Gutierrez v. Saenz

93 F.4th 267

Ruben GUTIERREZ, Plaintiff—Appellee, v. Luis V. SAENZ; Felix Sauceda, Chief, Brownsville Police Department, Defendants—Appellants.

No. 21-70009

United States Court of Appeals, Fifth Circuit

FILED February 8, 2024

Appeal from the United States District Court for the Southern District of Texas, USDC No. 1:19-CV-185, Hilda G. Tagle, U.S. District Judge

Peter James Walker, Anne Fisher, Federal Community Defender Office, Eastern District of Pennsylvania, Richard W. Rogers, III, Corpus Christi, TX, for Plaintiff-Appellee.

Jefferson David Clendenin, Assistant Attorney General, Michael Abrams, Office of the Attorney General, Austin, TX, Ari Cuenin, Stone Hilton, P.L.L.C., Austin, TX, Edward A. Sandoval, District Attorney's Office for the County of Cameron, Brownsville, TX, for Defendant-Appellant Luis V. Saenz.

Guillermo Samuel Trevino, Lena Cherie Chaisson-Munoz, City Attorney's Office for the City of Brownsville, Brownsville, TX, for Defendant-Appellant Felix Sauceda, Chief, Brownsville Police Department.

Before Southwick, Haynes, and Higginson, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

In 1999, Ruben Gutierrez was convicted of capital murder and sentenced to death in a Texas state court. Since 2011, Gutierrez's efforts to secure postconviction DNA testing have been denied in state and federal court. In this Section 1983 case, the district court accepted his claim that a particular limitation in Texas's DNA testing statute was unconstitutional. We conclude that Gutierrez had no standing to make this claim. We VACATE the district court's judgment and REMAND for the complaint to be dismissed for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

In September 1998, 85-year-old Escolastica Harrison was murdered. Ex parte Gutierrez, 337 S.W.3d 883, 886 (Tex. Crim. App. 2011). Harrison had been living with her nephew, Avel Cuellar, in a home that also served as the office for a mobile-home park in Brownsville, Texas. Gutierrez and Cuellar were friends. They along with other friends frequently gathered behind Harrison's home to drink and socialize. Because of Harrison's mistrust of banks, she had about $600,000 in cash in her home. Gutierrez had befriended Harrison and sometimes ran errands for her. Sadly, that led to Gutierrez's finding out about the money. Gutierrez crafted a plan to steal it.

Three men were involved in the crime on September 5, 1998: Gutierrez, Rene Garcia, and Pedro Gracia. Only two entered the home, and Gutierrez insists he was the one who stayed outside. Harrison was murdered during the robbery. Police soon considered Gutierrez a suspect.

On three separate days, Gutierrez made three contradictory statements to the police. Gutierrez first told police he was not involved with Harrison's murder, claiming an alibi. When the alibi failed, Gutierrez told police that he had planned to "rip off" Harrison but had waited at a park while Rene Garcia and Pedro Gracia stole from her; he had never wanted them to kill her. Gutierrez last stated that he had lied about waiting in a park and that he had, in fact, been in Harrison's home on the day of her murder. When Rene Garcia failed to lure Harrison outside the home so that Gutierrez could discreetly steal the money, Gutierrez entered and saw Rene Garcia repeatedly stab the victim with a screwdriver. Gutierrez took the money, and Pedro Gracia drove the three of them away from the home.

At the 1999 trial in Cameron County state district court, the prosecution's theory was that Gutierrez intentionally murdered Harrison, either as a principal or party. The prosecution relied on (1) the testimony of the medical examiner that the stab wounds came from two different screwdrivers; (2) Gutierrez's statement that he and Rene Garcia had been inside the victim's home with two different screwdrivers; and (3) four witnesses placing Gutierrez at the crime scene on the day of the killing.

The jury was instructed that it could convict Gutierrez for capital murder if it found he acted alone or as a party with an accomplice to cause Harrison's death intentionally. The jury returned a general verdict of guilt, and in April 1999 the trial judge sentenced him to death. The Texas Court of Criminal Appeals affirmed in 2002.

Then began decades-long postconviction proceedings. Gutierrez filed a state habeas application that was denied by the Texas Court of Criminal Appeals in 2008. Gutierrez then filed a habeas application in federal district court in 2009. The district court stayed the proceedings to allow him to pursue unexhausted state law claims in state court. As part of these additional claims, Gutierrez requested counsel be appointed to file a Texas Code of Criminal Procedure Chapter 64 motion for DNA testing of several pieces of evidence: (1) a blood sample taken from the victim; (2) a shirt belonging to Cuellar that had blood stains on it; (3) nail scrapings from the victim; (4) several blood samples from in the home; and (5) a loose hair recovered from the victim's finger. The state court denied the request, and the Court of Criminal Appeals dismissed Gutierrez's appeal from the decision as premature because he had not actually filed a motion for DNA testing at that point.

Gutierrez then filed his state-court motion for postconviction DNA testing under Chapter 64 in 2010. In his motion, Gutierrez acknowledged being one of the three men involved in the robbery of Harrison. He claimed DNA evidence would show he was not one of the two individuals who entered the victim's home — and by extension, would show by a preponderance of the evidence that jurors would not have convicted him of capital murder or sentenced him to death. The trial judge denied the motion. The Court of Criminal Appeals affirmed in 2011, in part on the grounds that Chapter 64 "does not authorize testing when exculpatory testing results might affect only the punishment or sentence that he received." Id. at 901 (citing

TEX. CODE CRIM. PROC. art. 64.03(a)(2)(A)).

The federal district court reopened the habeas case once the state proceedings concluded in 2011. It denied Gutierrez's habeas application entirely and his request for a certificate of appealability. See Gutierrez v. Stephens, 590 F. App'x 371, 374 (5th Cir. 2014). This court also denied a certificate of appealability. Id. at 375.

Over the next few years, Gutierrez continued to seek DNA testing. In June 2019, the state district court initially granted his motion for DNA testing but withdrew the order a few days later and then denied the motion. On February 26, 2020, the Court of Criminal Appeals upheld the denial. Gutierrez v. State, No. AP-77, 2020 WL 918669, at *9 (Tex. Crim. App. Feb. 26, 2020).

While the state-court proceedings were ongoing, Gutierrez brought this suit under 42 U.S.C. § 1983 in the United States District Court, Southern District of Texas in Brownsville. The only defendants who are parties to this appeal are Cameron County District Attorney Luis V. Saenz and Brownsville Police Chief Felix Sauceda, Jr. Gutierrez's September 2019 complaint challenged both (1) the constitutionality of Texas postconviction DNA testing procedures, and (2) execution protocols prohibiting the presence of chaplains or religious ministers inside the execution room. Gutierrez amended his complaint after the February 2020 decision of the Court of Criminal Appeals. The defendants moved to dismiss. The district court granted the defendants' motion in part but declined to dismiss Gutierrez's challenge to the constitutionality of Texas law on DNA testing. Gutierrez's execution was then stayed.

This court vacated the district court's stay, but our decision was in turn vacated by the Supreme Court. Gutierrez v. Saenz, 818 F. App'x 309, 315 (5th Cir. 2020), cert. granted, judgment vacated, — U.S. —, 141 S. Ct. 1260, 209 L.Ed.2d 4 (2021). The Supreme Court ordered us "to remand the case to the District Court for further and prompt consideration of the merits of petitioner's underlying claims regarding the presence of a spiritual advisor in the execution chamber." Gutierrez, 141 S. Ct. at 1261. That is what we did.

In March 2023, the district court granted the defendants' opposed motion to dismiss Gutierrez's religious exercise claims as moot after the Director of the Texas Department of Criminal Justice submitted an affidavit approving Gutierrez's request to have his chosen spiritual adviser pray aloud and place a hand on Gutierrez's shoulder during the execution, among other requests. Gutierrez did not appeal the dismissal.

Besides the religious accommodation issues, Gutierrez continued his efforts to acquire DNA testing. He claimed that a limitation under Texas law for acquiring that testing was unconstitutional. The alleged invalidity was not directly with Chapter 64 but with how it improperly limited the rights granted in another Texas statute that governs successive habeas applications for those sentenced to death. See TEX. CODE CRIM. PROC. art. 11.071. As the federal district court put it, "Texas grants the substantive right to file a second habeas petition with a clear and convincing showing of innocence of the death penalty in Article 11.071 [§ 5(a)(3)], and then Chapter 64 denies the petitioner access to DNA evidence by which a person can avail himself of that right." Gutierrez v. Saenz, 565 F. Supp. 3d 892, 910 (S.D. Tex. 2021). In the district court's view, the right to bring a successive habeas application to claim innocence of the death penalty was "illusory" and therefore violated procedural due process. Id. at 910-11. The district court granted a declaratory judgment for Gutierrez. Id. at 911. The district court later entered partial final judgment as to the DNA claims. The defendants timely appealed.

DISCUSSION

Because we conclude that Gutierrez did not have standing to bring this suit, it is the only issue we consider.¹

Texas prisoner Gutierrez brought suit under Section 1983 to challenge the constitutionality of a limitation under...