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Ruiz v. Edge ( 2021 )


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  • Case: 19-40277     Document: 00515810253         Page: 1     Date Filed: 04/06/2021
United States Court of Appeals
for the Fifth Circuit                             United States Court of Appeals
Fifth Circuit
FILED
April 6, 2021
No. 19-40277
Summary Calendar                       Lyle W. Cayce
Clerk
Rafael Verdejo Ruiz,
Petitioner—Appellant,
versus
Derek Edge, Warden, Federal Correctional Institution, Texarkana,
Respondent—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:18-CV-22
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Rafael Verdejo Ruiz, federal prisoner # 17670-035, appeals the
dismissal of his
    28 U.S.C. § 2241
     petition as procedurally barred. Ruiz filed
the § 2241 petition to challenge his military court convictions and sentences
for rape of a person between the ages of 12 and 16; carnal knowledge with a
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-40277      Document: 00515810253           Page: 2    Date Filed: 04/06/2021
No. 19-40277
person between the ages of 12 and 16; and sodomy of a person between the
ages of 12 and 16. The district court dismissed the petition based on its
determination that Ruiz failed to exhaust the following § 2241 claims in the
military courts: (1) Ruiz’s constitutional rights were violated by the trial
court’s failure to instruct the jurors on the Government’s burden to disprove
the affirmative defense of mistake as to the victim’s age beyond a reasonable
doubt; (2) Ruiz’s adjudged sentence is not being honored thereby causing his
approved sentence to be enhanced; (3) trial counsel rendered ineffective
assistance by not objecting to the issues raised in claims one and two; (4)
appellate counsel rendered ineffective assistance by not raising issues one and
two on appeal; and (5) appellate counsel rendered ineffective assistance with
respect to Ruiz’s supplemental assignment of error with the Air Force Court
of Criminal Appeals in which he sought to raise ineffective assistance of trial
counsel claims. On appeal, Ruiz contends that he established cause and
prejudice to excuse the procedural default of those claims. He further
contends that the district court abused its discretion in dismissing his § 2241
petition without conducting an evidentiary hearing.
Federal courts have jurisdiction pursuant to § 2241 over petitions for
habeas corpus filed by individuals challenging military convictions. See Burns
v. Wilson,
    346 U.S. 137
    , 139 (1953). Before a petitioner convicted in military
court raises habeas claims before this court, he must exhaust his military
remedies. See Fletcher v. Outlaw,
    578 F.3d 274
    , 276-77 (5th Cir. 2009);
Wickham v. Hall,
    706 F.2d 713
    , 715 (5th Cir. 1983) (citing Schlesinger v.
Councilman,
    420 U.S. 738
    , 758 (1975)). A district court’s dismissal of a
§ 2241 petition for failure to satisfy the exhaustion requirement is reviewed
for an abuse of discretion. Fuller v. Rich,
    11 F.3d 61
    , 62 (5th Cir. 1994).
Based on our review of the record and submissions, we are
unpersuaded that Ruiz demonstrated an excuse for the procedural default of
his claims based on ineffectiveness of appellate counsel, see Murray v. Carrier,
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Case: 19-40277        Document: 00515810253         Page: 3   Date Filed: 04/06/2021
No. 19-40277
    477 U.S. 478
    , 488 (1986), the purported loss of his trial record, see Saahir v.
Collins,
    956 F.2d 115
    , 118 (5th Cir. 1992), actual innocence, see Reed v.
Stephens,
    739 F.3d 753
    , 767 (5th Cir. 2014), or Martinez v. Ryan,
    566 U.S. 1
    ,
16-17 (2012). We are likewise unpersuaded by Ruiz’s arguments regarding
the forfeiture component of his sentence.            See 10 U.S.C. § 858b.
Accordingly, Ruiz has failed to show that the district court abused its
discretion in dismissing his § 2241 petition for failure to exhaust his military
remedies without conducting an evidentiary hearing. See Fletcher,
    578 F.3d at 276-77
    ; Fuller,
    11 F.3d at 62
    ; United States v. Bartholomew,
    974 F.2d 39
    , 41
(5th Cir. 1992).
We will not review the plethora of new claims Ruiz has raised for the
first time in the many briefs and motions he has filed before this court. See
Fillingham v. United States,
    867 F.3d 531
    , 539 (5th Cir. 2017). Accordingly,
the district court’s dismissal of Ruiz’s § 2241 petition is AFFIRMED. With
the exception of Ruiz’s motion to supplement his reply brief, which is
GRANTED, all outstanding motions are DENIED.
3