Case: 23-70008 Document: 57-1 Page: 1 Date Filed: 11/04/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-70008
FILED
November 4, 2024
____________
Lyle W. Cayce
Cedric Allen Ricks, Clerk
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 Northern District of Texas
USDC No. 4:20-CV-1299
______________________________
Before Jones, Higginson, and Ho, Circuit Judges.
James C. Ho, Circuit Judge:
Cedric Allen Ricks was convicted in Texas state court of capital murder and sentenced to death for murdering his girlfriend and her eight-yearold son. Following the denial of his direct appeal and state habeas petition,
Ricks filed this habeas petition in federal district court. The district court
denied all claims. It also denied a certificate of appealability.
Ricks now asks our court for a COA on several of his claims. We deny
the motion for a COA.
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No. 23-70008
…
We may issue a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). For claims decided on procedural grounds, the applicant must
demonstrate that reasonable jurists would find debatable “whether the petition states a valid claim of the denial of a constitutional right” and “whether
the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). For claims decided on the merits, the applicant
must show that “reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.”
Id.
For claims that have been decided by the state court on the merits, we
must apply the standards of review in the Antiterrorism and Effective Death
Penalty Act (AEDPA). That is, “we may not issue a COA unless reasonable
jurists could debate that the state court’s decision was either contrary to, or
involved an unreasonable application of, clearly established Federal law, or
was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” Harper v. Lumpkin, 64
F.4th 684, 690 (5th Cir. 2023). Otherwise, we review de novo. Nelson v.
Davis,
952 F.3d 651, 658 (5th Cir. 2020).
First, Ricks raises a Batson claim, arguing that the prosecution discriminated against two prospective black jurors. Specifically, he argues that
the prosecution struck two black jurors because of their race, and that these
jurors were subject to disparate questioning. The district court denied the
claim on the merits. It found that Ricks failed to establish a prima facie case
of discriminatory treatment. While the prosecution struck two prospective
black jurors, it also accepted two black jurors as venire members. The district
court also found the prosecution’s race-neutral justifications for striking the
two jurors as credible and supported by the record. See Rhoades v. Davis, 914
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F.3d 357, 382−83 (5th Cir. 2019). The court also found no pattern of racially
disparate questioning. Furthermore, the notation of racial identity in the
prosecution’s jury selection notes does not, without more, constitute racial
discrimination. See Broadnax v. Lumpkin,
987 F.3d 400, 410 (5th Cir. 2021)
(noting that a spreadsheet noting the ethnicity and gender of jury members is
not alone a “smoking gun” that can render the racially neutral justifications
as pretextual).
Because the district court’s determinations are consistent with our
precedent, and because a trial court’s denial of a Batson claim is entitled to
great deference, Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam),
we conclude that reasonable jurists would not likely find the assessment
debatable or wrong. No COA will issue on this claim.
Next, Ricks raises a claim of ineffective assistance of appellate counsel
for failing to raise the Batson claim on appeal. This claim was denied on the
merits by the state court. Therefore, we must deny the request for COA on
this claim “unless reasonable jurists could debate that the state court’s
decision was contrary to, or involved an unreasonable application of, clearly
established Federal law.” Harper, 64 F.4th at 692 (cleaned up). To establish
ineffective assistance of appellate counsel, Ricks must show that the
counsel’s performance was deficient, and that the performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 689−94 (1984). Because
we find his Batson claim meritless as discussed above, his appellate counsel’s
failure to raise the claim on appeal was neither unreasonable nor prejudicial.
Third, Ricks purports that his due process rights were violated when
the jury saw him wearing shackles. The district court rejected Ricks’ claim
for two central reasons: Ricks exposed his shackles to the jury on his own,
and Ricks failed to provide any evidence showing that the exposure of the
shackles or the trial court’s actions amounted to a “substantial and injurious
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effect or influence in determining the jury’s verdict.” Hatten v. Quarterman,
570 F.3d 595, 604 (5th Cir. 2009) (citation omitted).
We find this claim procedurally defaulted. A federal court “will not
review a question of federal law decided by a state court if the decision of that
court rests on a state law ground that is independent of the federal question
and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722,
729 (1991). Ricks did not raise this claim in his direct appeal. Accordingly,
the Texas Court of Criminal Appeals held the claim procedurally barred in
his state habeas petition. See Ex Parte Ricks,
2020 WL 67777958, at *1 (Tex.
Crim. App. 2020). See also Ex Parte Nelson,
137 S.W.3d 666, 667 (Tex. Crim.
App. 2004) (“We have said countless times that habeas corpus cannot be
used as a substitute for appeal, and that it may not be used to bring claims
that could have been brought on appeal.”); Busby v. Dretke,
359 F.3d 708, 719
(5th Cir. 2004) (recognizing the direct appeal rule as an independent state
law ground that bars habeas review). Because his due process claim for
shackling is procedurally defaulted, and he has not shown cause or prejudice
to overcome it, no COA will issue on this claim.
Our dissenting colleague would grant a COA on the shackling claim.
He contends that we should not deny the COA based on procedural default,
because the district court reached the merits of this claim, without addressing
procedural default. But we are aware of no legal basis for granting a COA on
a claim that is destined to fail due to procedural default.
Lastly, Ricks also brings an ineffective assistance of counsel claim
against his trial counsel for failure to object to shackling and failure to raise
peremptory challenges to the State’s strikes against nine female venire
members.
We reject both arguments. First, we find that trial counsel’s decision
to refrain from objecting to the shackling was not unreasonable. As the state
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No. 23-70008
habeas court concluded, the omission was a strategic choice to not draw
further attention to the shackles. Second, we find trial counsel’s failure to
object to the State’s strikes against the female venire members to be
reasonable. Although the State used nine peremptory strikes on female
venire members, it offered gender-neutral explanations for its challenges.
The State also accepted nine other female members.
…
We deny the motion for a COA.
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Stephen A. Higginson, concurring in part, dissenting in part:
I agree with the majority’s decision to deny a certificate of
appealability on the Batson-related claims and the ineffective-assistance-ofcounsel claims. I write separately because I would grant a COA on Ricks’s
due process claim, which arises from his briefly visible shackling in front of
the jury during the sentencing phase of trial.
The majority concludes that this claim is procedurally defaulted,
relying, in part, upon the CCA’s holding that Ricks should have brought this
claim on direct appeal. However, the federal district court, whose opinion we
are reviewing, did not dismiss the claim on procedural grounds, but instead
resolved the claim on the merits. We are tasked with addressing whether
“reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). We are not tasked with assessing, in the first instance and on the
limited briefing before us, whether there exist other independent grounds on
which the district court could have denied Ricks’s claim, as a basis for us to
deny a COA.
Returning to our review of the district court’s order, reasonable jurists
could disagree as to the lower court’s assessment of the merits of Ricks’s due
process claim. The Supreme Court has held that visible shacking of a
defendant during the punishment stage of trial may violate the Fifth and
Fourteenth Amendment:
The appearance of the offender during the penalty phase in
shackles, however, almost inevitably implies to a jury, as a
matter of common sense, that court authorities consider the
offender a danger to the community—often a statutory
aggravator and nearly always a relevant factor in jury
decisionmaking, even where the State does not specifically
argue the point.
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Deck v. Missouri, 544 U.S. 622, 633 (2005). Post-Deck, our court has
reaffirmed its prior narrower holding that “brief and inadvertent exposure to
jurors of defendants in handcuffs is not so inherently prejudicial as to require
a mistrial; in such cases, defendants bear the burden of affirmatively
demonstrating prejudice” United States v. Turner,
674 F.3d 420, 435 (5th Cir.
2012) (internal quotation marks and citations omitted).
Here, the district court determined that Ricks exposed the shackles on
his own accord and therefore was not entitled to relief under the invited error
doctrine. When Ricks concluded his testimony during the punishment stage,
the state trial court judge directed, “you may step down, sir,” which is what
Ricks did. From that interaction, the district court concluded that Ricks
chose to stand up and to return to the defense table of his own volition before
any party could object. While Ricks did step down from the witness chair of
his own physical volition, he did so in response to an instruction from the trial
judge. Whether that behavior constitutes invited error that precludes relief
is one that reasonable jurists could surely debate.
In the alternative, the district court concluded that, even if Ricks had
not invited error, Ricks still failed to show that the shackles had “a substantial
and injurious effect or influence in determining the jury’s verdict.” Hatten v.
Quarterman, 570 F.3d 595, 604 (5th Cir. 2009). Reasonable jurists could also
conclude that this assessment is debatable. While “brief and inadvertent
exposure” to jurors of a defendant in handcuffs does not mandate a mistrial,
Turner,
674 F.3d at 435, whether such prejudice occurred here warrants
further exploration, see Slack,
529 U.S. at 484. While the jury may have seen
Ricks in shackles only briefly, the State affirmatively chose to remind the jury
of what they saw during its closing argument of the penalty stage:
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The answer to Special Issue Number 1, undoubtedly, should be
yes. This man is a continuing threat wherever he is to whoever
he is around. . . .
You saw him walk back to counsel table this morning with
shackles on. Everywhere he goes in the Tarrant County Jail,
he’s shackled and handcuffed. He’s not going to be like that in
the penitentiary. It’s a different setting. It's completely
different.
The State directly tied Ricks’ visible shackling to why the jury should find in
the affirmative to Special Issue Number 1, which asked “whether there is a
probability that the defendant would commit criminal acts of violence that
would constitute a continuing threat to society.” Tex. Code Crim.
Proc. art. 37.071, §2(b)(1). In Deck, the Supreme Court stated that visible
shackling during the punishment stage “implies” to a jury that the defendant
is a continuing threat to the community, 544 U.S. at 633; here, the State went
even further and explicitly made that argument to the jury.
With this backdrop, reasonable jurists could conclude that Ricks’s
visible shackling—albeit only briefly visible—was inherently prejudicial or
that Ricks met his burden in demonstrating it had a “substantial and injurious
effect” on the jury’s verdict. Because “reasonable jurists would find the
district court’s assessment of the constitutional claims debatable,” Slack, 529
U.S. at 484, I dissent.
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