Petition for Writ of Certiorari — Ruben Gutierrez, Petitioner v. Luis V. Saenz, et al.
Supreme Court briefJun 15, 2020
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OCTOBER TERM 2019
No. _____
_______________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________________________
RUBEN GUTIERREZ,
Petitioner,
v.
BRYAN COLLIER, Executive Director, Texas Department of Criminal Justice;
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional
Institutions Division; BILLY LEWIS, Warden, Texas Department of Criminal Justice,
Huntsville Unit,
Respondents.
______________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
______________________________
APPENDIX TO PETITION FOR A WRIT OF CERTIORARI
______________________________
--- CAPITAL CASE --EXECUTION SCHEDULED FOR AFTER
7:00 P.M. EASTERN TIME, TUESDAY, JUNE 16, 2020
Matthew C. Lawry*
Peter Walker
Assistant Federal Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
(215) 928-0520
matthew_lawry@fd.org
*Counsel of Record for Petitioner
Member of the Bar of the Supreme Court
Counsel for Petitioner, Ruben Gutierrez
Richard W. Rogers, III
3636 S. Alameda St., Ste. B,
#191
Corpus Christi, TX 78411
(361) 779-5281
rwrogersiii@aol.com
Index to Appendix
Appendix A - Panel Order of the United States Court of Appeals for the
Fifth Circuit Granting Defendants’ Motion to Vacate Stay of Execution
(June 12, 2020) .................................................................................................. A1
Appendix B – Memorandum and Order of the United States District Court for
the Southern District of Texas Granting in Part and Denying in Part
Defendants’ Motion to Dismiss Amended Complaint (June 2, 2020) ............. A9
Appendix C - Order of the United States District Court for the Southern
District of Texas Granting Plaintiff’s Motion to Stay Execution (June 9,
2020) ................................................................................................................ A40
Appendix D - 42 U.S.C. §§ 2000cc-2000cc-5, Religious Land Use and
Institutionalized Persons Act (Sept. 22, 2000) .............................................. A43
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 20-70009
United States Court of Appeals
Fifth Circuit
FILED
June 12, 2020
Lyle W. Cayce
Clerk
RUBEN GUTIERREZ,
Plaintiff - Appellee
v.
LUIS V. SAENZ; FELIX SAUCEDA, Chief, Brownsville Police Department;
BRYAN COLLIER, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE; LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION;
BILLY LEWIS, Warden, Texas Department of Criminal Justice, Huntsville
Unit,
Defendants - Appellants
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:19-CV-185
Before SOUTHWICK, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
On June 9, 2020, the district court granted Texas inmate Ruben
Gutierrez’s stay of execution.
The Texas Attorney General’s Office has
* Pursuant to 5TH CIR. R. 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
CIR. R. 47.5.4.
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appealed and moves this court to vacate the stay so that Gutierrez may be
executed as scheduled on June 16, 2020. The State’s motion is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
In 1999, Gutierrez was convicted of the murder of Escolastica Harrison
and was sentenced to death. Details of the offense are set out in Gutierrez v.
Stephens, 590 F. App’x 371, 373 (5th Cir. 2014). Important for one of our issues
is that there was evidence that Gutierrez was one of two men inside the
decedent’s home when she was murdered, and Gutierrez could be found guilty
of capital murder even if he was only an accomplice. Id. at 373. Gutierrez’s
conviction was affirmed on direct appeal. Gutierrez v. State, No. AP-73,462
(Tex. Crim. App. Jan. 16, 2002) (not designated for publication). The Court of
Criminal Appeals’ most recent denial of post-conviction relief was on June 12,
2020, when it rejected an application to file a second subsequent writ
application and also denied a stay of execution. Ex parte Gutierrez, No. WR59,552-05 (Tex. Crim. App. June 12, 2020) (not designated for publication).
On September 26, 2019, Gutierrez filed a complaint under 42 U.S.C.
§ 1983, in the United States District Court for the Southern District of Texas.
He sought DNA testing of certain evidence. The operative amended complaint
was filed on April 22, 2020. He challenged the constitutionality of Chapter 64
of the Texas Code of Criminal Procedure, and of the protocols under which it
was applied. He also sought to override the Texas Department of Criminal
Justice’s policy refusing to allow chaplains to accompany inmates into the
execution chamber itself. The State filed a motion to dismiss, which was
granted only in part. That court later entered a stay of execution. The State
appealed.
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DISCUSSION
In granting the stay, the district court concluded that Gutierrez made a
showing of likelihood of success on the merits “of at least one of his DNA or
[chaplain] claims.” We review a district court’s grant of a stay of execution for
abuse of discretion. Sepulvado v. Jindal, 729 F.3d 413, 420 (5th Cir. 2013).
When deciding whether to stay an execution, the district court is to
consider four factors: “(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Green v. Thaler, 699 F.3d 404, 411 (5th Cir.
2012) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). The first two factors
are the most significant for deciding a stay. Nken, 556 U.S. at 434.
On appeal, the State argues the district court abused its discretion in
granting a stay because Gutierrez’s DNA claims are time-barred and meritless
and Gutierrez’s chaplain claims are meritless.
I.
DNA claims
The parties dispute whether Gutierrez’s DNA claims are timely. We
need not answer that question because of our conclusion that the DNA claims
are unlikely to succeed on the merits.
There is no constitutional right for a convicted person to obtain evidence
for postconviction DNA testing, but a right to obtain DNA testing may be
created by state law. District Attorney’s Office for the Third Judicial Dist. v.
Osborne, 557 U.S. 52, 67–73 (2009). Because Texas has created such a right,
its procedures for a convicted defendant to obtain this right must satisfy due
process. Id. at 72–74.
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Texas’s procedure for inmates to obtain DNA testing includes a
requirement that they show by a preponderance of the evidence that they
would not have been convicted if exculpatory results had been obtained
through DNA testing. TEX. CODE CRIM. P. ch. 64.03(a)(2)(A). Gutierrez argues
Chapter 64 is facially violative of due process. According to Gutierrez, this
preponderance-of-the-evidence standard is “unusually and unreasonably
high.” He argues the materiality standard should be lower. Although the
Court in Osborne did not resolve the appropriate materiality standard, it did
approve of Alaska’s postconviction procedures, as applied to DNA testing,
requiring that defendants seeking access to DNA evidence must show the
evidence is “sufficiently material.” Osborne, 557 U.S. at 70. States use varying
materiality standards. We see no constitutionally relevant distinction between
what was approved in Osborne — sufficiently material — and requiring an
inmate to show materiality by a preponderance of the evidence.
Gutierrez further argues that Chapter 64 is fundamentally unfair as
applied by the Court of Criminal Appeals. According to Gutierrez, that court
interprets Chapter 64 to preclude DNA testing if the proposed testing would
simply “muddy the waters.” Gutierrez contends this interpretation heightens
the fundamental unfairness of the statutory standard itself. Yet the Supreme
Court allowed denial of DNA testing unless the results were likely to be
“conclusive.” Id. at 65, 70.
The problem for Gutierrez is that he was convicted without jurors
needing to decide whether he was the actual murderer or an accomplice. He
confessed to being inside the home. The jury was permitted to find Gutierrez
guilty “of capital murder if, among other things, it found that appellant ‘acting
alone or as a party’ with the accomplice intentionally caused the victim’s
death.” Gutierrez, 590 F. App’x at 374. A search for DNA on the victim’s
clothing and elsewhere would not reasonably lead to evidence that would
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exclude Gutierrez as an accomplice. In his briefing before this court, he wholly
failed to show how the DNA testing he requests would be “sufficiently
material” to negate his guilt thus justifying the pursuit of DNA testing at this
late date. Therefore, because Gutierrez has not shown by a preponderance of
the evidence that he would not have been convicted if exculpatory results were
obtained, he cannot prevail.
Gutierrez failed to show that the Court of Criminal Appeals’ application
of Chapter 64 as to him was fundamentally unfair. We conclude that Chapter
64 both facially and as applied by the Court of Criminal Appeals comports with
the Supreme Court’s decision in Osborne. Consequently, this claim is likely to
fail on the merits and cannot justify a stay of execution.
II.
Chaplain claims
Gutierrez challenges the TDCJ’s policy disallowing chaplains and
spiritual advisors in the execution room itself. The policy, revised in 2019,
provides that on the day of execution the death row inmate may visit with a
TDCJ chaplain and a minister or spiritual advisor “who has the appropriate
credentials,” but chaplains and spiritual advisors are not permitted in the
execution chamber. As part of the 2019 revised execution policy, “[o]nly TDCJ
security personnel shall be permitted in the execution chamber.” According to
Gutierrez, this policy violates his rights under the Establishment Clause, the
Free Exercise Clause, and the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”). We will follow that order in our analysis.
A.
Establishment Clause claim
In his complaint, Gutierrez argues TDCJ’s execution policy prohibiting
a chaplain from being present in the execution chamber violates the
Establishment Clause because it is not neutral between religion and nonreligion and inhibits the practice of religious beliefs.
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The parties do not on agree as to which constitutional standard is
applicable.
Gutierrez argues this policy should be reviewed under strict
scrutiny. The State argues we should apply a test of reasonableness derived
from Turner v. Safley, 482 U.S. 78 (1987). In Turner, the Supreme Court held
that “when a prison regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological
interests.” Turner, 482 U.S. at 89. The regulations reviewed by the Turner
Court included restrictions on inmate-to-inmate mail and inmates’ right to
marry. Id. at 81. We conclude Turner applies.
Under Turner, we consider:
(1) whether a “valid, rational connection [exists] between the
prison regulation and the legitimate governmental interest put
forward to justify it,” (2) whether there exist “alternative means of
exercising the fundamental right that remain open to prison
inmates,” (3) what “impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally,” and (4) whether there
is an “absence of ready alternatives” to the regulation in question.
Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (quoting Turner, 482 U.S.
at 89–90). Gutierrez fails to make a strong showing of a likelihood of success
in establishing that TDCJ’s execution policy is not “reasonably related to
legitimate penological interests.” Turner, 482 U.S. at 89.
B.
Free Exercise Clause claim
Gutierrez’s claim that TDCJ’s execution policy violates the Free Exercise
Clause is largely a recitation of his Establishment Clause claim.
Again,
Gutierrez argues TDCJ’s policy cannot survive strict scrutiny.
Circuit
precedent, as the district court agreed in this case, requires application of
Turner to a Free Exercise claim. See Brown, 929 F.3d at 232–42. We have
identified the factors in our discussion of the Establishment Clause, and they
similarly prevent success for Gutierrez’s Free Exercise claim.
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Among Gutierrez’s arguments is that the prior policy, which would
satisfy his interest, allowed only Christian or Muslim spiritual advisors into
the execution chamber. See Murphy v. Collier, 139 S. Ct. 1475 (2019). There
was a suggestion by one justice that what would end the Equal Protection claim
would be to prohibit any ministers or religious advisors into the execution
chamber itself but permit all to be in the viewing room.
Id. at 1475–76
(Kavanaugh, J., concurring to grant of a stay). The TDCJ decided to take that
advice.
One justice’s views are not precedent, but we conclude that the
concurring opinion made a valid appraisal of the issue. Gutierrez is unlikely
to establish that TDCJ’s execution policy is not “reasonably related to
legitimate penological interests.” Turner, 482 U.S. at 89.
Having denied the legal argument, we acknowledge the strong religious
arguments made by Gutierrez and also in an amicus brief from the Texas
Catholic Conference of Bishops. We can apply only the legal standards and
have concluded that what the State has done here satisfies those.
C.
RLUIPA claim
The RLUIPA provides that the government shall not “impose a
substantial burden” on an inmate’s religious exercise, unless the government
demonstrates that imposition of the burden on that person “(1) is in
furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest.” 42
U.S.C. § 2000cc-1(a). Gutierrez bears the burden of demonstrating the policy
imposes a “substantial burden” on his religious exercise. Adkins, 393 F.3d at
567.
Gutierrez argues that TDCJ’s policy disallowing chaplains and spiritual
advisors in the execution chambers is a substantial burden on his religious
exercise because the policy prohibits him from receiving a Christian chaplain’s
guidance just before death. Yet Gutierrez has failed to show that this policy
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“creates a ‘substantial burden’ on a religious exercise [that] truly pressures the
adherent to significantly modify his religious behavior and significantly violate
his religious beliefs.” Id. at 570. Perhaps Gutierrez is being denied the final
measure of spiritual comfort that might be available. As important as that is,
government action does not rise to the level of a substantial burden on religious
exercise if it merely prevents the adherent from enjoying some benefit that is
not otherwise generally available. Id.
We conclude that Gutierrez does not have a reasonable likelihood of
success on any of his First Amendment claims or under RLUIPA.
III.
Remaining stay factors
Because Gutierrez fails to show likelihood of success on the merits as to
his DNA and chaplain claims, he fails to satisfy the first factor warranting a
stay of execution. As to the second factor, the possibility of irreparable injury
in a capital case weighs heavily in the movant’s favor. O’Bryan v. Estelle, 691
F.2d 706, 708 (5th Cir. 1982). Nevertheless, there comes a time when the legal
issues “have been sufficiently litigated and relitigated so that the law must be
allowed to run its course.” Id. Given the extent of Gutierrez’s litigation and
re-litigation of claims in both state and federal court, we conclude he has not
made a showing of irreparable injury. Because the first two, and most critical
factors do not weigh in Gutierrez’s favor, and neither do the remaining two, we
conclude the district court abused its discretion in granting Gutierrez’s motion
to stay his execution.
The motion to vacate the stay of execution is GRANTED.
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United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
RUBEN GUTIERREZ,
June 02, 2020
David J. Bradley, Clerk
§
§
§
§ CIVIL NO. 1:19-CV-00185
§
§
§
§
Plaintiff,
VS.
LUIS V SAENZ, et al,
Defendants.
MEMORANDUM AND ORDER
The Court is in receipt of Defendant’s Motion to Dismiss for Lack of Subject
Matter Jurisdiction and Failure to State a Claim Upon which Relief can be Granted,
Dkt. No. 46. The Court is also in receipt of Plaintiff Ruben Gutierrez’s (Gutierrez’s)
Response in Opposition to the Motion to Dismiss and Motion for Stay of Execution,
Dkt. No. 47. This memorandum is divided into two parts, one considering the
motion to dismiss the DNA claims the other considering the motion to dismiss the
execution-chamber claims.
For the reasons stated below the Court GRANTS IN PART and DENIES IN
PART Defendants’ Motion to dismiss, Dkt. No. 46. The Court does not address the
motion to stay execution in this Memorandum and Order and will consider that
motion in a separate order.
I.
Jurisdiction
This action arises under 42 U.S.C. § 1983. This Court has jurisdiction under 28
U.S.C. §§ 1331, 1343. Additionally, the Supreme Court determined in Skinner v.
Switzer that a § 1983 action is the proper vehicle for a suit challenging a state DNA
testing statute. Skinner v. Switzer, 562 U.S. 521, 534 (2011).
II.
Background
Gutierrez is incarcerated at the Allan B. Polunsky Unit of the Texas Department
of Criminal Justice (“TDCJ”) in Livingston, Texas. Dkt. No. 45 at 4-5. Pursuant to
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February 28, 2020 Order Setting Execution Date he is scheduled to be executed on
June 16, 2020 after 6:00 p.m. Id. Gutierrez was indicted along with Rene Garcia
and Pedro Garcia for the robbery and murder of Escolastica Harrison (“Ms.
Harrison”). Id. at 6. Pedro Garcia was released on bond and absconded. Id. Rene
Garcia pleaded guilty and was sentenced to life imprisonment. Id. Gutierrez
pleaded not guilty, was tried by a jury, convicted, and sentenced to death in 1999.
Id. at 7. In this suit, Gutierrez has named as Defendants Luis V. Saenz (“Saenz”),
District Attorney for the 107th Judicial District; Felix Sauceda, Jr. (“Sauceda”),
Chief of the Brownsville Police Department; Bryan Collier (Collier”), Executive
Director of the TDCJ; Lorie Davis (“Davis”), director of the Correctional Institutions
Division of the TDCJ and Billy Lewis (“Lewis”), the senior warden of the Huntsville
Unit where inmates are executed. Dkt. No. 45.
On August 27, 2010, Judge Benjamin Euresti, Jr., the presiding judge of the
107th District Court, denied Gutierrez DNA testing under Chapter 64 of the Texas
Code of Criminal Conduct and Procedure (“Chapter 64”). Dkt. No. 45 at 9; Tex.
Crim. Proc. Code art. 64. The Texas Court of Criminal Appeals (“CCA”) affirmed a
denial of testing on the merits in 2011. Dkt. No. 45 at 9; Ex parte Gutierrez, 337
S.W.3d 883, 886 (Tex. Crim. App. 2011). On June 14, 2019, Gutierrez again sought
DNA testing under a revised version of the statute. Dkt. No. 45 at 12-13. Judge
Euresti granted the request on June 20, 2019 and his order was filed at 9:09 a.m.
On June 27, 2019, two events occurred: at 11:10 a.m. Judge Euresti withdrew his
order granting testing and at 11:13 a.m. he denied the motion for testing. Dkt. Nos.
1-1 at 3-5; 45 at 13; Ex parte Gutierrez, No. 98-CR-1391- A, Order (Tex. 107th
Judicial Dist. Ct. June 20, 2019).1 The CCA affirmed the 2019 denial of testing on
the merits in 2020. Dkt. No. 45 at 13; Gutierrez v. State, No. AP-77,089, 2020 WL
918669, at *1 (Tex. Crim. App. Feb. 26, 2020).
1
The Court takes judicial notice of the proceedings in Ex Parte Ruben Gutierrez, 98-CR-1391-A (Tex. 107th
Judicial Dist. Ct.).
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A. Complaint
This action arises under 42 U.S.C. § 1983 and challenges the constitutionality of
Chapter 64. Dkt. No. 45 at 3; Tex. Crim. Proc. Code art. 64. Gutierrez challenges
the constitutionality of post-conviction DNA testing section on its face and as it has
been applied to him. Id. He claims the statute violates procedural due process
because it denies a movant the ability to test evidence that would demonstrate he is
innocent of the death penalty and it is unequally and unfairly applied to someone
who is convicted under the law of parties. He also claims its different outcome
standard is overbroad. Dkt. No. 45 at 25-26.
Gutierrez also claims a violation of his First Amendment right to access the
courts, and his Eighth Amendment right to be free from cruel and unusual
punishment. Id. at 31. He seeks a declaratory judgment holding Chapter 64
unconstitutional. Id. at 37.
Gutierrez challenges the State’s refusal to release biological evidence for testing
and requests an order declaring that the withholding of evidence for testing violates
his rights and requests a preliminary and permanent injunction requiring the
evidence be released for testing. Id. at 38. Gutierrez seeks testing of:
blood sample taken from Ms. Harrison and retained by the Texas DPS
McAllen Laboratory, pending pick up by the District Attorney;
nightgown belonging to Ms. Harrison that may have touch DNA from her
assailant(s);
shirt belonging to Ms. Harrison’s nephew and housemate, Avel Cuellar,
containing apparent blood stains; retained by the Texas DPS McAllen
Laboratory pending pick up by the District Attorney;
nail scrapings in which “[a]pparent blood was detected” were taken from
Ms. Harrison during autopsy and submitted to Det. Hernandez as part of
rape examination kit;
blood samples collected from a bathroom, from a raincoat located in or
just outside Avel Cuellar’s bedroom, and from the sofa in the front room
of Ms. Harrison’s house; and
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a single loose hair found around the third digit of the victim’s left hand
recovered during autopsy and submitted to Det. Hernandez as part of
rape examination kit.
Dkt. No. 45 at 17-18.
Gutierrez claims he will be executed under conditions that violate the First
Amendment’s Free Exercise and Establishment Clauses and that substantially
burden the exercise of his religious beliefs protected by the Religions Land Use and
Institutionalized Persons Act (“RLUIPA”) of 2000, 42 U.S.C. § 2000cc et seq. Id. at
15. He claims relief is necessary to ensure he is executed in way that does not
unfairly burden the exercise of his religious beliefs. Id. at 4.
Gutierrez requested a TDCJ-employed chaplain to accompany him during his
final moments in the execution chamber. His request was denied based on the
TDCJ execution procedure adopted on April 2, 2019, which prohibits all religious or
spiritual advisors from entering the execution chamber. That TDCJ policy now
states: “TDCJ Chaplains and Ministers/Spiritual Advisors designated by the
offender may observe the execution only from the witness rooms.” Facing an
execution date, Gutierrez filed this lawsuit requesting “a reasonable accommodation
to have a Christian chaplain in the execution chamber when he is executed . . . .”
Dkt. No. 45 at 3.
Gutierrez maintains “having a Christian chaplain present in the chamber would
help to ensure his path to the afterlife.” Dkt. No. 45 at 14. Gutierrez alleges that
TDCJ previously had a policy which “allowed a TDCJ-approved chaplain to be
present inside the execution chamber at the time of execution, and that both TDCJ
Chaplains J. Guy and Wayne Moss have indicated that they are willing to be
present in the chamber at his execution (but for TDCJ’s April 2019 Execution
Procedure).” Dkt. No. 45 at 14. Gutierrez argues that TDCJ’s new execution protocol
violates (1) the First Amendment’s Establishment Clause because it is not neutral
between religions (claim four); (2) his Free Exercise rights by interfering with his
ability to practice his religion (claim five); and (3) the Religious Land Use and
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Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”) (claim six). 2
Gutierrez requests a declaratory judgment that TDCJ’s current policy violates the
First Amendment and RLUIPA.
Gutierrez also requests a preliminary and permanent injunction prohibiting his
execution until it can proceed in a manner that does not violate his rights.
III.
Motion to Dismiss
Defendants filed a motion to dismiss for lack of subject matter jurisdiction and
failure to state a claim on which relief can be granted. Dkt. No. 46; See Fed. R. Civ.
P. 12. Defendants argue in their motion that:
Gutierrez is requesting mandamus relief for DNA testing, something it
does not have jurisdiction to order. Id. at 17.
Gutierrez’s complaint is also a collateral attack on a state court decision
rather than the Texas DNA testing statute and that the claims fail under
the Rooker-Feldman doctrine for lack of jurisdiction. Id. at 30.
They are entitled to Eleventh Amendment immunity to the extent
Gutierrez seeks anything beyond declaratory and injunctive relief. Id. at
26.
The DNA testing claim is untimely. Id. at 33.
Gutierrez’s due process claims are barred by issue preclusion. Id. 37.
Gutierrez’s DNA challenge to his execution is only cognizable in habeas
corpus. Id. at 38.
Gutierrez’s claims are “patently meritless” and the Texas DNA testing
statutory framework protects inmates’ rights. Id. at 39-61.
The testing framework as written and applied by the CCA does not offend
fundamental fairness and Gutierrez’s claim fails as a matter of law. Id. at
46.
2
Gutierrez’s execution-chamber claims only apply to Defendants Davis, Collier, and Lewis.
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This Court should dismiss Gutierrez’s execution-chamber claims because
he did not exhaust remedies by completing the prison grievance process.
Id. at 22.
Gutierrez’s execution-chamber claims fail to state a claim upon which
relief can be granted. Id. at 77.
Gutierrez’s response to the motion to dismiss also includes a motion for stay of
execution. Dkt. No. 47. He avers that he does not seek mandamus relief and that his
claims are not subject to dismissal on jurisdictional grounds. Id. at 12, 22. Gutierrez
argues his claims are not barred by the statute of limitations and issue preclusion
does not bar his due process claims. Id. at 38. Gutierrez generally argues the Court
has jurisdiction to consider his claims and that he states claims upon which relief
can be granted. Id.; see Fed. R. Civ. P. 12. Gutierrez contends that his religion
claims are exhausted and that he states a claim upon which relief can be granted.
Dkt. No. 47 at 71-72. Gutierrez argues he may seek declaratory and injunctive relief
from Defendants and that he names appropriate defendants for his lawsuit. Id. at
22.
IV.
Motion to Dismiss Legal Standard
A. 12(b)(1) Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to assert a “lack
of subject-matter jurisdiction” defense. Fed. R. Civ. P. 12(b)(1). In Paterson v.
Weinberger, the Fifth Circuit distinguished between Rule 12(b)(1) facial and factual
attacks: [I]f the defense merely files a Rule 12(b)(1) motion [and thereby makes a
“facial attack”], the trial court is required merely to look to the sufficiency of the
allegations in the complaint because they are presumed to be true. If those
jurisdictional allegations are sufficient, the complaint stands. If a defendant makes
a “factual attack” upon the court’s subject matter jurisdiction over the lawsuit, the
defendant submits affidavits, testimony, or other evidentiary materials. Paterson v.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). A Rule 12(b)(1) motion should be
granted when “it appears certain that the plaintiff cannot prove a plausible set of
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facts that establish subject-matter jurisdiction.” Carroll v. Abide, 788 F.3d 502, 504
(5th Cir. 2015).
B. 12(b)(6) Failure to State a Claim Upon Which Relief Can be
Granted
Federal Rule of Civil Procedure 12(b)(6) authorizes a defendant to move to
dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). When performing a Rule 12(b)(6) analysis, all well-pleaded facts in the
complaint must be accepted as true, and the complaint must be construed in a light
most favorable to the plaintiff. SEC v. Cuban, 620 F.3d 551, 553 (5th Cir. 2010). To
prevail past a motion to dismiss “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. A complaint does not need detailed
factual allegations. Id. A claim survives a motion to dismiss when the plaintiff
“pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The standard is one of plausibility not probability. Id. The court is not
ruling on whether it is likely the plaintiff will prevail but rather whether the
plaintiff may proceed to offer evidence in support of its claims. See id. In evaluating
a plaintiff’s complaint in light of a defendant’s motion to dismiss under Rule
12(b)(6), a court may “begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.” Id. at 679. It is not
the duty of this Court to create a claim which has not been spelled out in the
pleading. Case v. State Farm Mut. Auto. Ins. Co., 294 F.2d 676, 678 (5th Cir. 1961).
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DNA TESTING CLAIMS
V.
Legal Standard
A. Section 1983 DNA Testing Challenge: Osborne and Skinner
The U.S. Supreme Court stated in Osborne and then in Skinner that challenges
to DNA testing procedures may be brought in a § 1983 action because requesting
access to testing does not necessarily imply the guilt or innocence of a defendant as
the defendant is not yet in possession of exculpatory evidence. Skinner v. Switzer,
562 U.S. 521, 534 (2011); Dist. Attorney's Office for Third Judicial Dist. v. Osborne,
557 U.S. 52, 55, (2009).
Such § 1983 actions are limited but not barred by the Rooker-Feldman doctrine.
Skinner, 562 U.S. at 532. A challenge to the constitutional adequacy of state-law
procedures for post-conviction DNA testing is not within Rooker-Feldman’s ambit.
Id. So long as the Plaintiff does not challenge the adverse state court decisions
themselves “it is not an impediment to the exercise of federal jurisdiction that the
‘same or a related question’ was earlier aired between the parties in state court.”
Skinner, 562 U.S. at 532.
DNA testing is a powerful tool in the criminal justice system and states are
experimenting with the challenges and opportunities posed by DNA evidence. Dist.
Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 62 (2009). The
Supreme Court decided in Osborne to not constitutionalize the area of DNA testing
so as to not “short-circuit what looks to be a prompt and considered legislative
response” from the states. Id. Accordingly, there is no “freestanding” substantive
due process right to access DNA evidence, and federal courts should not presume
that state criminal procedures are inadequate to deal with DNA evidence. Osborne,
557 U.S. at 73-74. Post-conviction DNA testing claims are not “parallel” to a trial
right and are not analyzed under the Brady framework. Id. at 69; see Brady v.
Maryland, 373 U.S. 83 (1963).
Yet, a state’s DNA testing procedures must still comply with some baseline
constitutional protections. Osborne, 557 U.S. at 69. The questions a court asks are
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1) whether the state has granted a liberty interest in demonstrating innocence with
new evidence; and 2) whether the procedures for vindicating that liberty interest
are adequate. Id. Such procedures must not “‘offend[] some principle of justice so
rooted in the traditions and conscience of our people as to be ranked as
fundamental,’ or ‘transgress[] any recognized principle of fundamental fairness in
operation.’” Id. (citing Medina v. California, 505 U.S. 437, 446 (1992)). Federal
courts may only disturb a State’s postconviction procedures if they are
“fundamentally inadequate to vindicate the substantive rights provided.” Id. To
determine if a procedure violates procedural due process a court looks to the
standards of the common law as they existed at the time of adoption of the Fifth
and Fourteenth Amendment. Patterson v. New York, 432 U.S. 197, 202 (1977).
Additionally, a procedure should not offend “some principle of justice so rooted in
the traditions and conscience of our people as to be ranked as fundamental.” Id.
Widespread acceptance or rejection among the states may indicate whether
procedure is contrary to the conscience of the people. Id.
The Court in Osborne found “nothing inadequate” with Alaska’s postconviction
DNA testing procedures. Osborne, 557 U.S. at 69-70. The Court noted that Alaska’s
procedures requiring evidence to be newly available, diligently pursued and
sufficiently material are similar to federal law and the law of other states and are
not inconsistent with the conscience of the people or fundamental fairness. Id. at 70.
The Court stated Alaska’s constitutionally created right of DNA access provided
additional protection to parties who may not be able to seek testing under statute.
Id. The Osborne Court noted that exhaustion of a state law remedy is not required
but can be useful to demonstrate that the procedures do not work in practice. Id. at
71.
Circuit courts addressing 1983 DNA complaints have encountered facial and
“as-applied” procedural Due Process claims. An as-applied challenges is not
permissible if used to collaterally attack the state court judgment. McKithen v.
Brown, 481 F.3d 89, 98–99 (2d Cir. 2007) (“by bringing an as-applied challenge,
[Plaintiff] is asking the federal district court to review the validity of the state court
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judgment”); Alvarez v. Attorney Gen. for Fla., 679 F.3d 1257, 1263 (11th Cir. 2012)
(holding that the Rooker-Feldman doctrine bars Plaintiff’s as applied procedural
due process attack on the state court judgment); Wade v. Monroe Cty. Dist. Attorney,
800 F. App'x 114, 119 (3d Cir. 2020) (reversing because “the state court entered a
ruling based upon Wade’s situation, and made no broad pronouncement about how
the statute should be construed in all cases”).
Instead, an as-applied challenge is permissible so far as it illuminates the
authoritative construction of a state law to determine constitutional adequacy.
Morrison v. Peterson, 809 F.3d 1059, 1070 (9th Cir. 2015) (finding plaintiff’s as
applied challenge is permissible and “merely argues a defect that is not apparent
from the face of the statute.”) The Second Circuit approved of a plaintiff’s as-applied
challenge and reinstated a jury verdict which determined plaintiff was deprived of
procedural due process by the city’s poor evidence handling system. Newton v. City
of New York, 779 F.3d 140, 159 (2d Cir. 2015).
In unpublished opinions, the Fifth Circuit has repeatedly identified Article 64
of the Texas Code of Criminal Procedure as a substantive right created by the state
for post-conviction DNA testing. “Texas has created a right to post-conviction DNA
testing in Article 64 of the Texas Code of Criminal Procedure. Thus, ‘[w]hile there is
no freestanding right for a convicted defendant to obtain evidence for postconviction DNA testing, Texas has created such a right, and, as a result, the state[]provided procedures must be adequate to protect the substantive rights provided.’”
Emerson v. Thaler, 544 F. App'x 325, 327–28 (5th Cir. 2013) (quoting Elam v. Lykos,
470 F. App’x. 275, 276 (5th Cir.2012)).
B. Eleventh Amendment Immunity and Proper Defendants
The Eleventh Amendment provides state officials immunity from suit in
federal court. An exception exists when a state actor enforces an unconstitutional
law. K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010). “Immunity does not bar
suits against defendants in their official capacities.” Johnson v. Kegans, 870 F.2d
992, 998 (5th Cir. 1989). To be a proper defendant in such a declaratory/injunctive
action a defendant must have a connection to the enforcement of the disputed act.
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K.P., 627 F.3d at 124. In Skinner, the Court found the plaintiff had properly stated
a claim against Lynn Switzer, a district attorney, whose office had custody of the
evidence plaintiff sought to have tested. Skinner v. Switzer, 562 U.S. at 529; see also
Emerson, 544 F. App'x at 328 n. 2.
C. Access to the Courts
Prisoners have a right to some legal assistance to have meaningful access to the
Courts. Lewis v. Casey, 518 U.S. 343, 350, 116 S. Ct. 2174, 2179, 135 L. Ed. 2d 606
(1996). But access to the Courts does not encompass the ability to discover
grievances. Id.
VI.
DNA Testing Analysis
A. Subject Matter Jurisdiction and Rooker-Feldman
This Court does not have jurisdiction to consider a challenge to the CCA’s
decisions on Gutierrez’s DNA testing motion itself, as it is barred by the RookerFeldman doctrine. See Lance, 546 U.S. at 463 (noting the “aggrieved litigant cannot
be permitted to do indirectly what he no longer can do directly”). Such a challenge,
if successful, would effectively nullify a state court judgment, and only the Supreme
Court is vested with jurisdiction for appeals from final state-court judgments. See
id. The Court additionally does not have subject matter jurisdiction over Gutierrez’s
as-applied challenge to the extent it seeks to relitigate his state DNA testing
complaint, as it also falls under the ambit of Rooker-Feldman as well. See id;
Alvarez., 679 F.3d at 1263; Wade v. Monroe Cty. Dist. Attorney, 800 F. App'x 114,
119 (3d Cir. 2020).
Gutierrez states in his response that he does not seek mandamus relief to
compel a different outcome from the one he received from the CCA. Dkt. No. 47 at
19. Yet, Gutierrez also asks the Court in his complaint to issue a “preliminary and
permanent injunction requiring Defendants to produce and release for DNA testing”
evidence he desires tested. Dkt. No. 46 at 38. The Court does not have jurisdiction
to order such testing because it runs aground on a Rooker-Feldman shoal. See
Lance, 546 U.S. at 463; Skinner, 562 U.S. at 532.
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Accordingly, the Court GRANTS Defendant’s motion to dismiss for lack of
subject matter jurisdiction for claims which seek direct relief of a state court
judgment, as barred by the Rooker-Feldman doctrine. See Lance, 546 U.S. at 463;
Carroll, 788 F.3d at 504; Skinner v. Switzer, 562 U.S. at 532.
Yet just because some claims may be barred by the narrow Rooker-Feldman
doctrine, that does not mean all causes of action relating to a state-court proceeding
are barred. Lance, 546 U.S. at 464. This Court does have subject matter jurisdiction
to consider federal questions, such as those brought within a § 1983 civil action for
the deprivation of rights. Osborne, 557 U.S. at 69-70; Skinner, 562 U.S. at 532.
Gutierrez’s complaint articulates numerous federal grounds of relief regarding the
DNA testing statute itself, for example: “a declaratory judgment that Article 64 of
the Texas Code of Criminal Procedure, as applied by the CCA, is unconstitutional.”
See id.; Dkt. No. 45 at 36. Accordingly, just as the Courts in Osborne and Skinner
had jurisdiction, this Court has jurisdiction to consider those questions and
DENIES Defendants’ motion to dismiss for lack of jurisdiction. See id.; Carroll, 788
F.3d at 504; Osborne, 557 U.S. at 69-70; Skinner, 562 U.S. at 532; Elam v. Lykos,
470 F. App’x. 275, 276 (5th Cir. 2012).
B. Eleventh Amendment and Proper Defendants
The Court must consider whether suit against defendants in this action is
barred by the Eleventh Amendment. In DNA testing challenges district attorneys
have been accepted as an appropriate defendant under the declaratory relief
exception to Eleventh Amendment immunity because of their custodianship of the
evidence at issue and role in the statute itself. Skinner, 562 U.S. at 529; see also,
Morrison v. Peterson, 809 F.3d 1059, 1070 (9th Cir. 2015); McKithen v. Brown, 481
F.3d 89, 98–99 (2d Cir. 2007); Wade v. Monroe Cty. Dist. Attorney, 800 F. App'x 114,
119 (3d Cir. 2020).
Here, Saenz and Sauceda are the parties who have custody over the evidence
Gutierrez seeks to have tested under the DNA statute. Because of their connection
to the statute, its constitutionality directly implicates their duties under it. See Tex.
Crim. Proc. Code art. 64. This Court again follows the path laid down by the
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Supreme Court in Skinner and concludes the Eleventh Amendment does not bar
suit against Sauceda and Saenz for purposes of this DNA testing challenge for
declaratory and injunctive relief. See id.
Defendants’ argument that Saenz is absolutely immune from suit is
misplaced as Saenz is being sued in his official capacity. Just as in Skinner, where a
District Attorney was properly subject to suit in a DNA testing challenge, Saenz
and Sauceda are proper parties here. See Skinner, 562 U.S. at 529; Johnson, 870
F.2d at 998 n.5.
Gutierrez states that the other Defendants are party to this suit for his
religion claims, therefore it would be improper to dismiss them for a lack of
connection to his DNA claims. See Dkt. No. 47 at 31. Accordingly, the Court
DENIES Defendants’ motion to dismiss on Eleventh Amendment grounds.
C. Stating a DNA Claim Under Osborne and Skinner
Gutierrez’s claims challenge the constitutionality of the DNA testing statute
on its face and as applied. Dkt. No. 45. He claims the statute violates procedural
due process because: it denies a movant the ability to seek testing of evidence that
would demonstrate he is innocent of the death penalty and it is unequally and
unfairly applied to people who are convicted as a party. He argues the “different
outcome” standard is overbroad. Dkt. No. 45 at 25-26. These claims are emblematic
of claims upon which relief can be granted as they clearly state the alleged harm
and relief requested. Indeed, this challenge tracks precisely the bounds of a DNA
statute challenge the Supreme Court set out in Osborne and Skinner. See Osborne,
557 U.S. at 69-70; Skinner, 562 U.S. at 529.
As opposed to other claims that have been dismissed as frivolous or masked
collateral attacks on state court judgments, Gutierrez descriptively identifies how
Chapter 64 and its authoritative interpretation by the CCA may be denying a
constitutional right. See Elam, 470 F. App’x. at 276; Morrison, 809 F.3d at 1070;
McKithen, 481 F.3d at 98–99; Wade, 800 F. App'x at 119; Alvarez., 679 F.3d at 1263.
The Court DENIES Defendants’ motion to dismiss for failure to state a claim
regarding Gutierrez’s claims challenging the constitutionality of Chapter 64.
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D. DNA Testing Statute of Limitations
The CCA considered Gutierrez’s Chapter 64 DNA testing motion on the
merits on February 26, 2020. Gutierrez v. State, No. AP-77,089, 2020 WL 918669, at
*1 (Tex. Crim. App. Feb. 26, 2020). The CCA’s 2020 opinion was also the first time it
considered Gutierrez’s claims under a revised version of the DNA testing statute.
Id. Therefore, the CCA’s decision began a new accrual period that was distinct from
Gutierrez’s 2009 petition under a prior version of the statute. See Ex parte
Gutierrez, 337 S.W.3d 883, 886 (Tex. Crim. App. 2011). February 26, 2020 is the
date Gutierrez would have reason to know of his alleged injury, and he filed his
amended complaint April 22, 2020, well within the two-year statute of limitations
period. See Dkt. No. 45; Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993);
Piotrowski, 237 F.3d at 576.
The Court DENIES Defendants’ motion to dismiss for failure to state a claim
on statute of limitations grounds.
E. DNA Testing Issue Preclusion
A § 1983 challenge for the deprivation of a constitutional right is not the
same as a Chapter 64 motion for DNA testing, nor was the DNA testing motion
litigated or ruled on as a deprivation of right challenge. See Dkt. No. 45; Gutierrez v.
State, No. AP-77,089, 2020 WL 918669, at *1 (Tex. Crim. App. Feb. 26, 2020).
Gutierrez cannot know of, or challenge how a court will interpret and apply the
statute to form the basis of a § 1983 suit for deprivation of constitutional right
before such an interpretation is issued. See id. There is no record before the Court
that Gutierrez litigated the constitutionality of the CCA’s 2020 interpretation of the
DNA testing statute in any other forum. Accordingly, issue preclusion does not
apply. See Weaver v. Texas Capital Bank N.A., 660 F.3d 900, 906 (5th Cir. 2011).
The Court DENIES Defendants’ motion to dismiss for failure to state a claim
on issue preclusion grounds.
F. Eighth Amendment Claims
Gutierrez’s Eighth Amendment claim, that the DNA statute allows an
execution to be carried out in a cruel and unusual way because it permits the
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execution of an innocent person, does not fall within the bounds of Osborne and
Skinner. See Dkt. No. 45 at 37-38; Skinner, 562 U.S. 521. DNA statute claims are
allowed to proceed under § 1983 because they do not challenge the guilt or
innocence of the defendant. Osborne, 557 U.S. at 69-70; Skinner, 562 U.S. at 532.
An essential element of Gutierrez’s Eighth Amendment challenge is his purported
innocence; therefore, the Court finds this claim necessarily implies the invalidity of
the conviction and a remedy is not available in this § 1983 action. Heck v.
Humphrey, 512 U.S. 477, 487 (1994); Skinner, 562 U.S. 521. The Court GRANTS
Defendants’ motion to dismiss Gutierrez’ Eighth Amendment DNA testing claims
for failure to state a claim upon which relief can be granted.
G. Access to Courts
Gutierrez’s complaint does not state facts demonstrating a denial of
mandated legal assistance, or other access to court issues. See Dkt. No. 45. A denial
of DNA testing on the merits does not create an access to the courts claim as he has
access to the Courts to litigate his grievances. See Dkt. No. 45 at 37; Lewis v. Casey,
518 U.S. 343, 350, 354 (1996). Accordingly, the Court GRANTS Defendants’ motion
to dismiss Gutierrez’s access to the courts claim for failure to state a claim.
H. Merit of Gutierrez DNA Statute Claims
Defendants argue Gutierrez’s DNA statute claims fail on the merits because
nothing in the statute or the CCA’s opinions violates procedural due process. Dkt.
No. 46 at 39. Defendants correctly identify the Medina test that governs criminal
procedural due process for DNA claims. Dkt. No. 46 at 60. However, Defendants fail
to apply the Medina factors to Gutierrez’s complaint. Id. Defendants do not cite
binding authority as to why Texas’ DNA testing statute is constitutional on its face
and as applied by the CCA. Dkt. No. 46 at 73. The legal waters become murkier
when Defendants improperly state the DNA standard under review in Osborne,3
and cite the CCA’s own opinion for the proposition that Gutierrez is not entitled to
DNA testing for evidence that could show he is innocent of the death penalty. Id.
3
The standard cited by Defendants, Dkt. No. 46 at 58, is the post-conviction relief standard in Alaska, not the
standard for access to DNA testing. Osborne, 557 U.S. at 65.
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In Gutierrez’s complaint and response, he argues for relief based on several
legal claims that the Court is dismissing in this opinion. Neither party has
demonstrated a success or failure on the merits of Gutierrez’s complaint and the
fundamental adequacy of the process provided under Texas’ DNA testing statute.
See Osborne, 557 U.S. at 69; Medina v. California, 505 U.S. 437, 446; Patterson v.
New York, 432 U.S. 197, 202; see e.g., Harris v. Lykos, No. 12-20160, 2013 WL
1223837, at *1 (5th Cir. Mar. 27, 2013). The Court expects the narrowing of issues
will focus the legal briefing as this case progresses.
EXECUTION-CHAMBER CLAIMS
VII.
Legal Standard
A. PLRA Exhaustion
Section 1997(e) of the Prison Litigation Reform Act (PLRA) provides that
“[n]o action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). TDCJ’s grievance procedures require inmates to
complete a two-step grievance process before a claim is exhausted. See Rosa v.
Littles, 336 F. App’x 424, 428 (5th Cir. 2009) (citing Johnson v. Johnson, 385 F.3d
503, 515 (5th Cir. 2004)). Inmates must first file a Step One grievance within fifteen
days of any alleged incident. See Rosa, 336 F. App’x at 428. Inmates may then
appeal the Warden’s decision on the Step One grievance by filing a Step Two
grievance. Id. The Fifth Circuit “has held that, pursuant to the TDCJ’s grievance
process, a prisoner must pursue a grievance through both steps for it to be
exhausted.” Id.; see also Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001)
(stating that a prisoner must “pursue the grievance remedy to conclusion”).
The PLRA’s exhaustion requirement only requires a prisoner to complete
“administrative remedies as are available . . . .” 42 U.S.C. § 1997e(a) (emphasis
added). The Supreme Court has instructed that an inmate is only required to
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exhaust those “grievance procedures that are ‘capable of use’ to obtain ‘some relief
for the action complained of.’” Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1859
(2016) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)) (emphasis added). An
inmate is not required to exhaust “an administrative remedy, although officially on
the books, [which] is not capable of use to obtain relief.” Ross, 136 S. Ct. at 1859; but
see Valentine v. Collier, 956 F.3d 797, 804 (5th Cir 2020) (“[S]o long as the State’s
administrative procedure grants authority to take some action in response to a
complaint, that procedure is considered available, even if it cannot provide the
remedial action an inmate demands.”) (emphasis added).
B. First Amendment
Regarding regulation of First Amendment rights, the Supreme Court has
“repeatedly emphasized [its] unwillingness to be confined to any single test or
criterion in this sensitive area.” Lynch v. Donnelly, 465 U.S. 668, 679 (1984).
Accordingly, the Supreme Court has provided different considerations in First
Amendment cases that depend on the context, including the Turner standard for
some constitutional claims in the prison context. Under Turner, a federal court
considers: (1) whether a “valid, rational connection exists between the prison
regulation and the legitimate governmental interest put forward to justify it,” (2)
whether there exist “alternative means of exercising the fundamental right that
remain open to prison inmates,” (3) what “impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the allocation of
prison resources generally,” and (4) whether there is an “absence of ready
alternatives” to the regulation in question. Turner v. Safley, 482 U.S. 78, 89 (1987).
In Lemon, the Supreme Court set out the general test for determining
whether a government practice violates the Establishment Clause. Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971). Under Lemon, a court deciding whether
government policy or practice violates the Establishment Clause asks “(1) whether
the government activity in question has a secular purpose, (2) whether the activity’s
primary effect advances or inhibits religion, and (3) whether the government
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activity fosters an excessive entanglement with religion.” Van Orden v. Perry, 351
F.3d 173, 177 (5th Cir. 2003).
C. RLUPIA
RLUIPA provides in part: “No government shall impose a substantial burden
on the religious exercise of a person residing in or confined to an institution,” unless
the burden furthers “a compelling governmental interest,” and does so by “the least
restrictive means.” RLUIPA “alleviates exceptional government-created burdens on
private religious exercise.” Cutter v. Wilkinson, 544 U.S. 709, 720 (2005).
Specifically, RLUPA states:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution, as defined
in section 1997 of this title, even if the burden results from a rule of
general applicability, unless the government demonstrates that
imposition of the burden on that person(1)
is in furtherance of a compelling governmental
interest; and
(2)
is the least restrictive means of furthering that
compelling governmental interest.
42 U.S.C. § 2000cc-1(a).
VIII.
Legal Analysis
A. PLRA Exhaustion
Gutierrez alleges he initially requested the presence of a TDCJ-employed
chaplain through informal means. Dkt. No. 45 at 15. Gutierrez states that he spoke
with TDCJ employees, filed an I-60 “Offender Request to Official” form, and had his
attorneys email TDCJ’s General Counsel on July 30, 2019 requesting a reasonable
accommodation. Dkt. No. 1-1 at 16-17. When those efforts were unsuccessful,
Gutierrez followed the formal grievance procedure by filing a Step One grievance on
August 19, 2019. Id. at 18. Prison officials did not respond to Gutierrez’s Step One
grievance. Gutierrez filed this lawsuit on September 26, 2019, and no further action
through the prison process has occurred. Dkt. No. 1.
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Defendants argue that Gutierrez has failed to exhaust his administrative
remedies. According to Defendants, even though Gutierrez received no response he
should have proceeded to file a Step Two grievance and thus did not “satisfy even
the ‘spirit’ of the exhaustion rule.” Dkt. No. 46 at 22 n.10. Defendants support their
argument by citing cases in which the Fifth Circuit has found a lack of exhaustion
because an inmate failed to proceed to Step Two when he did not receive a response
from prison officials at Stage One. Dkt. No. 46 at 24-25 (collecting cases).
Gutierrez argues that his “inability to complete TDCJ’s grievance process,
however, was the direct result of Defendants’ own design.” Dkt. No. 47 at 15.
Gutierrez emphasizes that “TDCJ’s grievance procedures require the prison to
answer a Step 1 grievance before a prisoner can file a Step 2 appeal of that decision.
That requirement is made clear by TDCJ’s Offender Orientation Handbook, which
sets forth the grievance procedures.” Dkt. No. 47 at 15. With the execution date of
June 16, 2020, which was set on February 28, 2020, prison officials have not
responded to Gutierrez’s official requests.4
Gutierrez alleges that TDCJ
stonewalled to extinguish his complaints through the execution of his death
sentence. Gutierrez argues that the exhaustion requirement cannot require him to
disregard prison grievance procedure by filing a Step Two grievance without having
received a response from prison officials, particularly when his execution could
interrupt the grievance process. Dkt. No. 47 at 21-29.
Gutierrez also argues that a recent case indicates that exhaustion should be
forgiven here. Facing an execution date, Patrick Henry Murphy asked TDCJ
officials to allow his Buddhist spiritual advisor to accompany him in the execution
chamber. Unable to resolve the case through informal means, Murphy filed suit in
federal court without having filed a prison grievance. Murphy v. Collier, 423 F.
Supp. 3d 355, 361 (S.D. Tex. 2019). Notwithstanding his failure to exhaust, the U.S.
Supreme Court stayed Murphy’s execution. When the State of Texas again sought
an execution date during the pendency of Murphy’s litigation, the U.S. District
4
According to his pleadings, TDCJ general counsel informed Gutierrez’s attorneys by email
that his request for a spiritual adviser in the execution chamber was denied. Dkt. No. 45 at 14.
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Court found exhaustion unnecessary because TDCJ already had made clear it
would not change its policy. Murphy v. Collier, No. 4:19-cv-1106, Order Staying
Execution, Dkt. No. 57 at 5 n.1 (S.D. Tex. Nov. 7, 2019). On appeal, the Fifth Circuit
rejected TDCJ’s arguments based on exhaustion:
The TDCJ also argues that the district court abused its discretion in
granting the stay because Murphy’s claims are unexhausted and
therefore unlikely to succeed. Again, the Supreme Court implicitly
rejected this argument in March. At every stage of the March 2019
proceedings, the TDCJ argued that Murphy’s claims were
unexhausted. The Supreme Court could not have permitted Murphy’s
case to proceed if it accepted the TDCJ’s exhaustion argument.
Because the Supreme Court has already rejected this argument, we
reject it as well.
Murphy v. Collier, 942 F.3d 704, 709 (5th Cir. 2019).
Defendants attempt to distinguish the circumstances of the Murphy case
because it came before the courts in a stay-of-execution context, rather than a Rule
12(b)(6) motion as in the instant case. Even with that distinction, Defendants refuse
to recognize a common element between the two cases: an important factual
question exists of whether Texas prison officials will take any action through the
general grievance process regarding an inmate’s execution-chamber concerns.
Gutierrez gave notice of his claims through the formal process which halted
when prison officials did not respond to his grievance. Dkt. No. 1-1 at 18. Gutierrez
made even greater efforts to avail himself of the prison grievance procedure than
those in Murphy where the Fifth Circuit and Supreme Court refused to stay an
execution based on similar exhaustion arguments. See Murphy, 942 F.3d at 709;
Dkt. No. 45 at 15. The lack of clarity created by Murphy regarding the exhaustion
doctrine mirrors the lack of clarity on the exhaustion question in this case. A factual
question exists about whether relief—which in this case presumably means a
change to, or accommodation from, TDCJ policy—is actually available through the
prison grievance process to death row inmates requesting the presence of a spiritual
advisor in the execution chamber. Given the unresolved factual issue about the
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applicability of the PLRA exhaustion standard in this case, the Court DENIES
Defendants’ motion to dismiss on those grounds. See 42 U.S.C. § 1997e(a).
Before turning to the specific arguments that Defendants advance in the
motion to dismiss, the Court discusses two fundamental concerns about their
arguments. First, Defendants treat Supreme Court precedent regarding the
application of the First Amendment in the prison context as settled when important
constitutional issues remain unclear. See Dkt. No. 46 at 77. Second, Defendants
treat a recent statement by a Supreme Court Justice as settled law when his
comments do not have the precedential effect necessary to prove that Gutierrez’s
claims fail as a matter of law, as discussed infra. See id. at 83.
B. Debate Over Legal Standard
Gutierrez’s complaint argues that both the Free Exercise and Establishment
Clauses of the First Amendment guarantee that a TDCJ-employed chaplain may
accompany him into the execution chamber. Dkt. No. 45. The parties debate which
standard should govern Gutierrez’s First Amendment Claims. Gutierrez bases his
arguments on Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). Defendants, on the
other hand, argue that this Court instead should consider the claims under Turner
v. Safley, 482 U.S. 78, 89 (1987). Supreme Court and Fifth Circuit law is not clear
on which standard should govern Gutierrez’s First Amendment claims. The Fifth
Circuit has broadly stated that Turner is “the standard for establishing a First
Amendment violation in the prison context.” Sossamon v. Lone Star State of Texas,
560 F.3d 316, 335 (5th Cir. 2009); see also Omran v. Prator, 674 F. App’x 353, 355
(5th Cir. 2016) (citing Turner and stating that “[p]rison policies that impinge on
fundamental constitutional rights are reviewed under the deferential standard that
a prison regulation is valid if it is reasonably related to legitimate penological
interests”); see also Baranowski v. Hart, 486 F.3d 112, 120 (5th Cir. 2007) (“This
court reviews prison policies that impinge on fundamental constitutional rights
under the deferential standard set forth in Turner . . . .”). The Fifth Circuit has
repeatedly applied the Turner framework to free-exercise claims in the prison
setting. See Triplett v. LeBlanc, 642 F. App’x 457, 461 (5th Cir. 2016); Mayfield v.
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Texas Dept. Of Criminal Justice, 529 F.3d 599, 607 (5th Cir. 2008); Freeman v.
Texas Dept. of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004); Adkins v.
Kaspar, 393 F.3d 559, 564 (5th Cir. 2004).
The U.S. Supreme Court, however, has not used Turner in every case arising
from the prison system. See Johnson v. California, 543 U.S. 499, 510 (2005) (listing
cases in which the Supreme Court has applied the Turner analysis). In fact, the
Supreme Court has never used Turner to decide an Establishment Clause case
brought by inmates. Fifth Circuit law is also not settled on whether Turner applies
to Establishment Clause claims brought by inmates.5 The question of which First
Amendment test will govern Gutierrez’s claims is not determinative to the matters
presently before the Court. As this case progresses, however, the Court will require
additional briefing from the Parties with relevant law from this and other circuits
related to which constitutional test governs the Establishment Clause claim.
C. Statements by Justice Kavanaugh
The Court notes that Defendants rely extensively on statements Justice
Kavanaugh entered respecting the granting of the stay in the Murphy case. When
the Supreme Court stayed Murphy’s execution on March 28, 2019, Justice
Kavanaugh entered a concurring statement which led to Texas’ change in execution
protocol. Justice Kavanaugh commented on equal-access aspects of Murphy’s claim,
5
Defendants point to a recent case in which a Fifth Circuit panel considered whether to apply
Lemon’s strict scrutiny or Turner to an Establishment Clause case in the prison setting. In Brown v.
Collier, 929 F.3d 218, 228-29 (5th Cir. 2019), Circuit Judge Priscilla Owen authored an opinion that
was mostly joined by Judge Carolyn King. Judge King, however, did not join in the portion of the
opinion endorsing the application of Turner to Establishment Clause cases. While Defendants rely on
Brown to argue that Turner applies to all First Amendment claims, an opinion by one circuit judge is
an insufficient basis to hold that Gutierrez’s First Amendment claims fail as a matter of law. Other
courts have been reluctant to use the Turner test in Establishment Clause cases. See Americans
United for Separation of Church and State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 426
(8th Cir. 2007) (“This court has consistently analyzed Establishment claims without mentioning the
Turner standard, even when applying that standard to Free Exercise claims in the same case.”);
Kaufman v. McCaughtry, 419 F.3d 678, 684 (7th Cir. 2005) (considering an Establishment Clause
claim under Lemon test); Scott v. Pierce, 2012 WL 12535442, at *3 (S.D. Tex. 2012) (“[T]he Supreme
Court has never held that Turner should be applied to cases raising Establishment Clause issues.”);
but see Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001) (using the Turner standard in claim of
retaliation against an inmate exercising Establishment Clause rights); Maye v. Klee, 915 F.3d 1076,
1085 (6th Cir. 2019) (“This circuit has not yet resolved the question of whether we look to Turner to
determine whether prison officials violated the Establishment Clause . . . .”).
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proposing that “there would be at least two possible equal-treatment remedies
available to the State going forward: (1) allow all inmates to have a religious adviser
of their religion in the execution room; or (2) allow inmates to have a religious
adviser, including any state-employed chaplain, only in the viewing room, not the
execution room.” Murphy v. Collier, 139 S. Ct. 1475 (2019) (Kavanaugh, J.,
concurring),
On April 2, 2019, TDCJ followed Justice Kavanaugh’s recommendation and
changed its execution policy. Dkt. No. 1-1 at 8. On May 13, 2019, Justice Alito,
joined by Justices Thomas and Gorsuch, entered statement dissenting from the
Supreme Court’s earlier order. Justice Alito’s dissent argued that the Supreme
Court should not have stayed Murphy’s execution because he had not filed his
section 1983 lawsuit in a timely manner. Justice Alito, however, went on to opine
that the First Amendment issues in that case were not easily decided. Justice Alito
highlighted that the “flimsy record” precluded any decision about whether Texas
could safely accommodate Murphy’s request to have his spiritual advisor in the
execution chamber. Justice Alito stated “that the prison setting justifies important
adjustments in the rules that apply outside prison walls. Determining just how far
those adjustments may go is a sensitive question requiring an understanding of
many factual questions that cannot be adequately decided on the thin record before
us.” Additionally, “unresolved factual issues” remained about whether the current
policy furthers TDCJ’s “compelling interest in security,” “is narrowly tailored to
serve that interest,” and “can be sustained on that basis . . . .” Murphy, 139 S. Ct. at
1484 (Alito, J., dissenting from grant of application for stay).
In response to Justice Alito’s dissent, Justice Kavanaugh authored a
statement in which Chief Judge Roberts joined. Justice Kavanaugh recounted that
“Texas changed its unconstitutional policy, and it did so effective immediately.
Texas now allows all religious ministers only in the viewing room and not in the
execution room.” Justice Kavanaugh went on to opine:
The new policy solves the equal-treatment constitutional issue. And
because States have a compelling interest in controlling access to the
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execution room, as detailed in the affidavit of the director of the Texas
Correctional Institutions Division and as indicated in the prior
concurring opinion in this case, the new Texas policy likely passes
muster under the Religious Land Use and Institutionalized Persons
Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. § 2000cc et seq., and
the Free Exercise Clause.
Put simply, this Court's stay facilitated the prompt resolution of a
significant religious equality problem with the State’s execution
protocol and should alleviate any future litigation delays or disruptions
that otherwise might have occurred as a result of the State's prior
discriminatory policy.
Murphy, 139 S. Ct. at 1476 (statement of Kavanaugh, J.).
Defendants argue that “the litigation in Murphy’s case has little, if any,
bearing on Plaintiff’s Chaplain claim,” Dkt. No. 46 at 69 n.32, but then repeatedly
rely on Justice Kavanaugh’s two statements as having established law that binds
this Court. Defendants particularly use Justice Kavanaugh’s statements to argue
that Turner should apply to all Gutierrez’s First Amendment claims and that
Gutierrez has not pleaded a claim upon which relief can be granted. However, a
statement by a Supreme Court Justice does not carry binding precedential effect.
See Ramos v. Louisiana, ___ S. Ct. ___, 2020 WL 1906545, at *7 (2020) (examining
the precedential effect of an opinion by a single Supreme Court Justice and
remarking that “no case has before suggested that a single Justice may overrule
precedent”). Even if Justice Kavanaugh’s statements could be construed as an
indication of how the Supreme Court may rule in the future, this Court’s role at the
pleading stage is not to prognosticate the ultimate decision on an inmate’s claim.
The ultimate question in a Rule 12(b)(6) motion is whether, when viewed in a light
most favorable to the plaintiff, the complaint states a valid claim. See Great Plains
Trust Co. v. Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). This
review does not question the plaintiff’s likelihood of success; instead, it only decides
whether he has pleaded a legally cognizable claim. See United States ex rel. Riley v.
St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). Statements by less
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than a majority of the Supreme Court are an insufficient basis to show that, as a
matter of law, Gutierrez has not made a claim on which relief can be granted.
Having addressed those two fundamental concerns about Defendants’
arguments, the Court turns to the question of whether Gutierrez has sufficiently
pleaded claims that survive the motion to dismiss.
D. Establishment Clause
Gutierrez argues that the TDCJ policy excluding his chosen spiritual advisor
violates the Establishment Clause. Under the First Amendment, “Congress shall
make no law respecting an establishment of religion.” U.S. Const., amend. I. The
Establishment Clause prohibits the governmental entities from preferring one
religion over others, but also prevents the creation of laws that demonstrate
hostility toward religion. See American Legion v. American Humanist Association,
___ U.S. ___, 139 S. Ct. 2067, 2074 (2019); Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U.S. 819, 845-46 (1995); Larson v. Valente, 456 U.S. 228, 246
(1982). Prior to April 2, 2019, Gutierrez would have been entitled to the presence of
a chaplain in his final moments. Gutierrez claims that the revocation of that policy
was an act hostile to religion. Dkt. No. 45 at 35.
Defendants primarily rely on the Turner standard and argue that “the
deferential standard applied by the Supreme Court and Fifth Circuit to
Establishment Clause claims leads to the conclusion that TDCJ’s protocol is plainly
permissible.” Dkt. No. 46 at 71. Applying the Turner factors, Defendants argue that:
(1) the new protocol is rationally connected to its security interests; (2) excluding a
spiritual advisor from the execution chamber does not prevent an inmate from
exercising his religion the during his execution; (3) allowing Gutierrez to have
TDCJ approved chaplains would require the same right to be extended to inmates of
all denominations and some inmates would request a spiritual advisor who was not
a TDCJ approved chaplain;6 and (4) no ready alternatives exist to allowing an
6
Defendants premise these arguments on Turner which instructed that “[w]hen
accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on
prison staff, courts should be particularly deferential to the informed discretion of corrections
officials.” Turner, 482 U.S. at 90.
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outsider into the execution chamber. Dkt. No. 46 at 71-72. Accordingly, Defendants
argue that “there are no ready alternatives that would alleviate the security risks of
allowing such an outsider into the execution chamber during an execution.” Dkt.
No. 46 at 72.
Gutierrez primarily bases his response on the Lemon test. Gutierrez argues
that the new TDCJ policy is not neutral between religion and non-religion and is
inherently suspect. Gutierrez does not dispute the fact that TDCJ has a compelling
interest in security throughout an execution. Neither does the State dispute that
Texas has long allowed inmates to have TDCJ-employed chaplains in the execution
chamber. According to Gutierrez, the removal of that accommodation signals
hostility toward religion.7
Alternatively addressing Defendants’ arguments under the Turner standard,
Gutierrez contends that the Supreme Court “has ‘found it important to inquire
whether prison regulations restricting inmates’ First Amendment rights operated in
a neutral fashion, without regard to the content of the expression.’” Dkt. No. 47 at
68 (quoting Turner, 482 U.S. at 90 (emphasis added)). Gutierrez contends that the
new TDCJ policy restricts his First Amendment rights in a non-neutral fashion that
is hostile toward religion. Dkt. No. 47 at 78.
Further, Gutierrez argues that Defendants’ arguments about security
concerns are speculative. Defendants do not suggest that the relief Gutierrez
requests—the presence of a TDCJ chaplain as has been allowed many times
before—will pose any security threat in his own execution. The concerns Defendants
raise are those that may occur in other executions, such as that of Patrick Henry
7
Parties debate TDCJ’s intent in the change of its policy. Defendants premise their arguments
on the assumption that “TDCJ’s revision of its protocol regarding the presence of chaplains during
an execution was in response to the Supreme Court’s action in Murphy.” Dkt. No. 46 at 72. Given the
timing of the policy change and the fact that there was no official statement or justification by TDCJ
that would explain why it began disallowing the presence of TDCJ-employed clergy, it could be
reasonable to infer that Defendants acted in response to Justice Kavanaugh’s statement in Murphy.
See McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 861 (2005)
(emphasizing “the intuitive importance of official purpose to the realization of Establishment Clause
values”). At this point, it appears that TDCJ acted with an “obvious secular motivation of
maintaining a safe and orderly execution process,” but at the pleadings stage that speculation is
insufficient to dismiss Gutierrez’s complaint. Dkt. No. 46 at 72.
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Murphy who requested the attendance of a spiritual advisor unaffiliated with the
prison system. At the pleadings stage, the Court lacks information about how the
requested relief would impact the way Texas conducts the execution of other
inmates. This lawsuit has still not developed factual information relating to how
many other faith groups are represented on death row, what security risks exist for
allowing non-TDCJ spiritual advisors into the death chamber, and what rigor must
attend training clergy for the execution process. Assuming that granting relief to
Gutierrez would force Defendants to allow access to chaplains from all faith groups
represented on death row, the pleadings do not give insight into what security
concerns exists, how pervasive those risks may be, and why TDCJ cannot easily
accommodate any rights while still maintaining security. Defendants’ arguments
about secondary ripples from the Gutierrez’s rights are too speculative and
undeveloped to dismiss this case on the pleadings.
Simply, Defendants’ cursory arguments about security concerns do not show
that Gutierrez has failed to plead a claim on which relief can be granted. The Court
DENIES Defendants’ motion to dismiss Gutierrez’ Establishment Clause claim. See
Twombly, 550 U.S. at 555.
E. Free Exercise Clause
Unlike the Establishment Clause claim, Fifth Circuit law shows that the
Turner framework governs Gutierrez’s Free Exercise Claim. To state a free exercise
claim under the First Amendment, a plaintiff must allege sufficient facts showing a
sincere religious belief that the official action or regulation substantially burdens.
Hernandez v. Comm’r, 490 U.S. 680, 699 (1989). A prison policy that substantially
burdens an inmate’s ability to practice his religion withstands a First Amendment
challenge when it is “reasonably related to legitimate penological interests.” O’Lone
v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner, 482 U.S. at 89). The
Parties rely on the same discussion relating to Gutierrez’s Establishment Clause
claim to address his Free Exercise claim. The Court concludes that Gutierrez has
sufficiently pleaded his claim that the current TDCJ policy precludes his sincere
desire to have a spiritual advisor present during his execution. The Court DENIES
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the motion to dismiss the Free Exercise claim for the same reasons as the
Establishment Clause claim.
F. RLUIPA
Gutierrez argues that the absence of a chaplain in the execution chamber
violates his rights under the Religious Land Use and Institutionalized Persons Act
of 2000 (RLUIPA or Act), 114 Stat. 804, 42 U.S.C. § 2000cc-1(a)(1)-(2).
As an initial matter, Defendants argue that Gutierrez has not “assert[ed]
that the physical presence of a chaplain in the execution chamber is required for
him to exercise his religion or to ‘guide[]’ [him] at the time of the execution.” Dkt.
No. 46 at 64 (emphasis added). Defendants have not identified any law sanctioning
the dismissal of a RLUIPA claim based on religious devotion preferred by an inmate
rather than compelled by his religion.8 In his amended complaint, Gutierrez states
he believes that “having a Christian chaplain present in the chamber would help to
ensure his path to the afterlife.” Dkt. No. 45 at 14. Gutierrez’s statement that
prohibiting him “from being guided at the time of death by a Christian chaplain is
an explicit and substantial burden on religious exercise” provides a sufficient basis
for his RLUIPA claim. Dkt. No 45 at 35-36.
Defendants also dispute the sincerity of Gutierrez’s belief insofar as they
argue that he “provides no support for his conclusory assertion that the presence of
a TDCJ chaplain in the witness room—rather than the execution chamber and
during visitation on the day of the execution—is a substantial burden on his
exercise of his religion.” Dkt. No. 46 at 64. Initially, “it falls to the plaintiff to
demonstrate that the government practice complained of imposes a ‘substantial
burden’ on his religious exercise.” Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir.
2004) (citing 42 U.S.C. § 2000cc-2); see also Holt v. Hobbs, 574 U.S. 352, 360 (2015).
“[W]hether the government action or regulation in question imposes a substantial
burden on an adherent’s religious exercise” requires “a case-by-case, fact-specific
8
The Supreme Court has “not addressed whether . . . there is a difference between a State’s
interference with a religious practice that is compelled and a religious practice that is merely
preferred.” Murphy, 139 S. Ct. at 1484 (Alito, J., dissenting from grant of application for stay).
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inquiry.” Adkins, 393 F.3d at 571. Defendants argue that Gutierrez “fails to
demonstrate that TDCJ’s policy would truly force him to ‘substantially modify his
religious behavior’” by having his spiritual advisor in the viewing room, rather than
the execution chamber. Dkt. No. 46 at 64 (quoting Adkins, 393 F.3d at 570). At the
pleadings stage, however, Gutierrez is not required to establish that he is entitled to
relief. His burden is only to plead sufficient facts to state a claim for relief that is
plausible on its face. See Twombly, 550 U.S. at 570. Gutierrez has made that
showing.
Defendants further argue that they have a valid security interest in
preventing clergy from being present in the execution chamber. To reach this
conclusion, Defendants do not argue that their previous policy that allowed TDCJ
clergy to be present created a security risk, nor could they given its long history.
Instead, Defendants argue that “[w]hile Plaintiff frames the relief he requests as
straightforward—because TDCJ has in the past permitted its chaplains to attend
executions—he ignores the inevitable consequences of that relief.” Dkt. No. 46 at 67.
Defendants argue that granting Gutierrez the relief he requests creates the
constitutional concern which in Murphy “the Supreme Court signaled . . . was
impermissible because spiritual advisors not employed by TDCJ could not be
present in the execution chamber.” Dkt. No. 46 at 66. Defendants’ argument,
however, rests on giving Justice Kavanaugh’s statements precedential effect. See
Murphy, 139 S. Ct. at 1476 (statement of Kavanaugh, J.). Justice Kavanaugh’s
statements do not have the precedential effect necessary to prove that a RUILPA
claim fails as a matter of law. See Ramos v. Louisiana, ___ S. Ct. ___, 2020 WL
1906545, at *7 (2020)
Throughout the motion to dismiss, Defendants express concerns about the
security problems that may result in the execution of other inmates if the Court
grants Gutierrez the relief he requests. Security is a paramount consideration in the
assessment of an RLUIPA claim. Defendants correctly argue that “it is indisputable
that TDCJ’s penological interest in security is a compelling interest.” Dkt. No. 46 at
65. However, RLUIPA does not require “unquestioning deference” to prison
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administrators. Holt, 574 U.S. at 864. A prison must “prove that denying the
exemption is the least restrictive means of furthering a compelling governmental
interest.” Id. At this stage of litigation, the Court has no specific facts before it
concerning future security concerns possibly caused by future executions.
Conclusion Regarding Execution-Chamber Claims
IX.
In Murphy, three dissenting Supreme Court Justices commented that the
issues raised by similar claims “are not simple, and they require a careful
consideration of the legitimate interests of both prisoners and prisons.” Murphy,
139 S. Ct. at 1485 (Alito, J., dissenting from grant of application for stay).
Defendants’ motion to dismiss may raise issues needing resolution as the case
progresses, but those issues do not decide the matter immediately before the Court,
which is whether Gutierrez pleaded a valid legal claim that survives a motion to
dismiss. See Fed. R. Civ. P. 12(b); Twombly, 550 U.S. at 555. The Court DENIES
Defendants’ motion to dismiss Gutierrez’s execution-chamber claims.
X.
Conclusion
For the foregoing reasons and after examining the briefs, pleading and relevant
law the Court GRANTS IN PART and DENIES IN PART Defendants Motion to
Dismiss, Dkt. No. 46. The Court hereby:
GRANTS Defendants’ motion to dismiss for lack of subject matter
jurisdiction all claims which seek relief or relitigation of the CCA’s
denial of DNA testing as barred by the Rooker-Feldman doctrine.
GRANTS
Defendants’
motion
to
dismiss
Gutierrez’s
Eighth
Amendment Claims for failure to state a claim upon which relief can
be granted in a § 1983 action.
GRANTS Defendants’ motion to dismiss Gutierrez’s access to the
courts claim for failure to state a claim upon which relief can be
granted.
DENIES Defendants’ motion to dismiss for lack of subject matter
jurisdiction Gutierrez’s claims which challenge the constitutionality of
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Texas’ DNA testing statute on its face and as authoritatively construed
by the CCA.
DENIES Defendants’ motion to dismiss due to Eleventh Amendment
immunity.
DENIES Defendants’ motion to dismiss Gutierrez’s constitutional
challenge to the Texas DNA testing statute for failure to state a claim.
DENIES Defendants’ motion to dismiss due to the statute of
limitations.
DENIES Defendants’ motion to dismiss due to issue preclusion.
DENIES Defendants’ motion to dismiss Gutierrez’s Texas DNA
statute challenge on the merits without additional briefing.
DENIES Defendants’ motion to dismiss Gutierrez’s execution-chamber
claims for failure to state a claim.
SIGNED this 2nd day of June, 2020.
___________________________________
Hilda Tagle
Senior United States District Judge
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United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
RUBEN GUTIERREZ,
§
§
§
§
§
§
§
§
Plaintiff,
VS.
LUIS V SAENZ, et al,
Defendants.
June 09, 2020
David J. Bradley, Clerk
CIVIL NO. 1:19-CV-185
ORDER
The Court is in receipt of Plaintiff Ruben Gutierrez’s (“Gutierrez”) motion for
stay of execution, Dkt. No. 47, 56. The Court is also in receipt of Defendants’
opposition to the stay, Dkt. No. 55. For the foregoing reasons the Court GRANTS
Plaintiff’s motion, Dkt. No. 47.
This action arises under 42 U.S.C. § 1983 and Gutierrez challenges the
constitutionality of Texas’ DNA testing statute. Dkt. No. 45 at 3; Tex. Crim. Proc.
Code art. 64. Gutierrez claims the statute violates procedural due process because it
denies a movant the ability to test evidence that would demonstrate he is innocent
of the death penalty, and it is unequally and unfairly applied to someone who is
convicted under the law of parties. He also claims its different outcome standard is
overbroad. Dkt. No. 45 at 25-26. Gutierrez seeks a declaratory judgment holding
Chapter 64 unconstitutional. Id. at 37.
Gutierrez also claims he will be executed under conditions that violate the
First
Amendment’s
Free
Exercise
and
Establishment
Clauses
and
that
substantially burden the exercise of his religious beliefs protected by the Religions
Land Use and Institutionalized Persons Act (“RLUIPA”) of 2000, 42 U.S.C. § 2000cc
et seq. Id. at 15.
Gutierrez requested a Texas Department of Criminal Justice (“TDCJ”)
employed chaplain to accompany him during his final moments in the execution
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chamber. His request was denied based on the TDCJ execution procedure adopted
on April 2, 2019, which prohibits all religious or spiritual advisors from entering the
execution chamber. That TDCJ policy now states: “TDCJ Chaplains and
Ministers/Spiritual Advisors designated by the offender may observe the execution
only from the witness rooms.” Facing an execution date, Gutierrez filed this lawsuit
requesting “a reasonable accommodation to have a Christian chaplain in the
execution chamber when he is executed[.]” Dkt. No. 45 at 3. Gutierrez claims relief
is necessary to ensure he is executed in way that does not unfairly burden the
exercise of his religious beliefs. Id. at 4.
On June 2, 2020, after extensive analysis, this Court granted in part and
denied in part Defendants’ motion to dismiss Gutierrez’s complaint for failure to
state a claim and for lack of jurisdiction. Dkt. No. 48 at 30-31 (granting dismissal on
three grounds and denying dismissal all other grounds). The Court reserved the
question of whether to stay Gutierrez’s June 16, 2020 execution for determination
in a separate order. Dkt. 48 at 1. The briefing before the Court is adequate to decide
whether Gutierrez is entitled to a stay of execution.
When considering a motion to stay a court should determine
“(1) whether the movant has made a showing of likelihood of success on the
merits, (2) whether the movant has made a showing of irreparable injury if
the stay is not granted, (3) whether the granting of the stay would
substantially harm the other parties, and (4) whether the granting of the stay
would serve the public interest.”
In re Campbell, 750 F.3d 523, 534 (5th Cir. 2014) (citing Nken v. Holder, 556 U.S.
418, 433-34 (2009)).
A person condemned to death has no automatic entitlement to a stay of
execution. McFarland v. Scott, 512 U.S. 849, 858 (1994). A stay of execution is an
equitable remedy, not available as a matter of right. Wood v. Collier, 836 F.3d 534,
538 (5th Cir. 2016). A stay is an exercise of judicial discretion, dependent on the
circumstances of the particular case. Nken, 556 U.S. at 433. In a capital case, the
movant must show a substantial case on the merits and show the balance of
equities weighs heavily in favor of granting the stay. Celestine v. Butler, 823 F.2d
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74, 77 (5th Cir. 1987). The court must consider a state’s strong interest in
proceeding with judgement and attempts at unnecessary delay or manipulation in
bringing a claim. Nelson v. Campbell, 541 U.S. 637, 649 (2004).
The Court’s analysis in this case demonstrates there are outstanding,
substantial, and novel legal and factual questions raised by Gutierrez that have
survived a motion to dismiss. Dkt. No. 45. The Court concludes that Gutierrez has
made a showing of likelihood of success on the merits of at least one of his DNA or
execution-chamber claims. See Dkt. No. 45. While the public has a strong interest
in the execution of a valid criminal judgment, the public interest will also be served
by fair adjudication of the important issues raised by Gutierrez’s lawsuit. Weighing
those factors, as well as the potential irreparable injury Gutierrez will suffer if his
execution were to go forward, against any harm the state may experience through
delay in executing his death sentence, the Court concludes that a stay is warranted
in this case. See Nken, 556 U.S. at 433-34; In re Campbell, 750 F.3d at 534. A stay
will allow this Court to resolve the serious factual and legal issues that remain
pending. See Murphy v. Collier, 942 F.3d 704, 709 (5th Cir. 2019) (staying the
execution of an inmate raising a similar execution-chamber claims “to explore and
resolve serious factual concerns about the balance between . . . religious rights and
the prison’s valid concerns for security”).
The Court ORDERS that Gutierrez’s motion, Dkt. No. 47, for stay of
execution is GRANTED, and his execution scheduled for June 16, 2020 after 6:00
p.m. is STAYED pending resolution of this § 1983 action.
SIGNED this 9th day of June, 2020.
___________________________________
Hilda Tagle
Senior United States District Judge
3/3
A42
§ 2000cc. Protection of land use as religious exercise, 42 USCA § 2000cc
KeyCite Yellow Flag - Negative Treatment
Unconstitutional or PreemptedLimited on Constitutional Grounds by Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 3rd Cir.(N.J.), Nov.
27, 2007
United States Code Annotated
Title 42. The Public Health and Welfare
Chapter 21C. Protection of Religious Exercise in Land Use and by Institutionalized Persons
42 U.S.C.A. § 2000cc
§ 2000cc. Protection of land use as religious exercise
Effective: September 22, 2000
Currentness
(a) Substantial burdens
(1) General rule
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious
exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the
burden on that person, assembly, or institution-(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) Scope of application
This subsection applies in any case in which-(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden
results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations,
among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations,
under which a government makes, or has in place formal or informal procedures or practices that permit the government
to make, individualized assessments of the proposed uses for the property involved.
(b) Discrimination and exclusion
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
A43 1
§ 2000cc. Protection of land use as religious exercise, 42 USCA § 2000cc
(1) Equal terms
No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution
on less than equal terms with a nonreligious assembly or institution.
(2) Nondiscrimination
No government shall impose or implement a land use regulation that discriminates against any assembly or institution on
the basis of religion or religious denomination.
(3) Exclusions and limits
No government shall impose or implement a land use regulation that-(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.
CREDIT(S)
(Pub.L. 106-274, § 2, Sept. 22, 2000, 114 Stat. 803.)
Notes of Decisions (244)
42 U.S.C.A. § 2000cc, 42 USCA § 2000cc
Current through P.L. 116-142.
End of Document
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
A44 2
§ 2000cc-1. Protection of religious exercise of institutionalized..., 42 USCA § 2000cc-1
KeyCite Yellow Flag - Negative Treatment
Unconstitutional or PreemptedLimited on Constitutional Grounds by Lovelace v. Lee, 4th Cir.(Va.), Dec. 29, 2006
United States Code Annotated
Title 42. The Public Health and Welfare
Chapter 21C. Protection of Religious Exercise in Land Use and by Institutionalized Persons
42 U.S.C.A. § 2000cc-1
§ 2000cc-1. Protection of religious exercise of institutionalized persons
Effective: September 22, 2000
Currentness
(a) General rule
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution,
as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government
demonstrates that imposition of the burden on that person-(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(b) Scope of application
This section applies in any case in which-(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among
the several States, or with Indian tribes.
CREDIT(S)
(Pub.L. 106-274, § 3, Sept. 22, 2000, 114 Stat. 804.)
Notes of Decisions (375)
42 U.S.C.A. § 2000cc-1, 42 USCA § 2000cc-1
Current through P.L. 116-142.
End of Document
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
A45 1
§ 2000cc-2. Judicial relief, 42 USCA § 2000cc-2
KeyCite Yellow Flag - Negative Treatment
Unconstitutional or PreemptedLimited on Constitutional Grounds by Lovelace v. Lee, 4th Cir.(Va.), Dec. 29, 2006
United States Code Annotated
Title 42. The Public Health and Welfare
Chapter 21C. Protection of Religious Exercise in Land Use and by Institutionalized Persons
42 U.S.C.A. § 2000cc-2
§ 2000cc-2. Judicial relief
Effective: September 22, 2000
Currentness
(a) Cause of action
A person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against
a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under
article III of the Constitution.
(b) Burden of persuasion
If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation
of section 2000cc of this title, the government shall bear the burden of persuasion on any element of the claim, except that
the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is
challenged by the claim substantially burdens the plaintiff's exercise of religion.
(c) Full faith and credit
Adjudication of a claim of a violation of section 2000cc of this title in a non-Federal forum shall not be entitled to full faith and
credit in a Federal court unless the claimant had a full and fair adjudication of that claim in the non-Federal forum.
(d) Omitted
(e) Prisoners
Nothing in this chapter shall be construed to amend or repeal the Prison Litigation Reform Act of 1995 (including provisions
of law amended by that Act).
(f) Authority of United States to enforce this chapter
The United States may bring an action for injunctive or declaratory relief to enforce compliance with this chapter. Nothing in
this subsection shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General, the United
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
A46 1
§ 2000cc-2. Judicial relief, 42 USCA § 2000cc-2
States, or any agency, officer, or employee of the United States, acting under any law other than this subsection, to institute
or intervene in any proceeding.
(g) Limitation
If the only jurisdictional basis for applying a provision of this chapter is a claim that a substantial burden by a government on
religious exercise affects, or that removal of that substantial burden would affect, commerce with foreign nations, among the
several States, or with Indian tribes, the provision shall not apply if the government demonstrates that all substantial burdens on,
or the removal of all substantial burdens from, similar religious exercise throughout the Nation would not lead in the aggregate
to a substantial effect on commerce with foreign nations, among the several States, or with Indian tribes.
CREDIT(S)
(Pub.L. 106-274, § 4, Sept. 22, 2000, 114 Stat. 804.)
Notes of Decisions (207)
42 U.S.C.A. § 2000cc-2, 42 USCA § 2000cc-2
Current through P.L. 116-142.
End of Document
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
A47 2
§ 2000cc-3. Rules of construction, 42 USCA § 2000cc-3
KeyCite Yellow Flag - Negative Treatment
Unconstitutional or PreemptedLimited on Constitutional Grounds by Lovelace v. Lee, 4th Cir.(Va.), Dec. 29, 2006
United States Code Annotated
Title 42. The Public Health and Welfare
Chapter 21C. Protection of Religious Exercise in Land Use and by Institutionalized Persons
42 U.S.C.A. § 2000cc-3
§ 2000cc-3. Rules of construction
Effective: September 22, 2000
Currentness
(a) Religious belief unaffected
Nothing in this chapter shall be construed to authorize any government to burden any religious belief.
(b) Religious exercise not regulated
Nothing in this chapter shall create any basis for restricting or burdening religious exercise or for claims against a religious
organization including any religiously affiliated school or university, not acting under color of law.
(c) Claims to funding unaffected
Nothing in this chapter shall create or preclude a right of any religious organization to receive funding or other assistance from a
government, or of any person to receive government funding for a religious activity, but this chapter may require a government
to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.
(d) Other authority to impose conditions on funding unaffected
Nothing in this chapter shall-(1) authorize a government to regulate or affect, directly or indirectly, the activities or policies of a person other than a
government as a condition of receiving funding or other assistance; or
(2) restrict any authority that may exist under other law to so regulate or affect, except as provided in this chapter.
(e) Governmental discretion in alleviating burdens on religious exercise
A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in
a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious
exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or
by any other means that eliminates the substantial burden.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
A48 1
§ 2000cc-3. Rules of construction, 42 USCA § 2000cc-3
(f) Effect on other law
With respect to a claim brought under this chapter, proof that a substantial burden on a person's religious exercise affects, or
removal of that burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, shall not
establish any inference or presumption that Congress intends that any religious exercise is, or is not, subject to any law other
than this chapter.
(g) Broad construction
This chapter shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the
terms of this chapter and the Constitution.
(h) No preemption or repeal
Nothing in this chapter shall be construed to preempt State law, or repeal Federal law, that is equally as protective of religious
exercise as, or more protective of religious exercise than, this chapter.
(i) Severability
If any provision of this chapter or of an amendment made by this chapter, or any application of such provision to any person
or circumstance, is held to be unconstitutional, the remainder of this chapter, the amendments made by this chapter, and the
application of the provision to any other person or circumstance shall not be affected.
CREDIT(S)
(Pub.L. 106-274, § 5, Sept. 22, 2000, 114 Stat. 805.)
Notes of Decisions (1)
42 U.S.C.A. § 2000cc-3, 42 USCA § 2000cc-3
Current through P.L. 116-142.
End of Document
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
A49 2
§ 2000cc-4. Establishment Clause unaffected, 42 USCA § 2000cc-4
KeyCite Yellow Flag - Negative Treatment
Unconstitutional or PreemptedLimited on Constitutional Grounds by Lovelace v. Lee, 4th Cir.(Va.), Dec. 29, 2006
United States Code Annotated
Title 42. The Public Health and Welfare
Chapter 21C. Protection of Religious Exercise in Land Use and by Institutionalized Persons
42 U.S.C.A. § 2000cc-4
§ 2000cc-4. Establishment Clause unaffected
Effective: September 22, 2000
Currentness
Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the first amendment to the
Constitution prohibiting laws respecting an establishment of religion (referred to in this section as the “Establishment Clause”).
Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not
constitute a violation of this chapter. In this section, the term “granting”, used with respect to government funding, benefits, or
exemptions, does not include the denial of government funding, benefits, or exemptions.
CREDIT(S)
(Pub.L. 106-274, § 6, Sept. 22, 2000, 114 Stat. 806.)
42 U.S.C.A. § 2000cc-4, 42 USCA § 2000cc-4
Current through P.L. 116-142.
End of Document
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
A50 1
§ 2000cc-5. Definitions, 42 USCA § 2000cc-5
KeyCite Yellow Flag - Negative Treatment
Unconstitutional or PreemptedLimited on Constitutional Grounds by Lovelace v. Lee, 4th Cir.(Va.), Dec. 29, 2006
United States Code Annotated
Title 42. The Public Health and Welfare
Chapter 21C. Protection of Religious Exercise in Land Use and by Institutionalized Persons
42 U.S.C.A. § 2000cc-5
§ 2000cc-5. Definitions
Effective: September 22, 2000
Currentness
In this chapter:
(1) Claimant
The term “claimant” means a person raising a claim or defense under this chapter.
(2) Demonstrates
The term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion.
(3) Free Exercise Clause
The term “Free Exercise Clause ” means that portion of the first amendment to the Constitution that proscribes laws
prohibiting the free exercise of religion.
(4) Government
The term “government”-(A) means-(i) a State, county, municipality, or other governmental entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and
(iii) any other person acting under color of State law; and
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
A51 1
§ 2000cc-5. Definitions, 42 USCA § 2000cc-5
(B) for the purposes of sections 2000cc-2(b) and 2000cc-3 of this title, includes the United States, a branch, department,
agency, instrumentality, or official of the United States, and any other person acting under color of Federal law.
(5) Land use regulation
The term “land use regulation” means a zoning or landmarking law, or the application of such a law, that limits or restricts
a claimant's use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold,
easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.
(6) Program or activity
The term “program or activity” means all of the operations of any entity as described in paragraph (1) or (2) of section
2000d-4a of this title.
(7) Religious exercise
(A) In general
The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of
religious belief.
(B) Rule
The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious
exercise of the person or entity that uses or intends to use the property for that purpose.
CREDIT(S)
(Pub.L. 106-274, § 8, Sept. 22, 2000, 114 Stat. 806.)
Notes of Decisions (38)
42 U.S.C.A. § 2000cc-5, 42 USCA § 2000cc-5
Current through P.L. 116-142.
End of Document
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
A52 2
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.