ct. at 2249–50, it is not clearly established that habeas courts
must, of their own accord, uncover and resolve all facts and circumstances
that may bear on whether a peremptory strike was racially motivated when
the strike’s challenger has not identified those facts and circumstances.
Indeed, in Chamberlin v. Fisher, this court sitting en banc held that “Miller-
El II did not clearly establish any requirement that a state court conduct a
comparative juror analysis at all, let alone sua sponte.” 885 F.3d at 838. “This
is especially true where, as here, the defendant never sought a comparative
juror analysis.” Id. at 839. Chamberlin reversed the district court for
embracing the rule that a state habeas court’s “decision not to conduct a
comparative juror analysis [sua sponte] violated . . . ‘clearly established law.’”
Id. at 838.
As noted, Ramey did not direct the state habeas court to specific
portions of the record suggesting evidence of pretext and racial bias.
Ramey’s state habeas claims did broadly note that the “facts and
circumstances” surrounding a peremptory challenge can “suggest[] that the
exclusion was racially motivated.” Ramey also focused the state habeas
court’s attention on the State’s jury shuffle by including it as a separate claim
in his state habeas petition. But Ramey did not specifically assert the facts
and circumstances that would bear on whether the peremptory strike of
Steadham-Scott was racially motivated. Further, this court has observed
that, for the relevant time period, “no case law indicated that Batson applied
to an allegedly discriminatory jury shuffle,” and the TCCA has “refused to
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extend Batson to jury shuffles.” Blanton v. Quarterman, 543 F.3d 230, 241–
242 (5th Cir. 2008). Because Ramey cannot identify clearly established
federal law requiring state courts sua sponte to find and consider all facts and
circumstances that may bear on whether a peremptory strike was racially
motivated when those facts and circumstances were not identified by the
strike’s challenger, this argument is insufficient to surmount AEDPA’s
relitigation bar, and we are unable to grant relief on Ramey’s Batson Claim.
III.
We next consider Ramey’s Strickland Claim. In his federal habeas
application, Ramey argued for the first time that his Trial Counsel 4 was
constitutionally ineffective during pre-trial investigation and during the guilt-
innocence phase of the trial. Specifically, Ramey alleges that his Trial
Counsel engaged in no independent pre-trial investigation, which Ramey
argues would have yielded impeachment material of the State’s witnesses.
A.
Ramey did not present his Strickland Claim in state court. Nor can he
now—the TCCA would apply its abuse-of-the-writ doctrine to prohibit
Ramey from raising his unexhausted Strickland Claim in a successive state
habeas application, an adequate and independent state ground. See Coleman
v. Thompson, 501 U.S. 722, 735 n.1 (1991), abrogated in part on other grounds by
Martinez v. Ryan, 566 U.S. 1, 9 (2012); Canales v. Stephens, 765 F.3d 551, 566
(5th Cir. 2014). Ramey’s claim is thus procedurally defaulted, see Canales,
765 F.3d at 566, and therefore not subject to the strictures of AEDPA, which
requires an adjudication on the merits, see 28 U.S.C. § 2254(d). We
pretermit whether Ramey can overcome the procedural default by
4
Ramey was represented at trial by Dr. Joseph Rutherford Willie, II, D.D.S., J.D.
and Mr. James Donald Evans, III (collectively, “Trial Counsel”).
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demonstrating “cause for the default and actual prejudice as a result of the
alleged violation of federal law,” Coleman, 501 U.S. at 750, and we instead
“cut straight to the merits to deny his claim,” Murphy v. Davis, 901 F.3d 578,
589 n.4 (5th Cir. 2018). We review the district court’s conclusions of law de
novo and factual findings for clear error. Id. at 590.
B.
To warrant relief, Ramey must demonstrate “that counsel’s
performance was deficient” and “that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Proving
deficient performance “requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id. Proving prejudice requires that Ramey show
a “reasonable probability”—“a probability sufficient to undermine
confidence in the outcome”—that “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694; see also
Adekeye v. Davis, 938 F.3d 678, 683 (5th Cir. 2019) (prejudice requires
showing that “it was ‘reasonably likely’ the jury would have reached a
different result, not merely that it could have reached a different result”).
When assessing prejudice, this court must “evaluate the totality of the
available . . . evidence,” including “evidence adduced in the habeas
proceeding.” See Williams v. Taylor, 529 U.S. 362, 397 (2000).
Ramey asserts that Trial Counsel’s performance was deficient
because they did not conduct any pre-trial investigation of the State’s case
against Ramey. He argues that this deficient performance prejudiced him
because proper investigation would have yielded valuable impeachment
material of the State’s witnesses, which was particularly important because
the State built its case against Ramey around testimony rather than physical
evidence.
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Indeed, the State’s ballistics expert admitted that he could not say the
guns recovered from the dam were the same guns used in the murders. The
ballistics expert also could not say who fired the guns. Further, there was no
physical evidence connecting Ramey to the crime scene. In the absence of
physical evidence, the State relied on testimony from an array of witnesses to
incriminate Ramey, many of whom, Ramey argues, Trial Counsel failed to
properly investigate and then impeach.
We do not decide whether Ramey’s Trial Counsel was deficient
because we find that Ramey cannot meet his burden to show prejudice—that
is, he has not shown “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Trevino v. Davis, 861 F.3d 545, 549 (5th Cir. 2017). Although
some of the witnesses presented by the State posed credibility issues that,
according to Ramey, Trial Counsel could have exposed through proper
investigation and impeachment, the parties do not dispute that other witness
testimony was unaffected by alleged investigative error committed by Trial
Counsel.
Indeed, the district court found that Ramey had not shown prejudice
because the “witnesses whose testimony is unaffected by his federal claims
provided testimony [that] put[] the events into a highly incriminating
context” and “show [Ramey’s] involvement in the crime.” Ramey, 314 F.
Supp. 3d at 824–25. We agree. This “unaffected” circumstantial evidence
of Ramey’s crime—including Ramey’s direct confession—is
overwhelming. 5
5
The district court painstakingly parsed government witnesses, highlighting
incriminating testimony that would be unaffected by allegations of deficient trial
investigation. Ramey v. Davis, 314 F. Supp. 3d at 824–25. These witnesses included Lonny
Lyte (Ramey’s stepfather), Courtney Hardaway (Ramey’s former girlfriend and his
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Notably, the testimony of Stacey Johnson, which the parties do not
dispute is unaffected by Trial Counsel’s alleged errors, is particularly
damaging. Johnson, Ramey’s former girlfriend, told the jury that Ramey
admitted his involvement in the triple murder and that she assisted Ramey in
disposing of the purported murder weapons. She testified that on August 27,
2005, Ramey called her and asked if she would drive him to a location with
running water. Johnson agreed to take Ramey to a local dam. Johnson
testified that during the drive, Ramey spoke on the phone with his stepfather,
Lonny Lyte. Once they arrived at the dam, Johnson saw Ramey wipe off two
pistols and throw them into the water. Johnson remembered precisely where
Ramey disposed of the pistols and led investigators there to retrieve them
four months later. Johnson testified that, during the drive home from the
dam, Ramey admitted that the guns she watched him toss into the water were
the same guns used in the triple murder. Once the pair arrived at Johnson’s
home, Ramey explained in detail how the triple murder played out. Johnson
testified that Ramey admitted to shooting Lopez, Peacock, and Roberts.
After telling Johnson about the triple murder, Ramey told Johnson he would
kill her if she spoke to the police. Finally, Johnson testified that Ramey told
her he stole the pistols used in the triple murder during the Nairn burglary.
Johnson provided the jury with facts that interlocked with and
bolstered the testimony of numerous other witnesses, including other
witnesses unaffected by Trial Counsel’s alleged ineffectiveness. For
example, her testimony is consistent with Lyte’s testimony, which Ramey
does not dispute is also unaffected by alleged pretrial investigative error that
Trial Counsel committed. Lyte testified that, on August 27, 2005, Ramey
children’s mother), Bradford Butler (Ramey’s cousin), and Stacey Johnson (Ramey’s
former girlfriend). Id. We agree and elaborate above the prominent testimony of Stacey
Johnson.
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called him to ask: “If you was to kill somebody what would you do with the
guns?” Lyte recommended throwing the guns in a river.
Ramey attempts to downplay Johnson’s testimony by noting that her
description of the guns Ramey threw into the water did not match the guns
recovered by the dive team. This factual discrepancy does not negate
Ramey’s damaging admissions to Johnson. Ramey’s other attempts to
undermine Johnson’s testimony also fail: (1) Ramey faults the State for
seeking to elicit hearsay testimony from Johnson, but Trial Counsel objected
to such testimony and the trial judge sustained the objection; (2) Ramey
contends the State used leading questions to elicit testimony, but most of
Johnson’s testimony was not the result of leading questions; (3) Ramey
complains that the State refreshed Johnson’s recollection using her voluntary
statement to police, but that tended to make her testimony more reliable
because it was derived from a written record; and (4) Ramey states that
Johnson had an “obvious motive to testify” against him, namely a feud with
Ramey’s new girlfriend—but the jury was made aware of this fact during
cross-examination, and it seems improbable that, as a result of a domestic
dispute, Johnson would be willing to testify against her ex-boyfriend, a man
who had threatened to take her life if she spoke to the police, in a capital
murder trial where his life was on the line. Lastly, Ramey asserts that
Johnson’s testimony was “contradicted by” Norman’s testimony because,
while Johnson testified that Ramey told her he shot all three victims, Norman
testified that Norman shot at least one of the victims. But the statements are
not inconsistent—it is possible that both Ramey and Norman shot the same
victim at least once each.
Although some of the witnesses presented by the State posed potential
credibility issues, the remaining and unaffected witness testimony, above all
that of Stacey Johnson, assures us that those credibility issues do not
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“undermine confidence in the outcome” of the trial. Trevino, 861 F.3d at
549. For that reason, we do not grant relief on Ramey’s Strickland Claim.
IV.
For the foregoing reasons, we AFFIRM the district court’s denial of
Ramey’s habeas petition.
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