first citing Martinez, 566 U.S. at 14 ; and then citing Trevino, 569 U.S. at 423
How later courts described this case
- first citing Martinez, 566 U.S. at 14 ; and then citing Trevino, 569 U.S. at 423
Written by the judges who cited it.
The opinion
Case: 19-70008 Document: 00517034368 Page: 1 Date Filed: 01/16/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 19-70008
FILED
January 16, 2024
____________
Lyle W. Cayce
Chuong Duong Tong, 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 Southern District of Texas
USDC No. 4:10-CV-2355
______________________________
Before Smith, Higginson, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
Over 26 years ago, petitioner Chuong Duong Tong murdered an off-
duty police officer in Houston, Texas by shooting him at point-blank range
during a robbery. A Texas jury found Tong guilty of capital murder and
sentenced him to death. Tong has since spent decades traversing state and
federal courts, unsuccessfully seeking to overturn that sentence. Tong now
raises three issues on appeal.
First, Tong argues the district court erred by not granting a stay under
Rhines v. Weber, 544 U.S. 269 (2005), to allow him to return to state court to
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No. 19-70008
exhaust a procedurally defaulted ineffective assistance of trial counsel
(“IATC”) claim based on an alleged failure to present mitigating evidence
under Wiggins v. Smith, 539 U.S. 510 (2003). Second, Tong requests a
Certificate of Appealability (“COA”) to appeal the district court’s denial of
that same IATC claim. And third, Tong seeks habeas corpus relief based on
the state trial judge’s purported due process violation arising from its
management of voir dire, a claim for which he previously received a COA.
Addressing each issue in turn, we conclude the district court
committed no error. Accordingly, the district court’s order denying Tong’s
request for a Rhines stay is AFFIRMED. Tong’s motion for an additional
COA on his Wiggins claim is DENIED. The district court’s judgment
denying Tong a writ of habeas corpus on his voir dire claim is AFFIRMED.
I. Facts and Proceedings
A.
The jury heard the following evidence at trial. On April 6, 1997, off-
duty Houston police officer Tony Trinh was working at his parents’
convenience store. Tong approached Trinh with a semi-automatic handgun,
demanding his wallet and jewelry. Trinh showed Tong his police badge and
told Tong he “was not going to get away with this.” Tong then killed Trinh
by shooting him in the head at close range, took Trinh’s jewelry, and fled to
a waiting car. Days later, Tong asked his roommate to sell Trinh’s jewelry.
After Tong’s arrest, he gave police a statement detailing the robbery
and shooting. He also showed police where he disposed of the gun. Tong
claimed he accidentally shot Trinh while jumping over the counter.
During pre-trial detention, a fellow inmate asked Tong how close he
was when he shot Trinh. Tong responded by touching his finger to the
inmate’s forehead and saying “bang.” When asked if he felt bad about killing
2
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No. 19-70008
Trinh, Tong laughed and mockingly said that he felt terrible and cried himself
to sleep. Later, when a police officer was preparing Tong’s restraints for
transport, Tong placed his fingers in the shape of a pistol, pointed them at
the officer’s head, and mouthed the word “bang.” The jury found Tong
guilty of capital murder on alternative theories that he intentionally killed
Trinh, a police officer performing his official duties, or that he intentionally
killed Trinh during a robbery or attempted robbery.
At the penalty phase, the jury heard evidence of Tong’s troubled past,
including numerous disciplinary problems at school, theft, destruction of
property, sexual harassment, and assault. The jury also heard that, about a
month after Trinh’s murder, Tong took part in a bank larceny involving
$400,000. Additionally, the State presented evidence that two days before
the Trinh murder, Tong and an accomplice broke into the home of Vincent
and Hannah Lee. Mrs. Lee was at home that day with her sick toddler. Tong
tied Mrs. Lee up, put a gun to her head, and told her he was going to rob and
kill her. When Mr. Lee came home during the robbery, Tong shot him,
though not fatally, dragged him into the room where Mrs. Lee and the toddler
were, and threatened to kill him. Leaving the house, Tong said he would “kill
all of [them]” and began firing toward the family, while laughing. He hit both
the toddler and Mr. Lee but did not kill them.
The jury also heard mitigation evidence. For instance, it heard about
Tong’s challenges as a result of being abandoned by his father and mother.
Tong and his father moved to Germany, where Tong moved in and out of
foster homes and orphanages. Tong’s father abandoned him in Germany and
moved to the United States. After Tong became a serious disciplinary
problem, his German foster parents sent him to Houston to live with his
father. After being abandoned again by his father in Houston, Tong lived
intermittently with other family members until he was 21.
3
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No. 19-70008
The jury determined it was probable that Tong would commit future
acts of criminal violence posing a continuing threat to society and that the
mitigating evidence did not warrant a life sentence. On March 11, 1998, the
trial court sentenced Tong to death.
B.
On direct appeal, the Texas Court of Criminal Appeals (“TCCA”)
affirmed Tong’s conviction and sentence, rejecting his 18 points of error.
Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000) (en banc), cert. denied,
532 U.S. 1053 (2001). Tong then filed a state habeas petition presenting 12
claims. The petition did not raise an IATC claim under Wiggins based on
trial counsel’s failure to investigate and present mitigating evidence at the
punishment phase. See Wiggins, 539 U.S. 510. In 2009, the TCCA denied
Tong’s habeas application. Ex Parte Tong, 2009 WL 1900372 (Tex. Crim.
App. July 1, 2009) (per curiam).
Tong timely filed a federal habeas petition in 2010. A second amended
petition, filed in 2014, presented, inter alia, (1) a voir dire claim, (2) two Brady
claims, and (3) a Wiggins IATC claim. Tong also requested funding under 18
U.S.C. § 3599 to investigate and develop his Wiggins claim. That claim
argued counsel should have discovered and presented more mitigating
evidence—specifically, evidence of past sexual abuse by family members.
Tong presented such evidence for the first time by attaching to his second
amended petition affidavits from his two cousins, John Tran and Sang Tran.
Although admitting this IATC claim was procedurally defaulted because it
was raised for the first time in federal court, Tong argued he could overcome
the default based on ineffective assistance of state habeas counsel
(“IAHC”).
The district court denied Tong’s habeas petition and funding request.
It ruled that even if Tong’s state habeas counsel was ineffective, Tong was
4
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No. 19-70008
not entitled to habeas relief because he failed to show that trial counsel was
deficient under Strickland v. Washington, 466 U.S. 668 (1984). That was so,
the district court reasoned, because trial counsel “retained professional
investigators, conducted interviews with Tong and members of his family,
and retained appropriate experts to assist in the preparation of Tong’s
mitigation case.”
The district court granted Tong a COA on his voir dire claim but
denied COAs on his Wiggins and Brady claims.
C.
Tong timely appealed and requested from our court additional COAs
on the Wiggins and Brady claims. We denied a COA on the Brady claims but
remanded for the district court to reconsider Tong’s § 3599 funding request
regarding his Wiggins claim under the new test from Ayestas v. Davis, 138 S.
Ct. 1080, 1093 (2018). See Tong v. Lumpkin, 825 F. App’x 181, 186 (5th Cir.
2020). On remand, the district court granted Tong’s funding request. We
then stayed proceedings on Tong’s Wiggins COA application; vacated the
district court’s denial of that application; retained jurisdiction over the
remaining appellate issues; and remanded for factual development of the
Wiggins claim.
The Supreme Court then decided Shinn v. Ramirez, 596 U.S. 366
(2022). Shinn held that Martinez v. Ryan, 566 U.S. 1 (2012), does not permit
federal courts “to dispense with [28 U.S.C.] § 2254(e)(2)’s narrow limits”
on developing the state-court record “because a prisoner’s state
postconviction counsel negligently failed to develop [that] record.” Shinn,
596 U.S. at 371; see also Mullis v. Lumpkin, 70 F.4th 906, 910 (5th Cir. 2023)
(noting Shinn addressed “the use of evidence . . . to assess the defendant’s
underlying merits claim of ineffective assistance of trial counsel”). Because
Tong did not claim to satisfy § 2254(e)(2)’s stringent requirements, the State
5
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No. 19-70008
moved to terminate the remand because the remand’s purpose—developing
Tong’s Wiggins claim—was now foreclosed by Shinn. In response, Tong
asked the district court to grant a stay and abeyance under Rhines to permit
him to exhaust his Wiggins claim in state court. The district court denied the
stay request, entered final judgment in March 2023, and terminated remand
on the grounds argued by the State. Tong timely appealed.
II. Standards of Review
We review the denial of a Rhines stay for abuse of discretion, Young v.
Stephens, 795 F.3d 484, 495 (5th Cir. 2015), which occurs when a court
“bases its decision on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Perez v. Stephens, 745 F.3d 174, 177 (5th Cir.
2014) (citation omitted).
A petitioner may appeal the denial of federal habeas relief only if he
first obtains a COA under 28 U.S.C. § 2253(c)(1). Gonzales v. Davis, 924
F.3d 236, 241 (5th Cir. 2019) (per curiam). 1 To do so, he must make “a
substantial showing of the denial of a constitutional right.” § 2253(c)(2); see
also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). When the petition was
denied on substantive grounds, the petitioner must show “that jurists of
reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327.
When the petition was denied on procedural grounds, the petitioner must
show “that jurists of reason would find it debatable whether the petition
_____________________
1
As noted in our prior opinion, Tong did not request COAs from the district court
on any of his claims. Tong, 825 F. App’x at 184 n.1. We nonetheless have jurisdiction to
consider his COA requests because the district court sua sponte granted and denied COAs
on his voir dire and Wiggins claims, respectively. See ibid. (citing Cardenas v. Thaler, 651
F.3d 442, 443 (5th Cir. 2011)).
6
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No. 19-70008
states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Once a COA has been granted on a habeas claim, we review the
court’s “factual findings for clear error and its legal conclusions de novo.”
Mullis, 70 F.4th at 909. We review mixed questions of law and fact de novo
“by independently applying the law to the facts found by the district court,
as long as the district court’s factual determinations are not clearly
erroneous.” Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir. 2005).
III. Discussion
We address three separate issues. First, Tong argues the district court
erred in denying his motion for a Rhines stay. Second, Tong asks for an
additional COA based on his unexhausted Wiggins claim. Third, Tong
argues he was denied due process by the trial court’s allocation of peremptory
strikes during voir dire.
A. Rhines stay
Tong argues the district court erred by denying a stay to allow him to
exhaust his Wiggins IATC claim in state court. 2 See Rhines, 544 U.S. at 277–
78. Such a stay is granted “only in limited circumstances because staying a
federal habeas petition frustrates” the objectives of the Antiterrorism and
_____________________
2
In connection with this argument, Tong contends he has a constitutional right to
effective assistance of counsel in initial-review collateral proceedings. He is mistaken. The
Supreme Court has long held “there is no right to counsel in state collateral proceedings.”
Coleman v. Thompson, 501 U.S. 722, 755 (1991). More recently, in Shinn, the Court stated
it has “repeatedly reaffirmed that there is no constitutional right to counsel in state
postconviction proceedings.” 596 U.S. at 386; see also, e.g., In re Hensley, 836 F.3d 504, 507
(5th Cir. 2016) (per curiam) (holding Martinez did not establish a new constitutional right
to effective assistance of counsel in collateral proceedings).
7
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No. 19-70008
Effective Death Penalty Act of 1996 (“AEDPA”)—namely, to encourage
“finality and streamlin[e] federal habeas proceedings.” Young, 795 F.3d at
494–95 (cleaned up) (quoting Rhines, 544 U.S. at 277). A district court abuses
its discretion in denying a Rhines stay only if (1) there was good cause for
failing to exhaust the claim in state court, (2) the claim is potentially
meritorious, and (3) “there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278.
The State argues Tong’s Rhines request failed all three prongs.
Agreeing with the State as to the first and second prongs, we need not reach
the third.
1.
Tong argues the “good cause” for not exhausting his Wiggins claim
was his state habeas counsel’s failure to raise it. The Rhines “good cause”
standard, he contends, is more forgiving than the standard for “cause” for
procedural default under Martinez and Trevino v. Thaler (Trevino I), 569 U.S.
413 (2013). In the procedural default context, IAHC can constitute “cause”
for defaulting an IATC claim. Tong contends IAHC should also serve as
“good cause” under Rhines for failing to exhaust his Wiggins claim.
Our precedent forecloses Tong’s argument. In Williams v. Thaler, we
held that IAHC cannot serve as “good cause” for a Rhines stay. 602 F.3d
291, 309 (5th Cir. 2010), abrogated on other grounds by Thomas v. Lumpkin, 995
F.3d 432, 440 (5th Cir. 2021). Tong responds that Williams was abrogated by
Martinez and Trevino I. In Williams, he points out, we tied our Rhines “good
cause” holding to our finding no “cause” for procedural default. It is true
that Martinez and Trevino I overruled our procedural default holding in
Williams by permitting IAHC to serve as “cause.” See Martinez, 566 U.S. at
17; Trevino I, 569 U.S. at 429. But those cases said nothing about what
constitutes “good cause” for failure to exhaust under Rhines. Therefore,
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Williams remains binding in this circuit as to the Rhines standard. We would
violate our rule of orderliness by extending Martinez to Rhines. 3 See United
States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014) (explaining we have
“specifically rejected the idea that later Supreme Court and other decisions
that were not directly on point could alter the binding nature of our prior
precedent”).
2.
Tong next contends his Wiggins claim is potentially meritorious
because it meets an exception to Texas’s bar on second-or-successive habeas
applications. See Rhines, 544 U.S. at 278. Texas courts will not address the
merits of unraised claims that could have been brought on initial habeas. But
this bar does not apply if, “by clear and convincing evidence, but for a
violation of the United States Constitution no rational juror would have
answered in the state’s favor one or more of the special issues that were
submitted to the jury in the applicant’s trial under Article 37.071, 37.0711, or
37.072.” Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a)(3). The
district court ruled that no § 5(a) exception applied to Tong’s case. 4
Tong nonetheless predicts that Texas courts may still consider his
Wiggins claim because it meets the exception in § 5(a)(3) for actual innocence
of the death penalty. According to the TCCA, § 5(a)(3) “more or less”
adopted the Supreme Court’s actual innocence of the death penalty rule in
_____________________
3
Cf. Blake v. Baker, 745 F.3d 977, 983–84 (9th Cir. 2014) (holding “good cause”
showing under Rhines “cannot be any more demanding than” showing “cause” under
Martinez).
4
Tong’s counsel conceded at oral argument the first exception—that the factual
or legal basis for his claim was unavailable on the date of his previous application,
§ 5(a)(1)—is no longer relevant to this case given our decision in Sandoval Mendoza v.
Lumpkin, 81 F.4th 461 (5th Cir. 2023) (per curiam).
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Sawyer v. Whitley, 505 U.S. 333 (1992). Ex parte Blue, 230 S.W.3d 151, 159–
60 (Tex. Crim. App. 2007). Sawyer limited this exception to situations where
alleged constitutional errors only “affect[ed] the applicant’s eligibility for the
death penalty under state statutory law.” Blue, 230 S.W.3d at 161. Tong does
not argue, however, that additional mitigating evidence would have made
him ineligible for the death penalty; he contends only that it would have
influenced the jury’s decision to impose that penalty. So, under Sawyer, Tong
could not avail himself of § 5(a)(3) because he was “unquestionably eligible”
for the death penalty under Texas law. Id. at 160.
It is true, though, that the TCCA has “left open the possibility that a
Wiggins claim might also be cognizable under Section 5(a)(3).” Balentine v.
Thaler, 626 F.3d 842, 856 (5th Cir. 2010). A footnote in the TCCA’s Blue
decision “hesitate[d] to declare that” § 5(a)(3) “wholly codifies” the
doctrine of ineligibility for the death penalty. 230 S.W.3d at 161 n.42. But the
TCCA “express[ed] no ultimate opinion on this question.” Ibid. It is
unclear, then, under Texas law whether a Wiggins claim can satisfy the
§ 5(a)(3) exception. See ibid.
We conclude that the TCCA’s hesitance on this point, as expressed
in the Blue footnote, does not make Tong’s Wiggins claim potentially
meritorious under Rhines. In essence, Tong asks us to find this claim
potentially meritorious to allow the TCCA to revisit its precedent. We
recently held, though, that permitting a state court to revisit its procedural
default precedent is not sufficient grounds for a Rhines stay. See Sandoval
Mendoza, 81 F.4th at 482. In Sandoval Mendoza, a Texas habeas petitioner
argued for the first time in federal court that his trial counsel was ineffective.
Id. at 467. We refused his request for a Rhines stay to exhaust this
procedurally defaulted claim because it was meritless under the second-or-
successive bar. Id. at 482. Although addressing the § 5(a)(1) exception, we
noted that “[t]he opportunity to reconsider state court precedent . . . is not
10
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in itself enough to grant a Rhines stay.” Ibid. Similarly, we cannot approve a
Rhines stay based solely on dicta that “left open the possibility that a Wiggins
claim might also be cognizable under Section 5(a)(3).” Balentine, 626 F.3d at
856. Although Blue’s footnote questioned whether a Wiggins claim could meet
§ 5(a)(3), the TCCA has never held it does. The mere possibility that it
might does not make Tong’s claim potentially meritorious under Rhines.
Furthermore, even after Blue, we have held that a Wiggins claim is
meritless under § 5(a)(3). See Haynes v. Quarterman, 526 F.3d 189, 197 (5th
Cir. 2009). The Haynes petitioner argued that, while unpresented mitigating
evidence would not have made him ineligible for the death penalty, it “could
have influenced the jury’s discretion” to impose it. Ibid. We declined to grant
a Rhines stay because, under Blue, the petitioner had “no meritorious
argument that the [TCCA] would allow him to file a successive application
for post-conviction relief.” Ibid.; cf. Balentine, 626 F.3d at 856 (“We will not
interpret that same perfunctory order as having reached the merits of [the
Wiggins] issue the Texas court at most has identified it might one day
reach.”); Sandoval Mendoza, 81 F.4th at 482 (“The opportunity to
reconsider state court precedent . . . is not in itself enough to grant a Rhines
stay.”). Likewise, Tong does not argue that any mitigating evidence would
have rendered him ineligible for the death penalty, only that it might have
influenced the jury’s decision.
***
In sum, we hold that the district court did not abuse its discretion in
declining to grant a Rhines stay.
B. Wiggins claim
Tong next argues that he should be granted a COA to appeal the
denial of his Wiggins IATC claim. Because no reasonable jurist could debate
11
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No. 19-70008
that there was no cause to excuse this defaulted claim, we deny Tong’s COA
request.
While conceding his Wiggins IATC claim is procedurally defaulted,
Tong argues his state habeas counsel’s ineffectiveness provides cause to
excuse that default. See Martinez, 566 U.S. at 9 (recognizing this “narrow
exception” to usual rule that habeas counsel’s error cannot excuse default);
see also Trevino I, 569 U.S. at 428 (holding the Martinez exception applies to
Texas’s post-conviction system). Accordingly, Tong must show state habeas
counsel’s deficient performance prejudiced him under Strickland v.
Washington, 466 U.S. 668 (1984). See Martinez, 566 U.S. at 14. He must also
show that the underlying IATC claim is “substantial,” meaning it “has
some merit.” Ibid.; Trevino I, 569 U.S. at 423. The district court denied a
COA on this latter ground, ruling that Tong’s IATC claim lacked merit.
Tong’s trial counsel, the court noted, “retained professional investigators,
conducted interviews with Tong and members of his family, and retained
appropriate experts to assist in the preparation of Tong’s mitigation case.”
So, any putative error by state habeas counsel could not excuse the default.
Cf. Trevino v. Davis (Trevino II), 861 F.3d 545, 549 (5th Cir. 2017)
(“assum[ing], without deciding” that state habeas counsel was ineffective
because the underlying Wiggins IATC claim lacked merit).
Tong argues trial counsel should have discovered and presented
mitigating evidence concerning “the continued cycle of abuse,
abandonment, and sexual abuse that Tong suffered in the decade after he
came to the United States as a child.” He contends counsel failed to follow
the TCCA’s admonition that reasonable counsel in capital cases should
inquire into possible childhood abuse, and not rely solely on the defendant’s
own account. Although Tong gave no indication of sexual abuse in his
biographical history to counsel, he now argues that a reasonable mitigation
investigation would have uncovered the abuse. Trial counsel was inadequate,
12
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No. 19-70008
he argues, by interviewing only a few family members; by putting on a
mitigation case at trial that lasted only half a day; and by requesting
investigation funding only shortly before trial.
The State maintains trial counsel’s mitigation investigation did not
fall below professional standards. It highlights that counsel employed two
investigators, who logged over a hundred hours in mitigation investigation,
interviewing Tong, relatives, and acquaintances on numerous occasions.
Counsel also had a complete report of Tong’s educational history,
neuropsychologic evaluation, and evaluation from a mitigation expert on the
Vietnamese immigrant experience. Counsel then tactically decided which
testimony to present based on whether it would support or hinder Tong’s
mitigation case.
We agree with the district court that Tong’s IATC claim lacks merit.
At a minimum, the claim fails because Tong has not shown he was prejudiced
by counsel’s allegedly inadequate mitigation investigation. See Strickland,
466 U.S. at 700 (“Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim.”).
Tong must show that, “under Texas’s capital sentencing statute, the
additional mitigating evidence is so compelling that there is a reasonable
probability that at least one juror could have determined that because of the
defendant’s reduced moral culpability, death is not an appropriate
sentence.” Canales v. Davis, 966 F.3d 409, 412 (5th Cir. 2020) (cleaned up)
(quoting Kunkle v. Dretke, 352 F.3d 980, 991 (5th Cir. 2003)). The likelihood
of a different result must be substantial, not just conceivable. Ibid. (quoting
Harrington v. Richter, 562 U.S. 86, 112 (2011)). To assess prejudice, “we
reweigh the evidence in aggravation against the totality of available mitigating
evidence.” Ibid. (quoting Wiggins, 539 U.S. at 534).
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No. 19-70008
To show prejudice, Tong relies entirely on 2014 affidavits submitted
by his cousins, John and Sang, describing sexual abuse. These affidavits are
the only evidence that Tong was sexually abused as a child. We cannot
consider them, however, because they are not part of the state-court record.
The Supreme Court held in Shinn that, under 28 U.S.C. § 2254(e)(2), “a
prisoner is ‘at fault’” for failing to develop the state-court record, “even
when state postconviction counsel is negligent.” Shinn, 596 U.S. at 384. 5 We
can expand the state-court record only if the petitioner satisfies
§ 2254(e)(2)’s stringent requirements. Ibid. Tong does not contend he meets
any of those requirements, so we cannot consider his cousins’ affidavits, or
any evidence of sexual abuse contained therein. See ibid.
Accordingly, there can be no conceivable, let alone substantial,
likelihood that a juror would have changed his mind with respect to Tong’s
capital sentence. Cf. Canales, 966 F.3d at 412. Without any additional
mitigation evidence to tip the scales, we have nothing new to “reweigh.”
Ibid. 6 The district court was therefore correct that Tong’s underlying
Wiggins IATC claim was insubstantial, regardless of any deficient
_____________________
5
In Mullis, we explained that Shinn bars a petitioner from using “evidence
developed in a Martinez hearing to assess the [petitioner’s] underlying merits claim of
[IATC].” Mullis, 70 F.4th at 910. In other words, a petitioner cannot factually develop an
IAHC claim that is “little more than a Hail Mary pass to get evidence admitted as to the
merits of an IATC claim.” Ibid. That is precisely what Tong tries do here. He admits that
he “only raises the ineffectiveness of his state post-conviction counsel as means to permit
merits review of [his Wiggins IATC claim].” Shinn forecloses that attempt.
6
Furthermore, even if there were additional mitigating evidence to consider, we
would have to reweigh it against the extraordinary aggravating evidence presented to the
jury about Tong’s continued dangerousness. Most importantly, the jury heard that only
two days before he murdered Trinh, Tong remorselessly shot a sick toddler and a father
after breaking into a home and holding the mother at gunpoint.
14
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No. 19-70008
performance by his state habeas counsel. As a result, no reasonable jurist
could debate that there was no cause justifying the procedural default.
In sum, we deny Tong’s request for a COA on this claim.
C. Voir dire claim
Finally, we address Tong’s claim that the state court voir dire violated
his right to due process. Tong was granted a COA on this claim. We hold the
claim is procedurally defaulted and Tong has shown no cause to excuse the
default.
1.
At the beginning of jury selection, the trial judge informed defense
counsel that Tong was allowed unlimited peremptory strikes. This decision
contravened Texas law, which permits only 15 peremptory strikes. See Tex.
Code Crim. P. art. 35.15(a). After Tong used 25 peremptory strikes and
10 jurors were seated, the State objected and the judge changed course. It
announced that Tong had used all available peremptory challenges and, going
forward, would have to challenge potential jurors for cause. The judge
overruled defense counsel’s objection to this change in procedure. Tong
wanted to use a peremptory strike on the eleventh juror—Venireperson
Sullivan—but the judge ruled Tong was out of peremptory strikes. Tong
admits there were no grounds to strike Sullivan for cause.
Tong now contends that the trial court’s change in voir dire procedure
denied him due process under the Fourteenth Amendment. He raised this
voir dire claim on direct appeal at the TCCA, which rejected the claim as
inadequately briefed under Texas Rule of Appellate Procedure 38.1(h). Tong,
25 S.W.3d at 710.
We cannot review a habeas claim if the last state court to consider it
“expressly relied on a state ground for denial of relief that is both independent
15
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of the merits of the federal claim and an adequate basis for the court’s
decision.” Roberts v. Thaler, 681 F.3d 597, 604 (5th Cir. 2012) (citation
omitted). If the state court relied on a procedural rule to deny relief, the rule
must be “firmly established and regularly followed.” Id. at 604–05 (internal
quotation marks and citation omitted). We have held that “Texas’s rule
regarding inadequate briefing in the capital context constitutes a valid
procedural bar to federal habeas relief.” Id. at 607. 7 That rule has been
“regularly followed by [Texas] courts, and applied to the majority of similar
claims.” Ibid. (alteration adopted) (citation omitted). Therefore, Tong’s voir
dire claim is procedurally defaulted.
Tong, however, argues the default is excused by his state appellate
counsel’s deficient performance on direct appeal. See id. at 605 (petitioner
may overcome independent-and-adequate-state-ground default by showing
cause and prejudice) (citations omitted). The Supreme Court acknowledges
that ineffective assistance of appellate counsel (“IAAC”) for failing
properly to preserve a constitutional claim for review in state court can
provide cause to excuse procedural default. See, e.g., Murray v. Carrier, 477
U.S. 478, 488–89 (1986). Appellate counsel’s performance, however, “must
have been so ineffective as to violate the Federal Constitution”—that is, it
violated the petitioner’s right to effective assistance of counsel. Edwards v.
Carpenter, 529 U.S. 446, 451 (2000) (citing Carrier, 477 U.S. at 488–89). 8
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7
Tong admits Roberts controls on this point but “assert[s] this holding is
incorrect” for preservation purposes.
8
Additionally, a claim of IAAC must first “be presented to the state courts as an
independent claim before it may be used to establish cause for a procedural default.”
Carrier, 477 U.S. at 489. Tong did so by bringing the IAAC claim before the TCCA in his
state habeas petition. Seeing no constitutional error in the trial court’s voir dire ruling, the
TCCA ruled that appellate counsel was not ineffective for failing to adequately brief this
issue. Tong does not, however, independently appeal the denial of his IAAC claim. He
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2.
We must determine, then, whether Tong’s state appellate counsel
performed deficiently and whether the deficiency prejudiced his defense. See
Coleman, 501 U.S. at 752 (citing Strickland, 466 U.S. at 690); Moore v.
Vannoy, 968 F.3d 482, 488 (5th Cir. 2020). In other words, Tong must show
“a reasonable probability that, but for” appellate counsel’s inadequate
briefing, “the result of [his appeal] would have been different.” Strickland,
466 U.S. at 694.
The TCCA denied habeas relief on his IAAC claim because Tong
did not “demonstrate that any of the jurors who served during his capital
murder trial were not qualified” or could be “subject to a challenge for
cause.” Moreover, Tong failed “to show that the trial court erred in its voir
dire process or that the voir dire process harmed the applicant.” Tong argues,
to the contrary, that he showed prejudice because an adequately briefed voir
dire claim would have been a “dead-bang” winner on appeal.
We disagree. Criminal defendants have the right to trial by an
impartial and competent jury, a right protected by the voir dire process. See
U.S. Const. amend. VI; Peña-Rodriguez v. Colorado, 580 U.S. 206, 220
(2017). It is the trial judge’s province to conduct jury selection and seat an
impartial jury. Skilling v. United States, 561 U.S. 358, 386 (2010). Because
peremptory challenges “are not required by the Constitution,” it is “for the
State to determine the number of peremptory challenges allowed and to
define their purpose and the manner of their exercise.” Ross v. Oklahoma, 487
U.S. 81, 89 (1988). Absent a showing of juror bias, there is no federal
constitutional concern regarding deprivation of peremptory challenges. See
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instead addresses IAAC simply as a means to address the merits of his underlying voir dire
claim. We therefore do not address the TCCA’s ruling on his independent IAAC claim.
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Rivera v. Illinois, 556 U.S. 148, 157 (2009). “[T]he mistaken denial of a state-
provided peremptory challenge does not, without more, violate the Federal
Constitution.” Id. at 158. The Due Process Clause is concerned only with
“the fundamental elements of fairness in a criminal trial,” not “meticulous
observance of state procedural prescriptions.” Ibid. (citation omitted).
Tong fails to show that the voir dire in his state trial implicated any due
process concerns. The Supreme Court’s decisions in Rivera and Skilling
show why this is so. In Rivera, even where the trial court seated a juror over
the defendant’s peremptory challenge—a decision which “was at odds with
state law”—there was no constitutional violation because the defendant
could not point to a single “biased juror” who sat. Id. at 159–60 (citation
omitted). The Court stated: “If a defendant is tried before a qualified jury
composed of individuals not challengeable for cause, the loss of a peremptory
challenge due to a state court’s good-faith error is not a matter of federal
constitutional concern.” Id. at 157. Similarly, in Skilling, the defendant
complained that he would have struck six more jurors “had he not already
exhausted his peremptory challenges” provided by the trial court. 561 U.S.
at 397. The Supreme Court found no grounds to reverse the guilty verdict
because the defendant could not “establish that a presumption of prejudice
arose or that actual bias infected the jury that tried him.” Id. at 398.
Tong cannot overcome these precedents. He feebly argues that he was
prejudiced because one cannot know how voir dire would have played out had
the judge followed Texas’s rules on peremptory strikes. That is pure
speculation. Tong, moreover, ignores that the judge’s error benefited him by
giving him 10 extra peremptory strikes.
More importantly, Tong fails to identify any biased juror seated as a
result of the change in procedure. See Skilling, 561 U.S. at 398. The only juror
on whom he wanted to use a peremptory strike—Sullivan—was by Tong’s
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own admission neither biased nor subject to for-cause challenge. He argues
only that defense counsel was concerned with some of her “troubling” voir
dire responses. But he fails to explain why such concerns rise to the level of a
due process violation.
In sum, Tong fails to show that, even if his voir dire claim had been
properly briefed, the TCCA would likely have ruled in his favor on direct
appeal. See Strickland, 466 U.S. at 694; Moore, 968 F.3d at 489–90. As a
result, Tong cannot show cause to excuse the procedural default of that
claim. 9
IV. Conclusion
The district court’s order denying Tong’s request for a Rhines stay is
AFFIRMED. Tong’s motion for an additional COA on his Wiggins claim
is DENIED. The district court’s judgment denying Tong a writ of habeas
corpus on his voir dire claim is AFFIRMED.
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9
Tong also tries a last-ditch argument that his sentence should be vacated because
the trial court’s voir dire ruling was a structural error. We need not address this argument
because, even assuming structural error (which we do not decide), Tong must still show
cause to excuse his procedural default, which he fails to do. See, e.g., McCoy v. United States,
815 F.3d 292, 295–96 (7th Cir. 2016) (requiring § 2255 petitioner to demonstrate cause and
prejudice to excuse procedural default of a claim of structural error); Jones v. Bell, 801 F.3d
556, 563 (6th Cir. 2015) (“Habeas petitioners must additionally show ‘actual prejudice’ to
excuse their default—even if the error that served as the ‘cause’ is a structural one that
would require a new trial.”); Hatcher v. Hopkins, 256 F.3d 761, 764 (8th Cir. 2001) (“The
Supreme Court has recently detailed the circumstances necessary to bypass a state-law
procedural default in a § 2254 petition, and ‘structural error’ is not listed among them.”
(citing Coleman, 501 U.S. at 750)).
19