Case 5:08-cv-00805-XR Document 68 Filed 09/23/11 Page 1 of 170 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION RAMIRO HERNANDEZ a/k/a § RAMIRO HERNANDEZ LLANAS, § TDCJ No. 999342, § § Petitioner, § § V. § CIVIL NO. SA-08-CA-805-XR § RICK THALER, Director, § Texas Department of Criminal § Justice, Correctional § Institutions Division, § § Respondent. § MEMORANDUM OPINION AND ORDER Petitioner Ramiro Hernandez Llanas filed this habeas corpus action pursuant to 28 U.S.C Section 2254 challenging his Bandera County conviction for capital murder and sentence of death. For the reasons set forth hereinafter, petitioner is not entitled to habeas corpus relief from this Court but is entitled to a Certificate of Appealability regarding his claim that he is mentally retarded. I. Statement of the Case A. The Crime and Aftermath Beginning late on the evening of October 14, 1997 and continuing into the early morning hours of October 15, 1997, Case 5:08-cv-00805-XR Document 68 Filed 09/23/11 Page 2 of 170 petitioner bludgeoned to death his employer Glen Lich with a metal bar, then ransacked the Lich residence and repeatedly sexually assaulted Lich’s wife at knife-point.1 Mrs. Lich testified at length during petitioner’s trial concerning petitioner’s activities on the night of her husband’s murder. She recounted, without contradiction by petitioner or any other witness, that (1) she met the petitioner when he arrived at the Lich residence in July, 1997 to assist a carpenter who was helping to renovate the ranch house and other buildings, (2) petitioner worked at the Lich residence for about three weeks, (3) months later, around the beginning of October, 1997, petitioner telephoned her husband and negotiated an arrangement in which petitioner received room and board at the Lich residence in exchange for assisting Mr. Lich and others who were continuing the renovations, (4) on October 14, 1997, after petitioner had been staying at the Lich residence for about ten days, petitioner knocked on the door of the Lich bedroom around ten p.m. and Glen Lich went outside to talk with petitioner, (5) not long thereafter, Mrs. Lich looked up from reading the paper and saw petitioner on the porch outside the bedroom, (6) petitioner opened the door and entered the bedroom, covered in blood and holding a knife in his hand, (7) petitioner approached Mrs. Lich, 1 Statement of Facts from petitioner’s trial court proceedings (henceforth “S.F. Trial”), Volume 18, testimony of Lera Lich, at pp. 32-79. 2 Case 5:08-cv-00805-XR Document 68 Filed 09/23/11 Page 3 of 170 held the knife to her neck, tore off her glasses, pulled off her clothes, and forced her on to the bed, (8) petitioner undressed himself and proceeded to have non-consensual vaginal intercourse with Mrs. Lich while holding the knife to her neck, i.e., he raped Mrs. Lich, (9) Mrs. Lich, who speaks very little Spanish tried to communicate with petitioner while she was being sexually assaulted but was only able to understand a few words petitioner spoke in English, (10) when she asked about her husband, petitioner responded in English with phrases such as “five hours,” “Laredo,” “five thousand dollars,” “ten thousand dollars,” and “my brother,” and in Spanish with “fifteen thousand dollars, then your husband will be back,” (11) after twice sexually assaulting Mrs. Lich, petitioner escorted her to the bathroom where he held her at knife point while she relieved herself, (12) petitioner then took her back to the bedroom, where he wrote down the numbers “10,000" and “15,000" on a piece of paper, (13) petitioner placed or attempted to place several telephone calls, finally reaching someone with whom petitioner had an angry conversation in Spanish, (14) petitioner then tore a towel into strips and tied Mrs. Lich’s hands and ankles to the bed and covered her face with a blanket, (15) Mrs. Lich was nonetheless able to see out of a corner of the blanket and witnessed petitioner ransacking the bedroom, placing jewelry and other items in a plastic bag, (16) in Spanish, petitioner 3 Case 5:08-cv-00805-XR Document 68 Filed 09/23/11 Page 4 of 170 threatened Mrs. Lich’s elderly mother, who was asleep nearby in a separate bedroom, (17) petitioner removed the blanket from Mrs. Lich and asked for the keys to the Lich’s Jeep, (18) Mrs. Lich nodded in the direction of the keys, (19) petitioner went outside and started the Jeep but, after a few minutes, turned off the engine, came back inside, and tied Mrs. Lich’s wrists and ankles even more securely to the bed with wires, (20) petitioner made a second series of telephone calls, after which he yanked all the phones in the room off the hook, (21) then, petitioner went outside for a period of time, (22) petitioner came back inside, rummaged throughout the bedroom again, then untied Mrs. Lich and raped her at least two more times at knife point, (23) during the second series of sexual assaults, petitioner wore Glen Lich’s watch, Mrs. Lich’s grandmother’s wedding ring, and several of Mrs. Lich’s necklaces, (24) when Mrs. Lich asked petitioner about her husband, petitioner replied “two hours Laredo,” asked her if she wanted to live longer, instructed her not to call the police, and indicated she would see her husband again if she gave petitioner the money he had demanded, (25) petitioner threatened Mrs. Lich’s elderly mother and Mrs. Lich’s daughter, the latter by name, and (26) at one point, petitioner gestured with a syringe motion and said it was “okay with me.”2 2 Id., at pp. 32-79, 90-98, 104-07. 4 Case 5:08-cv-00805-XR Document 68 Filed 09/23/11 Page 5 of 170 Lera Lich survived petitioner’s repeated sexual assaults and, when petitioner fell asleep following the second wave of such assaults, slipped out of his grasp and made her way to a neighboring residence in rural Kerr County.3 When sheriff’s deputies arrived at the Lich residence, they found petitioner sound asleep on the bed.4 When the sheriff’s deputies woke petitioner, he violently resisted arrest but was eventually subdued and arrested.5 Shortly after petitioner’s arrest, Kerr County Sheriff’s personnel took Lera Lich to the hospital, where a sexual assault kit was collected.6 3 S.F. Trial, Volume 18, testimony of Lera Lich, at pp. 89- 86. 4 S.F. Trial, Volume 18, testimony of Randall T. Sanders, at pp. 116-18, 128-30. 5 S.F. Trial, Volume 18, testimony of Randall T. Sanders, at pp. 118-21, 130-31. During petitioner’s examining trial, Deputy Sanders gave a much more graphic account of petitioner’s violent resistance to the attempts of himself and another deputy to secure petitioner on the morning in question. S.F. Trial, Volume 2, testimony of Randall T. Sanders, at pp. 67-74. 6 S.F. Trial, Volume 18, testimony of Francis Kaiser, at pp. 186-89; testimony of Barbara Jolene Fudge, at pp. 192-99. 5 Case 5:08-cv-00805-XR Document 68 Filed 09/23/11 Page 6 of 170 Law enforcement officials searched the Lich residence and found Glen Lich’s body near a generator building.7 His skull had been battered beyond recognition.8 On the morning of October 15, 1997, after having been given his Miranda warnings in Spanish, petitioner gave an audiotape recorded statement in Spanish to law enforcement officials in which he identified himself as “Reuben Salinas.”9 On the afternoon of the same day, when confronted again by law enforcement officers and given a second set of Miranda warnings in Spanish, petitioner admitted his name was Ramiro Hernandez and gave a second audiotape recorded statement in Spanish.10 As he had in his first statement, in his second statement, petitioner admitted he had struck Glen Lich “once” with a metal bar but, in his second statement, petitioner admitted for the first time that 7 S.F. Trial, Volume 18, testimony of Randall T. Sanders, at pp. 122-27. 8 Id., at p. 124. Numerous photographs of both crime scenes (i.e., the bloody location near the generator building where Glen Lich’s mutilated body was found in close proximity to a bloody piece of metal rebar and the ransacked, blood-stained, Lich bedroom) were admitted into evidence as State’s Exhibits 29-54, 56-66, and 69, and are found in S.F. Trial, Volume 24. 9 S.F. Trial, Volume 5, testimony of Gerardo De Los Santos, at p. 38. 10 S.F. Trial, Volume 2, testimony of Gerard De Los Santos, at pp. 80-89; Volume 5, testimony of Gerardo De Los Santos, at pp. 35-41. 6 Case 5:08-cv-00805-XR Document 68 Filed 09/23/11 Page 7 of 170 he had sexually assaulted Mrs. Lich “once.”11 Both of petitioner’s recorded statements and English translations of same were admitted into evidence during his examining trial but neither statement nor any transcription of same was offered or admitted into evidence during petitioner’s subsequent capital murder trial. B. Indictment On November 17, 1997, a Kerr County grand jury indicted petitioner on a single count of capital murder, to wit, intentionally causing the death of Glen Lich by striking and beating Glen Lich with a metal bar, while in the course of committing and attempting to commit the offenses of sexual assault of Lera Lich, robbery of Lera Lich, and burglary of a habitation with intent to commit theft of Lera Lich.12 11 English version transcriptions of both of petitioner’s audiotape recorded statements appear in the record herein as exhibits to the verbatim transcription of petitioner’s examining trial, i.e., S.F. Trial, Volume 2. In his first statement (which is 16 pages in length), petitioner identified himself as Reuben Salinas, claimed he struck Glen Lich only once, denied he sexually assaulted Mrs. Lich, claimed he had consumed a large amount of beer and liquor the night of the murder, and expressed remorse for having killed Glen Lich. In his second statement, petitioner stated he “made love” to Mrs. Lich only one time, he only remembered striking Glen Lich “once,” he never had any problems with Glen Lich, and he drank heavily the night of the murder. 12 Transcript of pleadings, motions, and other documents filed in petitioner’s trial court proceedings (henceforth “Trial Transcript”), Volume I, at p. 5; Transcript of pleadings. motions, and other documents filed in petitioner’s state habeas 7 Case 5:08-cv-00805-XR Document 68 Filed 09/23/11 Page 8 of 170 C. Guilt-Innocence Phase of Trial Following a change of venue to Bandera County, the guilt- innocence phase of petitioner’s capital murder trial commenced on February 7, 2000. In addition to the testimony of Lera Lich and other evidence summarized above, the prosecution presented testimony establishing that (1) Lera Lich’s physical examination on the morning of October 15, 1997 revealed evidence of extreme violence, to wit, severe trauma to her cervix, abrasions and bruises in the vaginal area, bi-lateral lacerations in the labia minora, and a pooling of blood in the vaginal vault13; (2) photographs taken of Lera lich during her physical examination revealed cuts on her neck, throat, left palm, right shoulder, and left upper arm, as well as bruises on her chest14; (3) blood found on petitioner’s shirt, pants, and the metal bar found near Glen Lich’s body all matched the DNA of Glen Lich15; (4) mixed DNA samples found on the sheets taken from the Lich bed consisted corpus proceeding (henceforth “State Habeas Transcript”), Volume I, at p. 2. 13 S.F. Trial, Volume 18, testimony of Barbara Jolene Fudge, at pp. 196-99. 14 S.F. Trial, Volume 18, testimony of Francis Kaiser, at pp. 187-88. Photographs taken of Mrs. Lich during her examination were admitted into evidence as State Exhibits nos. 79-84 and appear in S.F. Trial, Volume 24. 15 S.F. Trial, Volume 18, testimony of Brady Mills, at pp. 208-11. 8 Case 5:08-cv-00805-XR Document 68 Filed 09/23/11 Page 9 of 170 of DNA from the blood of Lera Lich and semen of the petitioner16; (5) a couple weeks before the murder, petitioner told his cousin Martin Salinas that he (petitioner) planned to “hodor” (i.e., “hurt”) his boss, steal his boss’s jeep, and sell it in Mexico17; (6) after Lich’s murder, petitioner saw his cousin in jail and told his cousin the murder was “a stupid thing”18; (7) following his arrest, petitioner telephoned a friend from jail and told her he had killed a man and raped a lady19; and (8) Sheriff’s deputies found (a) strips of cloth and wires tied to the head board and foot board of the Lichs’ bed, (b) sacks filled with jewelry on the floor of the Lichs’ bedroom, (c) a bloody “crowbar” near Glen Lich’s body, (d) a bloody flashlight on the bedroom floor beside the bed, (e) bloody bed sheets, pillows, and a quilt on the bed, (f) petitioner’s bloody shirt, shoes, and baseball cap, and (g) a black handled knife.20 16 Id., at pp. 212-13. 17 S.F. Trial, Volume 18, testimony of Martin Salinas, at pp. 222-26, 231, 246-27. 18 Id., at p. 234. 19 S.F. Trial, Volume 18, testimony of Maria Del Carmen Serrano, at p. 253. 20 S.F. Trial, Volume 18, testimony of James A. Hicks, at pp. 139-64; testimony of Todd Burdick, at pp. 167-70. Photographs of the crimes scenes, both the Lichs’ bedroom and the location where Glen Lich’s body was found, were admitted into evidence at State Exhibit nos. 29-54, 56-66, and 69 and appear in S.F., Trial, Volume 24. 9 Case 5:08-cv-00805-XR Document 68 Filed 09/23/11 Page 10 of 170 A blood spatter expert testified the “crowbar” found near Glen Lich’s body with a large amount of blood on it could have been used to bludgeon the victim and could have caused the pattern of blood spatter found on the generator, the generator building, and many other objects located in all directions six feet or more from Lich’s body.21 The medical examiner testified the autopsy of Glen Lich revealed (1) a tremendous deformation injury to the head and cranial vault, (2) multiple lacerations and tears throughout the full thickness of the scalp, (3) lacerations to the middle of the face, across the bridge of the nose, (4) subtotal amputation of the right ear from the head, (5) lacerations to the jaw and mouth, (6) contusions and abrasions to the right clavicle, (7) contusions on the right side of the neck and sternocleidomastoid muscle, (8) a massive skull fracture to the top of the cranium, (9) separation of the top of the skull from the brain, (10) extensive fractures to the base of the brain consistent with brain injuries one would expect to see in a car accident, (11) a minimum of six blows were necessary to inflict the damage done to Glen Lich’s head, (12) possibly as many as seventeen blows were administered to Glen Lich’s head, far more than the number necessary to cause death, (13) some of the blows may have been 21 S.F. Trial, Volume 19, testimony of Kevin Crosthwait, at pp. 16-17, 28-37. 10