Dissent
SUPREME COURT OF THE UNITED STATES
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No. 23–7809
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RUBEN GUTIERREZ, PETITIONER v. LUIS SAENZ, et al.
on writ of certiorari to the united states court of appeals for the fifth circuit
[June 26, 2025]
Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting.
The Court and I agree on one thing: we should decide this case based on the test adopted in Reed v. Goertz, 598 U. S. 230, 234 (2023). After that, however, the majority veers sharply off course. First, it blatantly alters the Reed test. See ante, at 1–2, 8, 10. Second, it then has the audacity to criticize the Fifth Circuit for applying the real Reed test. See ante, at 9. Third, it ignores critical differences between the situation in Reed and the situation here. See ante, at 9–11. Fourth, it paints a misleading picture of underlying facts and Gutierrez’s decades-long litigation campaign. See ante, at 2–6. Fifth, it fails to recognize the limited scope of the declaratory judgment at issue. See ante, at 9. And sixth, it ignores lawful and binding Texas law regarding the facts that may be considered when a prisoner seeks DNA testing. See ibid.
I
A
1
Because the majority paints a misleading picture of the facts and prior proceedings in this case, I begin by setting the record straight. In 1999, Gutierrez was convicted and sentenced to death for the brutal murder of Escolastica Harrison, an 85-year-old woman who lived in a mobile home park in Brownsville, Texas, with her nephew Avel Cuellar. See Ex parte Gutierrez, 337 S. W. 3d 883, 886 (Tex. Crim. App. 2011). As a result of his friendship with Cuellar, Gutierrez became acquainted with Harrison and occasionally ran errands for her. Ibid. Cuellar, Gutierrez, and other friends gathered to drink behind Harrison’s home—and Cuellar, while inebriated, revealed that Harrison kept her entire life savings (more than $600,000) in her home because she distrusted banks. See Gutierrez v. Stephens, 2013 WL 12092544, *1 (SD Tex., Oct. 3, 2013); Ex parte Gutierrez, 337 S. W. 3d, at 886.
When Gutierrez heard this, he hatched a plan to break into the mobile home and steal the money. Id., at 886. He recruited two accomplices—Rene Garcia and Pedro Gracia—and on September 5, 1998, the three men went to Harrison’s trailer home to execute the plan. Ibid. By the time they left the scene, Harrison had been beaten and stabbed 13 times in her face and neck with two different instruments. See id., at 887, and n. 2. When Cuellar came home that night, he reported discovering his elderly aunt’s dead body face-down in a pool of blood. Id., at 886.
Several witnesses told detectives that they had seen Gutierrez at the mobile home park on the day of the murder. Ibid.; see Gutierrez v. Stephens, No. 1:09–cv–00022 (SD Tex., July 30, 2012), ECF Doc. 23–96, pp. 22–23. Detectives visited Gutierrez’s home but were told he was not there. Ex parte Gutierrez, 337 S. W. 3d, at 886. The next day, Gutierrez voluntarily appeared at the police station and made the first of three conflicting statements. Ibid. He told detectives that on the day of the murder, he was driving with a friend far away from the mobile home park. Ibid.; see 93 F. 4th 267, 269 (CA5 2024). This alibi fell through, however, when the friend told a conflicting story. Ex parte Gutierrez, 337 S. W. 3d, at 886. In addition, Garcia and Gracia confessed to involvement in the crime, named Gutierrez as an accomplice, and said he was inside the mobile home when Harrison was killed.1 Id., at 891; ECF Doc. 2–2, at 2. Based on these statements and other evidence, Gutierrez was arrested. Ex parte Gutierrez, 337 S. W. 3d, at 887; ECF Doc. 2–2, at 2.
At the police station, Gutierrez agreed to give a second statement. Id., at 2. Abandoning his earlier story, he admitted that he had planned to “ ‘rip off ’ ” Harrison, but he claimed that he had not wanted to murder her. Ex parte Gutierrez, 337 S. W. 3d, at 887. He told the police he had been waiting at a park when Garcia and Gracia carried out the scheme. Ibid. When they later met, he asserted, Garcia was holding a screwdriver covered in blood and said he had killed Harrison. Ibid.
The following day, Gutierrez gave his third conflicting statement. Ibid. In a signed confession, he said that Garcia was supposed to lure Harrison out of her home so that Gutierrez could enter through the back of the trailer and steal the money, but when Harrison saw Gutierrez enter her home, Garcia knocked her out and began to stab her with a screwdriver. Ibid. Gutierrez admitted that both he and Garcia were armed with screwdrivers during the robbery. Gutierrez, 2013 WL 12092544, *2. Gutierrez said that he took the money while Garcia was stabbing Harrison and that Gracia drove everyone away from the scene. Ibid. The State of Texas then charged Gutierrez with capital murder committed in the course of a robbery. Ibid.
2
Gutierrez moved to suppress his signed confession, arguing that it was coerced and that the police continued to question him after he had invoked his right to counsel and his right to remain silent. See id., at *20. After conducting a hearing at which Gutierrez and two police officers testified, the judge denied the motion and issued detailed findings of fact.2 Ibid.; see also ECF Doc. 23–66, at 47–125.
Gutierrez appealed, but the TCCA affirmed. See Gutierrez, 2013 WL 12092544, *21.
3
At trial, the State’s theory was that Gutierrez was guilty of murder either as a principal or a party to the crime. 337 S. W. 3d, at 888. The State relied on Texas’s “law of parties,” under which “[a] person is criminally responsible as a party to an offense if the offense is committed . . . by the conduct of another for which he is criminally responsible.” Tex. Penal Code Ann. §7.01(a) (West 2021). Because Gutierrez had admitted to participating in the robbery, the State argued that he could be found guilty of murder even if he was not the one who delivered the fatal blows. See ECF Doc. 23–102, at 69–70.
Gutierrez’s defense offered a version of events that differed from all three of Gutierrez’s prior stories. The new account was that Cuellar had fatally stabbed Harrison. Gutierrez, 2013 WL 12092544, *3. The defense “intimated that the police had manufactured Gutierrez’s statements” and criticized the police for conducting a shoddy investigation. Ibid. The jury found Gutierrez guilty.
At the penalty phase of the trial, the State presented evidence that Gutierrez had a long history of crime and violence, including burglaries, assault on a police officer, and threats to kill an assistant district attorney and a prison guard. Ibid. The jury found (1) that Gutierrez posed a “continuing threat to society,” (2) that he had “intended to kill the deceased . . . or anticipated that a human life would be taken,” and (3) that any mitigating circumstance were insufficient to warrant a sentence of life imprisonment without parole. ECF Doc. 23–108, at 45–48; ECF Doc. 23–109, at 4–5; see Tex. Code Crim. Proc. Ann., Art. 37.071, §§2(b), (e)(1) (Vernon 2006). Based on these findings, the judge imposed a sentence of death.
Gutierrez appealed and argued, among many other things, that his confession should have been suppressed, but the TCCA affirmed his conviction and sentence. See Ex parte Gutierrez, 337 S. W. 3d, at 888; ECF Doc. 19, at 58–60.
B
The end of direct appellate review was just the start of a new litigation saga spanning 23 years (and counting). After the conclusion of direct appellate review in 2002, Gutierrez filed multiple petitions for state and federal post-conviction relief, none of which has been successful. See 93 F. 4th, at 269–270. And Gutierrez has told us that he intends to file yet another petition for state post-conviction relief. See Brief for Petitioner 40–41.
Among the many claims that Gutierrez has advanced in post-trial litigation, the claim involved here—that he is entitled to DNA testing of items found at the murder scene—has a prominent place. At trial, however, his counsel declined to request DNA testing. Ex parte Gutierrez, 337 S. W. 3d, at 897. As recounted by the TCCA, “the record affirmatively shows that DNA testing was available to appellant before trial,” but “defense counsel apparently did not have testing performed on those same items because of sound trial strategy.” Ibid. (emphasis added). Instead of risking what testing might reveal, counsel “used the fact that the Brownsville Police Department failed to test the evidence containing biological DNA evidence to argue the lack of investigation and the existence of reasonable doubt during the trial.” Id., at 896. The lack of testing figured prominently in his cross-examination of prosecution witnesses and was repeatedly raised during summation. Id., at 896–897, and n. 45.
The decision to forgo DNA testing at trial did not pay off, so after his conviction, Gutierrez changed course and demanded testing in post-conviction proceedings. Chapter 64 of the Texas Code of Criminal Procedure governs such requests, and Gutierrez filed his first Chapter 643 motion in 2010. See 93 F. 4th, at 269. He sought testing of: (1) a blood sample taken from Harrison; (2) a blood-stained shirt belonging to Cuellar; (3) nail scrapings from Harrison; (4) blood samples collected from Cuellar’s bathroom, from a raincoat located in or just outside Cuellar’s bedroom, and from the sofa in the front room of the home; and (5) a loose hair recovered from Harrison’s finger. Ex parte Gutierrez, 337 S. W. 3d, at 888. According to Gutierrez, the testing would show that he had not entered Harrison’s house and would “support his position that he neither murdered Mrs. Harrison nor anticipated her murder.” Ibid.
The trial court denied this motion, and the TCCA affirmed. Id., at 888–889, 901–902. The TCCA explained that Chapter 64 authorizes post-conviction DNA testing only when the results would affect the applicant’s conviction, not his sentence. Id., at 899–901. And in any event, it explained, favorable DNA results would not undermine the jury’s guilty verdict because they would not “make it less probable” that Gutierrez planned and participated in the crime. Id., at 901. Nor, it added, would such results affect Gutierrez’s eligibility for the death penalty because “the record facts satisfy the Enmund/Tison culpability requirements that he played a major role in the underlying robbery and that his acts showed a reckless indifference to human life.” Ibid.4
Gutierrez filed additional Chapter 64 motions for DNA testing in June 2019 and July 2021, but the trial court denied those motions, and each time the TCCA affirmed on the same grounds. Gutierrez v. Texas, 2020 WL 918669, *6–*9 (Feb. 26, 2020) (per curiam); 2 App. 477a–479a.
C
This brings us to the latest chapter—Gutierrez’s current suit. In September 2019, Gutierrez sued Cameron County District Attorney Luis Saenz and other Texas officials in federal court under Rev. Stat. §1979, 42 U. S. C. §1983. See Complaint in Gutierrez v. Saenz, No. 1:19–cv–00185 (SD Tex., Sept. 26, 2019), ECF Doc. 1. Gutierrez asserted several facial and as-applied constitutional challenges to Chapter 64, including a Fourteenth Amendment due process claim, a First Amendment access-to-courts claim, and an Eighth Amendment cruel-and-unusual-punishment claim. See ibid.
The District Court rejected almost all of Gutierrez’s claims, but the court held that Chapter 64 is unconstitutional insofar as it allows a defendant to seek post-conviction DNA testing to challenge his conviction but not his sentence. 565 F. Supp. 3d 892, 910–911 (SD Tex. 2021). The District Court entered a partial declaratory judgment for Gutierrez on that ground but did not issue the injunction Gutierrez had sought. Ibid.; see 2020 WL 12771965, *6 (SD Tex., June 2, 2020) (denying Gutierrez’s request for a “preliminary and permanent injunction” requiring Saenz to turn over the requested evidence (internal quotation marks omitted)). The State appealed, but Gutierrez did not cross-appeal, so the only issue before the Fifth Circuit was whether Gutierrez was entitled to a declaratory judgment on the one constitutional claim accepted by the District Court.
The Fifth Circuit did not reach the merits of that claim because it held that Gutierrez lacked standing. Our test for Article III standing, set out in Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992), has three prongs, and the Fifth Circuit found that Gutierrez failed the third prong—that is, the court found that Gutierrez could not show that his claimed injury (lack of DNA testing) was “ ‘likely’ ” to be redressed by the relief that could at that point be awarded. See 93 F. 4th, at 275; Lujan, 504 U. S., at 561 (“[I]t must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision” (internal quotation marks omitted)).
In Reed v. Goertz, this Court recently applied this test under related circumstances. As I will explain, there are critical differences between that case and the case at hand, but there are similarities that seem to have led the majority astray. In Reed, a prisoner sentenced to death (Rodney Reed) brought a §1983 action against a district attorney and sought a declaratory judgment that a particular provision of Chapter 64 (its chain-of-custody provision, Tex. Code Crim. Proc. Ann., Art. 64.03(a)(1)(A)(ii) (Vernon 2018)) violates the Constitution. This Court held that this declaratory judgment would redress the prisoner’s deprivation of DNA testing because it would “ ‘substantially’ ” alter the likelihood of the district attorney’s ordering DNA testing. Reed, 598 U. S., at 234.
There were multiple issues in Reed, and the Court’s discussion of redressability was terse. In its entirety, it was as follows:
“[I]f a federal court concludes that Texas’s post- conviction DNA testing procedures violate due process, that court order would eliminate the state prosecutor’s justification for denying DNA testing. It is ‘substantially likely’ that the state prosecutor would abide by such a court order. In other words, in ‘terms of our “standing” precedent, the courts would have ordered a change in a legal status,’ and ‘the practical consequence of that change would amount to a significant increase in the likelihood’ that the state prosecutor would grant access to the requested evidence and that Reed therefore ‘would obtain relief that directly redresses the injury suffered.’ ” Ibid. (emphasis added; citation omitted).5
The Court held that the prisoner satisfied this test. In other words, the Court was persuaded that if he got the declaratory judgment he wanted, it was “substantially likely” that the district attorney would order testing.
The Fifth Circuit faithfully applied this test in its decision below, taking into account the particular facts of Gutierrez’s case. It noted that the TCCA has repeatedly held that Gutierrez would still be responsible for the murder under the law of parties and would still be death- penalty eligible even if DNA testing provided the results he wanted. 93 F. 4th, at 272–273, 275. And it thus held that a decision in Gutierrez’s favor on his constitutional claim would not make it substantially likely that the district attorney would release the items for testing.6 Id., at 275.
Today’s decision, in contrast, flagrantly distorts the standard that Reed articulated. Indeed, the majority edits Reed’s critical language in a way that would draw rebuke if done by an attorney in a brief filed in this Court. Reed’s full discussion of redressability was quoted above. It consists of three sentences. The majority’s analysis is based entirely on the first sentence, which states: “ ‘[I]f a federal court concludes that Texas’s post-conviction DNA testing procedures violate due process,’ that court order would redress [a prisoner’s] injury by ‘eliminat[ing]’ the state prosecutor’s reliance on Article 64 as a reason for denying DNA testing.” See ante, at 12 (quoting Reed, 598 U. S., at 234). The second and third sentences explain why the conclusion drawn in the first sentence was true in Reed’s case: because the particular declaratory judgment that Reed sought (striking down Chapter 64’s chain-of-custody requirement) would “substantially” increase the likelihood that the district attorney would turn over the requested items for DNA testing. Id., at 234. But the majority pretends those sentences do not exist.
This distortion is bad enough, but to make matters worse, the majority then criticizes the Fifth Circuit for “transforming the redressability inquiry into a guess as to whether a favorable court decision will in fact ultimately cause the prosecutor to turn over the evidence.” Ante, at 11 (citing 93 F. 4th, at 274). In the majority’s view, this Court apparently should not consider whether the District Court’s judgment is likely to result in Gutierrez obtaining relief, but whether the District Court’s judgment removes just one of the numerous “barrier[s] . . . between Gutierrez and the requested testing.” Ante, at 12. The majority’s new test makes a hash of redressability. It appears that, under this new test, the likelihood of redress is simply not relevant. That most certainly is not what Reed held.
Under the real Reed test, a plaintiff like Gutierrez must show that a favorable decision on his constitutional claim is “ ‘substantially likely’ ” to prompt the district attorney to allow DNA testing. 598 U. S., at 234. And in this case, unlike in Reed, it is clear that the only relief that Gutierrez is in a position to seek—reinstatement of the District Court’s declaratory judgment—is most unlikely to cause respondent Saenz to order DNA testing. That is the conclusion that the Fifth Circuit reached after carefully considering the relevant facts, and that court was right. The following part of this opinion will explain why.7
II
A
The Texas courts have provided three reasons why Gutierrez is not entitled to the testing he seeks. Any one of these, if sound, would justify the denial of testing.
First, both the trial court and the TCCA have held that Gutierrez is not entitled to post-conviction DNA testing because such testing is unavailable under Chapter 64 to show ineligibility for the death penalty, and Gutierrez could not show by a preponderance of the evidence that he would not have been convicted if he obtained favorable DNA test results. See Ex parte Gutierrez, 337 S. W. 3d, at 899–901; Gutierrez, 2020 WL 918669, *5–*8. Second, both the trial court and the TCCA have concluded that even favorable DNA test results would not help Gutierrez because he would still be responsible for the murder and would still satisfy the Enmund/Tison Eighth Amendment requirements. See Ex parte Gutierrez, 337 S. W. 3d, at 901; Gutierrez, 2020 WL 918669, *8. Third, the trial court found that Gutierrez’s application for DNA testing was made for the purpose of delay. See id., at *5. This finding of fact was not addressed by the TCCA. See id., at *9.
Contrary to the majority’s suggestion, a favorable declaratory judgment respecting the first of these reasons (Chapter 64 does not allow post-conviction DNA testing to prove ineligibility for the death penalty) would not remove “the . . . barrier Article 64 erected between Gutierrez and the requested testing”; it would remove a barrier. Ante, at 12 (emphasis added). The District Court’s declaratory judgment regarding the constitutionality of Chapter 64’s limited grounds for post-conviction DNA testing, even if upheld by the Fifth Circuit and this Court, would affect only that reason and not the other two. And even if the TCCA did not accept the trial court’s finding that Gutierrez filed his Chapter 64 motion for the purpose of delay, the TCCA would almost certainly adhere to its prior decisions holding that favorable DNA results would not show that Gutierrez was innocent of the crime or ineligible for the death penalty. As a result, the only relief Gutierrez can possibly get in this case would not result in court-ordered testing unless the TCCA reverses course in an utterly unforeseeable way.
Gutierrez argues, however, that even if the declaratory judgment would not lead the Texas courts to grant DNA testing, respondent Saenz would still have discretion to turn over the items and might do so. See Brief for Petitioner 37–38. But Gutierrez does not spell out why Saenz might do that. His argument is based on rank speculation, and that is not enough to support redressability. See Lujan, 504 U. S., at 561.
Furthermore, nothing in the record suggests that there is any likelihood that Saenz would do what Gutierrez wants. The declaratory judgment would not require Saenz to order testing. And he would know that the testing would be pointless because even if the items were tested and revealed what Gutierrez hopes for, the Texas courts would not disturb his conviction or sentence.
Not only is there no reason to think that Saenz—for some unknown reason—might nevertheless order DNA testing, but his conduct to date strongly suggests the opposite. Even after the District Court issued its declaratory judgment, he refused to order testing. And Gutierrez cannot explain why Saenz has steadfastly declined to allow testing ever since. If he had any inclination to allow testing, he could have done that at any point during this litigation—for example, when Gutierrez filed his petition, when this Court granted review, at any point during the briefing process, before or after argument, or yesterday. Not only has he not done so, he has steadfastly maintained that he will not do so. His position is that this case should be dismissed!
Unable to explain why affirmance of the District Court’s declaratory judgment might change Saenz’s mind, the majority contends that a favorable decision on other constitutional claims asserted in Gutierrez’s complaint might do the trick. And it criticizes the Fifth Circuit for “bas[ing] its assessment of redressability on the declaratory judgment the District Court later issued, rather than Gutierrez’s complaint.” Ante, at 10.
This reasoning is fundamentally wrong and, if allowed to stand, will corrupt our Article III case law. Our standing requirements “persist throughout all stages of litigation.” Hollingsworth v. Perry, 570 U. S. 693, 705 (2013). “That means that standing ‘must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.’ ” Ibid. (quoting Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997)). The constitutional claims on which the majority relies were rejected by the District Court, and Gutierrez did not appeal that part of the judgment. As a result, the best relief that Gutierrez could now obtain in this case is an affirmance of the District Court’s declaratory judgment—and for the reasons already discussed, that relief would not make DNA testing substantially likely.
For all these the reasons, Gutierrez cannot satisfy Reed’s real test for redressability.
B
The majority treats this case as indistinguishable from Reed, but that is not correct. An examination of the situation in that case provides a clear explanation for the Reed Court’s conclusion that its test for redressability was met. And once that is understood, it is clear that the present case is different.
1
Rodney Reed was convicted and sentenced to death for the murder of Stacey Lee Stites, whose body was found partially clothed and abandoned near a back country road. Reed v. State, 541 S. W. 3d 759, 762 (Tex. Crim. App. 2017). Based on an examination of her body, the police concluded that she had been sexually assaulted and strangled with a belt found at the scene. Ibid. DNA found on semen in Stites’s body matched Reed’s genetic profile, and Reed was subsequently arrested and charged with her murder. See id., at 763. At trial, Reed argued (among other things) that he and Stites were in a romantic relationship, that they had engaged in consensual intercourse, and that the real culprit was Stites’s fiance, Jimmy Fennell. Ex parte Reed, 271 S. W. 3d 698, 710 (Tex. Crim. App. 2008). The jury was not persuaded, and Reed was convicted of capital murder and sentenced to death. Id., at 712.
Reed filed a Chapter 64 motion seeking DNA testing of the belt and more than 35 other items that were found either on Stites’s body, at the scene of the crime, or in or near the truck she shared with Fennell. Reed, 541 S. W. 3d, at 764–765. Applying Chapter 64, the TCCA ruled out consideration of evidence that fell into either of two categories. See id., at 773. First, the TCCA refused to consider 21 items on the ground that they did not satisfy Chapter 64’s chain-of-custody requirement.8 Id., at 769–770. Among these were the strap and buckle from the belt with which Stites had apparently been strangled. Id., at 769. Second, the TCCA excluded other items on the ground that they were not reasonably likely to contain biological material suitable for testing. Id., at 772. Eight items remained for the TCCA to consider, and five of them were found in or near the truck, not at the crime scene. Id., at 774–775. The court then found that favorable results with respect to these eight items would not have shown by a preponderance of the evidence that Reed was not guilty. Id., at 773–777.
2
Once the role that the chain-of-custody rule played in the TCCA’s analysis is understood, the support for this Court’s redressability finding in Reed is easy to understand. The declaratory judgment that Reed sought—striking down the chain-of-custody rule—would have critically undermined the TCCA’s holding with respect to the potential impact of DNA testing. Twenty-one additional items, including the belt, could have been considered. If Fennell’s DNA, but not Reed’s, had been detected on the belt and perhaps other items found at the scene, that would have provided significant support for Reed’s theory that Fennell was the murderer. As a result, the declaratory judgment might well have led to a state-court decision ordering DNA testing, and that possibility would have given the district attorney a reason to turn over the items even before such a state-court decision was handed down. The result would have been “a significant increase in the likelihood that the state prosecutor would grant access to the requested evidence.” Reed, 598 U. S., at 234 (emphasis added; internal quotation marks omitted).
In response, the majority argues that even if the chain of custody rule was held to be unconstitutional, the district attorney could have denied Reed’s request for another reason. Ante, at 11. That is true but beside the point. Under this Court’s decision in Reed, all that was required to show redressability was “a significant increase in the likelihood” that the district attorney would allow testing.
C
Gutierrez’s case presents a far different situation. Here, the TCCA has held that, even if DNA testing failed to detect Gutierrez’s DNA and detected the presence of Cuellar’s DNA, Gutierrez could not establish that he was not guilty of murder or that he is ineligible for a death sentence. The TCCA noted that, since Cuellar lived with Harrison in the same trailer home and was the person who found her dead body, detecting his DNA on many items in the house would not necessarily be incriminating. See Gutierrez, 2020 WL 918669, *7–*8. And more important, even if Cuellar’s DNA was detected on the most important items, such as the material found under Harrison’s fingernails, that would be of little value to Gutierrez. It would suggest that Cuellar was one of the individuals who stabbed Harrison—but that would not affect Gutierrez’s culpability or his sentence. Whether the fatal blows were administered by Garcia, Gracia, Cuellar, or some combination of these men, Gutierrez would still be guilty of murder under the law of parties because he participated in the scheme. See Tex. Penal Code Ann. §7.01(a). And because he had reason to know that the execution of his scheme could well result in the loss of life, he would still be eligible for the death penalty. See Enmund v. Florida, 458 U. S. 782, 797 (1982); Tison v. Arizona, 481 U. S. 137, 157–158 (1987). Thus, a favorable decision on Gutierrez’s constitutional argument would not bolster his challenge to his sentence.
Gutierrez responds that favorable DNA results might change the TCCA’s thinking because that court’s holding on the effect of DNA evidence did not take into account newly discovered evidence that he wants to introduce. See Brief for Petitioner 38–42. The majority suggests that, in assessing whether Gutierrez’s injury of not receiving DNA testing is redressable, the Fifth Circuit should have considered Gutierrez’s assertion in his complaint that favorable DNA results along with the new evidence could render him ineligible for the death penalty. See ante, at 9–10. But the TCCA has held that only evidence in the trial record may be considered in determining whether post-conviction DNA testing is allowed. See Holberg v. State, 425 S. W. 3d 282, 285 (Tex. Crim. App. 2014) (“[T]his Court will not consider post-trial evidence when deciding whether or not the appellant has carried her burden to establish by a preponderance of the evidence that she would not have been convicted had exculpatory results been obtained through DNA testing.”).9 We have no basis for disregarding that limitation here. We are, of course, bound by the TCCA’s interpretation of Texas law, and no question regarding the constitutionality of this feature of Texas law is now before us.10
Not only does the majority’s redressability analysis take into account evidence that this binding state-law rule excludes, but the majority seems to think it is relevant that “Gutierrez has long maintained that the police coerced him into confessing that he was in Harrison’s home on the night of the murder.” Ante, at 3.
The majority does not see fit to mention that the state courts have definitively rejected Gutierrez’s argument that the confession was coerced, that Texas law would almost certainly bar him from raising the same claim again in a post-conviction proceeding,11 and that the federal habeas statute would likewise bar consideration of the claim.12
* * *
This decision’s only practical effect will be to aid and abet Gutierrez’s efforts to run out the clock on the execution of his sentence. And if the decision is taken seriously as a precedent on Article III standing, it will do serious damage. I therefore dissent.
Notes
1 These statements were not admitted at trial. See Ex parte Gutierrez, 337 S. W. 3d, at 891.
2 After the hearing, the judge initially denied the suppression motion orally, but after Gutierrez appealed, the case was remanded, at the State’s request, for the issuance of written findings. Gutierrez, 2013 WL 12092544, *20–*21. Gutierrez then took a second appeal, and the Texas Court of Criminal Appeals (TCCA) affirmed. Gutierrez v. Stephens, No. 1:09–cv–00022 (Jan. 26, 2009), ECF Doc. 2–2, pp. 2–4; see Gutierrez, 2013 WL 12092544, *21.
3 The majority refers to this provision as “Article 64,” but because the lower courts consistently refer to the provision as “Chapter 64” and the associated motions for DNA testing as “Chapter 64 motions,” I use that terminology here.
4 See Enmund v. Florida, 458 U. S. 782, 797 (1982); Tison v. Arizona, 481 U. S. 137, 157–158 (1987).
5 Reed advanced the theory that the Court adopted. His brief said that “the question here is whether declaratory relief is likely to stop Goertz from relying on the CCA’s unconstitutional interpretation of Article 64 to continue denying DNA testing. The answer is yes.” Reply Brief in Reed v. Goertz, O. T. 2022, No. 21–442, p. 6.
6 The Fifth Circuit’s assessment of the likely effect of the declaratory judgment that Gutierrez sought was borne out when the TCCA affirmed the denial of Gutierrez’s third motion for DNA testing in June 2024—after he had obtained the favorable declaratory judgment in the District Court. See 2 App. 467a–468a.
7 According to the majority, the Fifth Circuit held that “Gutierrez lacked ‘standing to bring this suit,’ ” and it therefore concluded that Gutierrez lacked standing to assert any of the claims he originally brought. See ante, at 10. But just a few paragraphs after the part of the opinion in which the language quoted by the majority appears, the opinion makes it clear that its standing analysis focused on the one claim that was before it. See 93 F. 4th 267, 271 (2024). That claim, the opinion noted, was that “the state violates due process by permitting testing only if the evidence could establish the prisoner would not have been convicted, thereby preventing testing if resulting evidence would be relevant only to the sentence.” Ibid. It then set out respondents’ standing argument: “The defendants allege that Gutierrez has no standing to make that claim.” Ibid. (emphasis added). Thus, the Fifth Circuit’s opinion is best understood as holding only that affirmance of the claim that respondents appealed—that Chapter 64 violates due process by barring defendants from seeking post-conviction DNA testing to establish innocence of the death penalty—would not redress Gutierrez’s injury. And in any event, the redressability inquiry had to be limited in that way because Gutierrez did not cross-appeal the District Court’s rejection of his other claims. Attempting to evade the cross-appeal rule, the majority characterizes this case as one in which an appellee merely wishes to defend a judgment whose “scope” did not reach the entirety of his claim. Ante, at 11, n. 3. But the District Court did not simply fail to award Gutierrez complete relief on the one claim on which he prevailed. Rather, it entered judgment against him on different claims.
8 See Tex. Code Crim. Proc. Ann., Art. 64.03(a)(1)(A)(ii).
9 A similar limitation applies in federal habeas proceedings. See Cullen v. Pinholster, 563 U. S. 170, 181 (2011) (holding that habeas review of a state-court conviction pursuant to 28 U. S. C. §2254(d)(1) “is limited to the record that was before the state court that adjudicated the claim on the merits”).
10 This is so for three reasons. First, if Gutierrez wanted to challenge those parts of the District Court’s judgment, he needed to file a cross-appeal, but he did not do so. See, e.g., Northwest Airlines, Inc. v. County of Kent, 510 U. S. 355, 364 (1994) (collecting cases). Second, the constitutionality of this provision is not within the question on which we granted certiorari. And third, the question was not briefed or argued by the parties.
11 See Tex. Code Crim. Proc. Ann., Art. 11.071, §§5(a)(1)–(a)(3) (Vernon Cum. Supp. 2024) (providing that a defendant can only file a second habeas petition challenging his death sentence if “the current claims and issues have not been and could not have been presented previously,” no rational juror would have found the defendant guilty but for a constitutional violation, or no rational juror would have answered one or more of the special issues in the State’s favor but for a constitutional violation); Ex parte Blue, 230 S. W. 3d 151, 161 (Tex. Crim. App. 2007) (noting that a state habeas applicant can only succeed on his claim under Art. 11.071, §5(a)(3), in the “rare” case when “constitutional error . . . so permeated the State’s evidence relevant to one of the special issues upon which it carries the burden of proof that, absent the error, it is practically inconceivable that any rational juror would actually answer the special issues in a way that mandates the death penalty” (emphasis added)).
12 Because a claim regarding the admissibility of Gutierrez’s confession would constitute an attack on his conviction, it cannot be raised in a suit under §1983. See Heck v. Humphrey, 512 U. S. 477, 486–487 (1994). And any attempt to raise the issue in a federal habeas petition would almost certainly fail. See 28 U. S. C. §§2244(b)(2), 2254(d).
Thank you for reading Von’s Substack. I would love it if you commented! I love hearing from readers, especially critical comments. I would love to start more letter exchanges, so if there’s a subject you’re interested in, get writing and tag me!
Being ‘restacked’ and mentioned in ‘notes’ is very important for lesser-known stacks so… feel free! I’m semi-retired and write as a ministry (and for fun) so you don’t need to feel guilty you aren’t paying for anything, but if you enjoy my writing (even if you dramatically disagree with it), then restack, please! Or mention me in one of your own posts.
If I don’t write you back it is almost certain that I didn’t see it, so please feel free to comment and link to your post. Or if you just think I would be interested in your post!
If you get lost, check out my ‘Table of Contents’ which I try to keep up to date.
Von also writes as ‘Arthur Yeomans’. Under that name he writes children’s, YA, and adult fiction from a Christian perspective. His books are published by Wise Path Books and include the children’s/YA books:
The Bobtails meet the Preacher’s Kid: A Christian historical fiction chapter book about four orphans who go to live with their aunt on a dairy farm.
The Bobtails and the Cousins: The sequel to Preacher’s Kid. The aunt has married, and the cousins come to visit. Meaning town kids dealing with chores and manure and…
The Bobtails go to France: The sequel to cousins. The Bobtails, and Preacher’s Kid, get to take a trip to New York, London, Paris, and a small town in France. To get some cheese.
and
No Ordinary School: A brilliant but socially clueless boy gets recruited for a special school. Where he makes a lot of money, gets a girl, and solves a mystery.
As well as GK Chesterton’s wonderful book, “What’s Wrong with the World”, for which ‘Arthur’ wrote most of the annotations.
Arthur also has a substack, and a website. On the substack you can listen to some of his published books. Free.
Thanks again, God Bless, Soli Deo gloria,
Von