Opposition Brief — Ruben Gutierrez, Petitioner v. Luis V. Saenz, et al.
Supreme Court briefJun 15, 2020
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Nos. 19-8695, 19A1052
IN THE
Supreme Court of the United States
RUBEN GUTIERREZ,
Plaintiff-Appellant,
v.
BRYAN COLLIER, et al.,
Defendants-Appellees.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
and Application for a Stay of Execution
BRIEF IN OPPOSITION
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
MARK PENLEY
Deputy Attorney General
For Criminal Justice
JEFFERSON CLENDENIN
Assistant Attorney General
Counsel of Record
P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 936-1400
jay.clendenin@oag.texas.gov
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
Counsel for Defendants-Appellees
CAPITAL CASE
QUESTIONS PRESENTED
1.
Should this Court grant a writ of certiorari in a case raising only
unexhausted and meritless challenges to the state’s execution protocol that
does not impinge upon any religious exercise, is reasonably related to the
prison system’s obvious and compelling interest in security, and was enacted
with a secular purpose and in response to guidance from this Court?
2.
Should this Court grant a stay of execution where the lower court
properly found there was no substantial likelihood of success on the merits and
where the equities favor the state?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ................................................................................. i
TABLE OF CONTENTS ...................................................................................... ii
TABLE OF AUTHORITIES ............................................................................... iv
BRIEF IN OPPOSITION..................................................................................... 1
STATEMENT OF THE CASE ............................................................................ 3
I.
Facts Concerning Gutierrez’s Murder of Escolastica Harrison and the
Finding of Guilt .......................................................................................... 3
II.
Facts Relevant to Punishment and the Sentencing Phase of Trial ........ 4
III.
A.
The State’s evidence ........................................................................ 4
B.
Gutierrez’s evidence ......................................................................... 5
1.
The State’s punishment case................................................. 5
2.
Plaintiff’s punishment evidence ............................................ 6
Course of State and Federal Proceedings ..................................................5
REASONS FOR DENYING THE PETITION AND A STAY .............................9
ARGUMENT ...................................................................................................... 11
I.
The Standard Governing Stay Requests ................................................ 11
II.
Gutierrez Is Not Entitled to a Petition for a Writ of Certiorari ............ 12
III.
The Fifth Circuit Properly Held Gutierrez Failed to Make a Strong
Showing that He Is Likely to Succeed on the Merits of His Chaplain
Claims ....................................................................................................... 13
A.
Background .................................................................................... 13
ii
IV.
B.
Gutierrez’s Chaplain claims are unexhausted ............................. 14
C.
The Religious Land Use and Institutionalized Persons Act
(RLUIPA) Claim............................................................................. 18
D.
The Free Exercise Clause claim .................................................... 28
A Stay of Execution Would Further Delay Enforcement of a Long-Final
Judgment .................................................................................................. 32
CONCLUSION ................................................................................................... 33
iii
TABLE OF AUTHORITIES
Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004) ......................................... 18, 22
Am. Legion v. Am. Humanist Assoc., 139 S. Ct. 2067 (2019) .......................... 31
Barefoot v. Estelle, 463 U.S. 880 (1983) ............................................................ 11
Beard v. Banks, 548 U.S. 521 (2006) ................................................................ 28
Booth v. Churner, 532 U.S. 731, 739 (2001) ..................................................... 15
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)
............................................................................................................................. 32
Cutter v. Wilkinson, 544 U.S. 709 (2005)........................................ 23, 24, 25, 27
Dillon v. Rogers, 596 F.3d 260 (5th Cir. 2010) ................................................. 16
Dugger v. Johnson, 485 U.S. 945 (1988) ........................................................... 12
Garcia v. Castillo, 431 F. App’x 350 (5th Cir. 2011) ........................................ 12
Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) ..................................................... 25
Gonzalez v. Seal, 702 F.3d 785 (5th Cir. 2012) ................................................ 15
Hill v. McDonough, 547 U.S. 573 (2006) .......................................................... 11
Hilton v. Braunskill, 481 U.S. 770 (1987) ........................................................ 11
Holt v. Hobbs, 574 U.S. 352 (2015) ................................................. 18, 20, 22, 24
Johnson v. California, 543 U.S. 499 (2005) ...................................................... 31
Jones v. Bock, 549 U.S. 199 (2007) ................................................................... 14
Lewis v. Casey, 518 U.S. 343 (1996).................................................................. 25
Locke v. Davey, 540 U.S. 712 (2004) ................................................................. 32
iv
Murphy v. Collier, 139 S. Ct. 1475 (2019) ................................................. passim
Murphy v. Collier, 942 F.3d 704 (5th Cir. 2019) ....................................... passim
Murphy v. Collier, 919 F.3d 913 (5th Cir. 2019) ........................................ 16, 19
Murphy v. Collier, 423 F. Supp. 3d 355 (S.D. Tex. Nov. 7, 2019) ............. 22, 30
Murphy v. Collier, 376 F. Supp. 3d 734 (S.D. Tex. 2019) ................................ 16
Nelson v. Campbell, 541 U.S. 637 (2004)........................................ 11, 12, 15, 16
Nken v. Holder, 556 U.S. 418 (2009) ................................................................. 11
O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) ............................................ 28
Ross v. Blake, 136 S. Ct. 1850 (2016) .......................................................... 15, 17
Town of Greece, N.Y. v. Galloway, 572 U.S. 565 (2014)................................... 21
Turner v. Safley, 482 U.S. 78 (1987) ..................................................... 28, 29, 30
Udey v. Kastner, 805 F.2d 1218 (5th Cir. 1986) ............................................... 25
Woodford v. Ngo, 548 U.S 81 (2006) ................................................................. 14
Wright v. Hollingsworth, 260 F.3d 357 (5th Cir. 2001) ................................... 16
Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014) ................................ 21, 30
Statutes and Rules
42 U.S.C. § 1997e(a)........................................................................................... 15
42 U.S.C. § 2000cc-1(a) ...................................................................................... 18
Sup. Ct. R. 10 ..................................................................................................... 12
Sup. Ct. R. 14.1(h) .............................................................................................. 12
Tex. Gov’t Code § 501.008 (West 2020) ............................................................. 16
v
BRIEF IN OPPOSITION
The Defendants-Appellees respectfully submit this brief in opposition to
the petition for a writ of certiorari and application for a stay of execution filed
by Ruben Gutierrez.
Plaintiff-Appellant Ruben Gutierrez was convicted and sentenced to
death twenty-one years ago for the murder of eighty-five-year-old Escolastica
Harrison. Gutierrez is scheduled to be executed after 6:00 p.m. (Central Time)
on June 16, 2020. Gutierrez has repeatedly and unsuccessfully challenged his
conviction and sentence in state and federal court. He has exhausted his
postconviction remedies, including twice unsuccessfully seeking postconviction
DNA testing in state court.
Gutierrez filed an amended civil-rights complaint in the district court
alleging that Texas’s postconviction DNA testing procedures facially and as
authoritatively construed by the Texas Court of Criminal Appeals (CCA)
violate procedural due process—his DNA claims. ROA.598–611. 1 Gutierrez
also alleged that the Texas Department of Criminal Justice’s (TDCJ) revised
execution protocol violates his constitutional and statutory rights because it
permits only TDCJ security personnel, not chaplains, inside the execution
room—his Chaplain claims. ROA.611–15.
1
“ROA” refers to the record on appeal filed in the court below.
1
The Defendants-Appellees moved to dismiss Gutierrez’s amended
complaint, ROA.619–706, and the district court granted the motion in part and
denied it in part. ROA.802–32. Thereafter, the district court granted Gutierrez
a stay of execution, although it was entirely unclear which claim the district
court found would likely succeed. ROA.991–93. As the Fifth Circuit properly
held, the district court abused its discretion in doing so. Gutierrez v. Saenz, No.
20-70009, slip op. 1–8 (5th Cir. June 12, 2020).
Relevant here, 2 the district court granted a stay of execution as to
Gutierrez’s Chaplain claims. ROA.993. In doing so, the district court elided the
fact that several jurists have opined that TDCJ’s current execution-room
protocol resolved the prior protocol’s infirmity, and it did not identify any
aspect of the Chaplain claims that were likely meritorious. The Fifth Circuit
properly concluded the district court abused its discretion in granting a stay of
execution because none of Gutierrez’s challenges to TDCJ’s revised execution
protocol were likely to succeed on the merits. Gutierrez v. Saenz, slip op. at 6–
8. In particular, the Fifth Circuit found that the guidance given to TDCJ by
Justice Kavanaugh accurately appraised the issues surrounding claims like
Gutierrez’s. Id. at 7. The Fifth Circuit also concluded Gutierrez was not
Gutierrez has waived his challenge to Texas’s postconviction DNA testing
statute.
2
2
entitled to a stay because the balance of equities weighed against such relief.
Id. at 8.
Gutierrez now challenges the Fifth Circuit’s opinion and requests a stay
of execution. Gutierrez fails to identify any error in the Fifth Circuit’s opinion,
and he fails to satisfy his burden to justify a stay of execution.
STATEMENT OF THE CASE
I.
Facts Concerning Gutierrez’s Murder of Escolastica Harrison
and the Finding of Guilt
The evidence shows that the [eighty-five]-year-old victim
kept approximately $600,000 in cash in her home which also
served as an office for a mobile home park she owned and
managed. The victim had befriended [Gutierrez] and [Gutierrez]
knew the victim kept a lot of cash in her home office.
[Gutierrez] developed a plan to steal the victim’s money. On
September 5, 1998, the [twenty-one]-year-old [Gutierrez] and an
accomplice, whom the victim did not know, went into the victim’s
home/office to carry out the plan. When [Gutierrez] and the
accomplice left with the victim’s money, the victim was dead. She
had been beaten and stabbed numerous times.
[Gutierrez] claimed in his third statement to the police that
“we” (he and the accomplice) had two different types of
screwdrivers when they entered the victim’s home/office to steal
her money. [Gutierrez] also claimed that the initial plan was for
the accomplice to lure the victim out of her home/office through the
front by some innocent means at which time [Gutierrez] would go
in through the back and take the victim’s money without the victim
seeing him. This plan was frustrated when the victim saw
[Gutierrez] enter through the front door while the accomplice was
still inside with her. [Gutierrez] claims that soon after this, the
accomplice began to beat, kick, and stab the victim with a
screwdriver while [Gutierrez] got her money. [Gutierrez] did
nothing to prevent the accomplice from attacking the victim.
3
The medical examiner testified that the victim suffered
various defensive wounds indicating that she struggled for her life
and tried to “ward off blows or attacks of some sort.” The medical
examiner also testified that the victim suffered approximately
thirteen stab wounds, caused by two different instruments—one
“almost certainly” a flat head screwdriver and the other possibly a
Phillips head screwdriver. The victim died from “massive blows to
the left side of the face.”
Gutierrez v. State, No. AP-73,462, slip op. at 2–3 (Tex. Crim. App. Jan.
16, 2002).
II.
Facts Relevant to Punishment and the Sentencing Phase of Trial
A.
The State’s evidence
At punishment, the prosecution presented evidence of
[Gutierrez’s] involvement with the criminal justice system since he
was 14-years old. As a juvenile, [Gutierrez] committed several
burglaries, he assaulted a police officer, and he threatened to kill
a teacher and a security officer. Attempts to rehabilitate
[Gutierrez] in various juvenile detention facilities were
unsuccessful. [Gutierrez] was a disciplinary problem in these
facilities and he often escaped from them.
As an adult, [Gutierrez] committed various misdemeanor
offenses. He also was convicted of forgery. While doing time in
Cameron County Jail on this state jail conviction, [Gutierrez]
instigated an “almost riot” because county jail employees would
not give him any Kool-Aid. Shortly thereafter [Gutierrez]
complained about cold coffee and threw it at a guard.
While awaiting trial for this offense, [Gutierrez] was
assigned to the “high risk” area of the Cameron County Jail from
where [Gutierrez], the accomplice, and another individual
attempted an escape during which [Gutierrez] told a guard not to
interfere or he would be “shanked.” Immediately following the
jury’s guilt/innocence verdict in the instant case, [Gutierrez] said
that he might kill an assistant district attorney.
4
Id. at 6.
B.
Gutierrez’s evidence
Dr. Jonathan Sorenson, an expert on future dangerousness, testified
regarding the actuarial method of assessing an inmate’s potential for future
danger. 24 RR 4–15. He stated that data indicates that murderers make the
best inmates and that inmates incarcerated for homicide had a very low
likelihood of committing another one. 24 RR 17, 19–22. Moreover, Dr. Sorenson
testified that an inmate’s age was the best predictor of future dangerousness
and that a twenty-one-year-old inmate with a prior criminal record was not
more than likely to commit violent acts in the future. 24 RR 27.
The defense also presented the testimony of Gutierrez’s aunt, Hilda
Garcia who testified that Gutierrez was easy-going and a responsible husband
and father. 24 RR 49–56. She also testified that Gutierrez was lovable, caring,
and helpful to people who needed assistance. 24 RR 57. After considering this
evidence, and “based on the jury’s findings at the punishment phase, the trial
judge sentenced [Gutierrez] to death.” Ex parte Gutierrez, 337 S.W.3d at 888.
III.
Course of State and Federal Proceedings
Gutierrez’s conviction was affirmed on direct appeal by the CCA.
Gutierrez v. State, slip op. 1–21. The CCA thereafter denied Gutierrez state
habeas relief. Ex parte Gutierrez, No. WR-59,552-01, 2008 WL 2059277, at *1
(Tex. Crim. App. May 14, 2008).
5
Gutierrez then filed a federal habeas petition. Petition 1–25, Gutierrez v.
Stephens, No. 1:09-CV-22 (S.D. Tex. Jan. 26, 2009), ECF No. 1. Instead of
ruling on Gutierrez’s petition, the district court stayed the proceeding to allow
Gutierrez to return to state court and pursue additional claims. Order,
Gutierrez v. Stephens, No. 1:09-CV-22 (S.D. Tex. Apr. 28, 2009), ECF No. 12.
While
back
in
state
court,
Gutierrez
unsuccessfully
sought
postconviction DNA testing. Ex parte Gutierrez, 337 S.W.3d at 901–02. He also
unsuccessfully sought state habeas relief; his subsequent application denied as
abusive. Order, Ex parte Gutierrez, No. WR-59,552-02 (Tex. Crim. App. Aug.
24, 2011).
After the state litigation ended, the district court reopened the federal
habeas proceeding and denied Gutierrez relief and a certificate of appealability
(COA). Mem. Op. & Order 1–76, Gutierrez v. Stephens, No. 1:09-CV-22 (S.D.
Tex. Oct. 3, 2013), ECF No. 44. Gutierrez then sought a COA from the United
States Court of Appeals for the Fifth Circuit, but his request was denied.
Gutierrez v. Stephens, 590 F. App’x 371, 384 (5th Cir. 2014). This Court later
denied him certiorari review. Gutierrez v. Stephens, 136 S. Ct. 573 (2015).
The state trial court then set a date for Gutierrez’s execution. Order
Setting Execution, State v. Gutierrez, No. 98-CR-1391 (107th Dist. Ct.,
Cameron County, Tex. Apr. 11, 2018). About a month and a half before this
execution date, Gutierrez’s federally-appointed counsel moved to withdraw
6
from the case. Mot. Withdraw & Appoint Substitute Counsel, Gutierrez v.
Davis, No. 1:09-CV-22 (S.D. Tex. July 24, 2018), ECF No. 56. New counsel were
appointed and a stay of execution entered to allow them time to gain
familiarity with the case. Order, Gutierrez v. Davis, No. 1:09-CV-22 (S.D. Tex.
Aug. 22, 2018), ECF No. 79. The Fifth Circuit refused to vacate the stay.
Gutierrez v. Davis, No. 18-70028, slip op. 1–3 (5th Cir. Sept. 10, 2018).
After the federal stay expired, the state trial court again set an execution
date for Gutierrez. Order Setting Execution, State v. Gutierrez, No. 98-CR-1391
(107th Dist. Ct., Cameron County, Tex. May 1, 2019). The CCA stayed this
execution date on state law matters concerning the warrant of execution. In re
Gutierrez, No. WR-59,552-03, 2019 WL 5418389, at *1 (Tex. Crim. App. Oct.
22, 2019); see also In re Gutierrez, No. WR-59,552-03, 2020 WL 915300, at *1
(Tex. Crim. App. Feb. 26, 2020).
About a month and a half after the second execution date was set,
Gutierrez again moved for postconviction DNA testing. Mot. Post-Conviction
DNA Testing, State v. Gutierrez, No. 98-CR-1391 (107th Dist. Ct., Cameron
County, Tex. June 14, 2019). The trial court denied his request and the CCA
affirmed. Gutierrez v. State, No. AP-77,089, 2020 WL 918669, at *9 (Tex. Crim.
App. Feb. 26, 2020).
Once more, the state trial court set an execution date for Gutierrez.
Order Setting Execution, State v. Gutierrez, No. 98-CR-1391 (107th Dist. Ct.,
7
Cameron County, Tex. Feb. 28, 2020). About two weeks before the latest
execution date, Gutierrez moved to recall the execution order on state law
grounds, but the request was denied. Order Deny Convict Gutierrez’s Mot.,
State v. Gutierrez, No. 98-CR-1391 (107th Dist. Ct., Cameron County, Tex. May
28, 2020). Gutierrez moved the CCA for a writ of mandamus to recall the
execution order and a stay of execution. Pet. Writ Mandamus, In re Gutierrez,
No. WR-59,552-04 (Tex. Crim. App. June 2, 2020); Mot. Stay Execution, In re
Gutierrez, No. WR-59,552-04 (Tex. Crim. App. June 2, 2020). Gutierrez also
moved the CCA for a stay of execution in light of the COVID-19 pandemic. The
motions were denied.
About a week before his present execution date, Gutierrez filed yet
another subsequent state habeas application. Subsequent Appl. Postconviction Writ of Habeas Corpus, Ex parte Gutierrez, No. 98-CR-1391 (107th
Dist. Ct., Cameron County, Tex. June 8, 2020) (Sub. Appl.). He also moved the
CCA to stay his execution based on this application. Mot. Stay Execution
Pending Disposition of Subsequent Appl. Post-conviction Writ of Habeas
Corpus, Ex parte Gutierrez, No. WR-59,552-04 (Tex. Crim. App. June 8, 2020).
The CCA found that Gutierrez failed to “satisfy the requirements of Article
11.071 § 5 or Article 11.073 [of the Texas Code of Criminal Procedure],” so it
“dismiss[ed] the application as an abuse of the writ without reviewing the
8
merits of the claims raised” and denied his motion for a stay. 3 Order, Ex parte
Gutierrez, No. WR-59,552-04 (Tex. Crim. App. June 12, 2020).
REASONS FOR DENYING THE PETITION AND A STAY
Gutierrez’s amended complaint generally raised two challenges. The
first was to the constitutionality of Texas’s postconviction DNA testing statute,
Chapter 64 of the Texas Code of Criminal Procedure. ROA.598–611. Gutierrez
no longer presses that challenge. The second challenge asked the district court
to invalidate TDCJ’s revised execution protocol and order that TDCJ permit
the presence of a Christian chaplain in the execution room during Gutierrez’s
execution. ROA.611–15. The district court granted Gutierrez a stay of
execution because it found he is likely to succeed as to either his DNA or
Chaplain claims, though it did not find that any specific claim was likely to
succeed. ROA.993. The Fifth Circuit properly held the district court abused its
discretion in granting a stay because Gutierrez is plainly unlikely to succeed
on any of his claims. Gutierrez v. Saenz, slip op. 1–8.
As to Gutierrez’s Chaplain claims, the Fifth Circuit properly held the
district court abused its discretion in granting a stay of execution because the
claims are plainly unlikely to succeed on the merits. Id. at 5–8. In light of the
Pending is Gutierrez’s motion to intervene in another federal civil rights case
concerning the Texas prisons’ response to the COVID-19 pandemic, Polunsky Unit
Pls’s Mot. Intervene, Valentine v. Collier, No. 4:20-CV-1115 (S.D. Tex. May 1, 2020),
ECF No. 76; see also Valentine v. Collier, 140 S. Ct. 1598, 1598–1601 (2020)
(Sotomayor, J., respecting denial of application to vacate stay).
3
9
significant opportunities for Gutierrez to commune with a chaplain on the day
of his execution, his challenge to TDCJ’s revised protocol failed to show he is
likely to succeed in demonstrating the protocol imposes a substantial burden
on his religious exercise. In the courts below and here, Gutierrez framed the
religious exercise he seeks to perform—administration of viaticum, i.e., last
rites—a practice the revised protocol permits him to perform shortly before his
execution. Cert. Pet. 22 (explaining participation of clergy allows the
condemned “to repent and seek spiritual forgiveness before death”); see, e.g.,
ROA.988.
Gutierrez also failed to show he is likely to succeed in proving that the
revised protocol is not the least restrictive means of furthering TDCJ’s
indisputably compelling interest in security. This is especially true because
courts are to give deference to prison administrators in establishing necessary
regulations to maintain security. Moreover, Gutierrez failed to show he is
likely to succeed on his Chaplain claims because, if granted the relief he seeks,
the necessary accommodation would be far reaching and would entangle
federal courts in TDCJ’s management of its execution procedures.
Additionally, the Fifth Circuit properly held the district court abused its
discretion in not finding that the balance of equities weighed against a stay of
execution. Gutierrez identifies no reason to disagree with the Fifth Circuit’s
conclusions.
10
ARGUMENT
I.
The Standard Governing Stay Requests
“Filing an action that can proceed under § 1983 does not entitle
[Gutierrez] to an order staying an execution as a matter of course.” Hill v.
McDonough, 547 U.S. 573, 584 (2006). A request for a stay “is not available as
a matter of right, and equity must be sensitive to the State’s strong interest in
enforcing its criminal judgments without undue interference from the federal
courts.” Id. (citing Nelson v. Campbell, 541 U.S. 637, 649–50 (2004)). Gutierrez
must satisfy all the requirements for a stay, including a showing of a
significant possibility of success on the merits. Id. (citing Barefoot v. Estelle,
463 U.S. 880, 895–96 (1983)). When a stay of execution is requested, a court
must consider:
(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.
Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481
U.S. 770, 776 (1987)). “In a capital case, the movant is not always required to
show a probability of success on the merits, but he must present a substantial
case on the merits when a serious legal question is involved and show that the
balance of the equities[,] i.e., the other three factors[,] weighs heavily in favor
11
of granting a stay.” Garcia v. Castillo, 431 F. App’x 350, 355 (5th Cir. 2011)
(cleaned up).
A federal court must also consider “the State’s strong interest in
proceeding with its judgment” and “attempt[s] at manipulation,” as well as “the
extent to which the inmate has delayed unnecessarily in bringing the claim.”
Nelson, 541 U.S. at 649–50. Indeed, “there is a strong presumption against the
grant of a stay where a claim could have been brought at such a time as to
allow consideration of the merits without requiring entry of a stay.” Id. at 650.
II.
Gutierrez Is Not Entitled to a Petition for a Writ of Certiorari.
While primarily seeking a stay of execution, Gutierrez also seeks a writ
of certiorari. To the extent that declining to issue a stay is a compelling reason
for certiorari review, see Sup. Ct. R. 10, review of such a decision is deferential
and should only be overturned “when the lower court[ has] clearly abused [its]
discretion.” Dugger v. Johnson, 485 U.S. 945, 947 (1988) (O’Connor, J.,
dissenting). Notably, Gutierrez identifies no relevant split among the courts or
any other reason amplifying the need for this Court’s review. Sup. Ct. R.
14.1(h). As discussed below, Gutierrez is not entitled to a stay of execution. For
the same reasons, he is not entitled to a writ of certiorari as to his meritless
claims. His petition should be denied.
12
III.
The Fifth Circuit Properly Held Gutierrez Failed to Make a
Strong Showing that He Is Likely to Succeed on the Merits of His
Chaplain Claims.
In his amended complaint, Gutierrez raised constitutional and statutory
claims challenging TDCJ’s revised execution protocol permitting only security
personnel in the execution room during an execution. 4 ROA.63, 611–15. The
district court granted a stay of execution, apparently finding that Gutierrez is
likely to succeed on one of his Chaplain claims. ROA.993. As discussed below,
the Fifth Circuit properly held the district court abused its discretion in
granting a stay.
A.
Background
In March 2019, this Court stayed the execution of Patrick Murphy based
on his claims challenging TDCJ’s refusal to permit a Buddhist spiritual advisor
in the execution room while permitting Christian or Muslim chaplains to be
present during an execution. Murphy v. Collier, 139 S. Ct. 1475 (2019). Writing
separately, Justice Kavanaugh explained that while the State may not give
special preferences to one religion over another, it may allow “inmates to have
a religious adviser, including any state-employed chaplain, only in the viewing
room, not in the execution room” Id. (Kavanaugh, J., concurring in grant of
Neither Gutierrez nor the district court addressed whether his Chaplain
claims called for mandamus relief beyond a federal court’s jurisdiction. See Waters v.
Texas, 747 F. App’x 259, 260 (5th Cir. 2019).
4
13
stay). That is, while the State may not give some religions special access to the
execution room, it may require that any religious advisor observe the execution
from the viewing room. Id.
TDCJ took Justice Kavanaugh’s advice. It changed its execution protocol
such that chaplains are not permitted to be present in the execution room.
ROA.63. The protocol provides that an inmate may, on the day of the execution,
“have visits with a TDCJ Chaplain(s)[ and] a Minister/Spiritual Advisor who
has the appropriate credentials.” ROA.62. An approved outside spiritual
advisor (i.e., a member of the clergy or an individual approved in accordance
with policy who serves the inmate in a religious capacity but is not a TDCJ
employee) may visit the inmate from 3:00 to 4:00 p.m. on the day of the
execution in a holding area at the Huntsville Unit. ROA.62–63. Chaplains and
an outside spiritual advisor may be present in the witness room immediately
adjacent to the execution room. ROA.63. This policy does not give special
preference to any religion or to religious practice.
B.
Gutierrez’s Chaplain claims are unexhausted.
Although Gutierrez asserts he filed a Step 1 grievance in August 2019,
Cert. Pet. 8–9, TDCJ records indicated he filed only one grievance, in April
2020, regarding his Chaplain claim. ROA.71–74, 971–74. This grievance could
not have satisfied exhaustion because it was filed during the pendency of his
§ 1983 lawsuit, not prior to filing. Jones v. Bock, 549 U.S. 199, 211 (2007).
14
Consequently, Gutierrez failed to exhaust his administrative remedies, and
the district court abused its discretion in effectively presuming administrative
remedies were not available to Gutierrez. See Woodford v. Ngo, 548 U.S 81, 85
(2006) (a prison must exhaust administrative remedies even where the relief
sought “cannot be granted by the administrative process”). As the Defendants
argued in their motion to dismiss and in the court below, Gutierrez’s failure to
exhaust his Chaplain claims required dismissal.
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). Exhaustion is mandatory
“irrespective of the forms of relief sought and offered through administrative
avenues.” Booth v. Churner, 532 U.S. 731, 739, 740–40 n.6 (2001); see Gonzalez
v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (“[T]here can be no doubt that prefiling exhaustion of [the] prison grievance processes is mandatory.” (citing
Woodford, 548 U.S. at 85); Jones, 549 U.S. at 211). The PLRA’s exhaustion
requirement applied to Gutierrez’s challenge to TDCJ’s execution procedure.
See Nelson, 541 U.S. at 643 (concluding that a prisoner’s complaint about the
procedure used to find a vein during the execution process was a § 1983 civil
rights complaint and subject to the PLRA exhaustion requirement); Ross v.
15
Blake, 136 S. Ct. 1850, 1862 (2016) (“Courts may not engraft an unwritten
‘special circumstances’ exception onto the PLRA’s exhaustion requirement.”).
Gutierrez’s email correspondence with TDCJ General Counsel did not
satisfy the mandatory exhaustion requirement under PLRA; he could only
exhaust via TDCJ’s grievance process. Tex. Gov’t Code § 501.008 (West 2020);
see Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010) (“Under our strict
approach,
we
have
found
that
mere
‘substantial
compliance’
with
administrative remedy procedures does not satisfy exhaustion.”). And to
properly exhaust, a prisoner must “pursue the grievance remedy to
conclusion.” Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). This
requires completion of both steps of TDCJ’s grievance process before a
complaint may be filed. Id.; but see Murphy v. Collier, 942 F.3d 704, 709 (5th
Cir. 2019). Because Plaintiff did not exhaust administrative remedies prior to
bringing his Chaplain claims in federal court, PLRA mandates dismissal of the
claims.
Gutierrez argued that this Court’s stay of Patrick Murphy’s execution
implied that exhaustion of his Chaplain claims was either accomplished or
unnecessary. ROA.730–31. However, in both the Fifth Circuit and this Court,
the courts ruled only on the plaintiff’s request for a stay. 5 Murphy v. Collier,
Notably, neither the Fifth Circuit nor the district court explicitly addressed
prior to this Court’s stay of Murphy’s execution the issue of exhaustion of
5
16
139 S. Ct. at 1475; Murphy, 942 F.3d at 709. And a stay of execution is an
equitable remedy. Nelson, 541 U.S. at 649. As explained by Justice Kavanaugh,
the Supreme Court’s stay of Murphy’s execution “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 (Kavanaugh, J., statement respecting grant
of stay). This Court’s order granting a stay should not be construed as silently
overturning its long-standing precedent regarding exhaustion under the PLRA
but rather as what the Court viewed as a necessary, equitable action taken
regarding a newly-arisen challenge to Texas’s execution protocol and in the
interest of avoiding repetitious challenges to a policy it found impermissible.
See id. Gutierrez offered no reason to conclude that challenges to a State’s
execution protocol as it relates to the presence of spiritual advisors—and only
those challenges—are entirely exempt from the mandatory PLRA exhaustion
requirement. See Ross, 136 S. Ct. at 1858.
Importantly, Gutierrez’s failure to attempt exhaustion prior to filing his
complaint relinquished his opportunity to raise, and deprived TDCJ the
administrative remedies but only the timeliness of his request for a stay. Murphy v.
Collier, 919 F.3d 913, 916 (5th Cir. 2019); Murphy v. Collier, 376 F. Supp. 3d 734, 739
(S.D. Tex. 2019).
17
opportunity to respond to, any questions he might have had seeking to clarify
the extent of his ability to exercise his religious practice—receiving last rites—
on the day of his execution. To the extent there is any lack of clarity in these
proceedings, it is attributable to Gutierrez, not the Defendants. Gutierrez’s
Chaplain claims are unexhausted. Consequently, he cannot succeed on the
merits of the claims and is not entitled to a stay of execution.
C.
The Religious Land Use and Institutionalized Persons Act
(RLUIPA) claim
To justify a stay based on his RLUIPA claim, Gutierrez was required to
show he is likely to succeed in showing the challenged government conduct
substantially burdens his religious exercise. 42 U.S.C. § 2000cc-1(a) (“No
government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution.”); see Holt v. Hobbs, 574 U.S.
352, 361 (2015); Adkins v. Kaspar, 393 F.3d 559, 569–70 (5th Cir. 2004) (a
“substantial burden” is one that truly pressures the adherent to substantially
modify his or her religious behavior). TDCJ’s policy permitting Gutierrez
significant opportunities to commune with a chaplain in the days and hours
before his execution and permitting chaplains and spiritual advisors to attend
an execution in the witness room rather than inside the execution room is not
a substantial burden on Gutierrez’s religious exercise, i.e., receiving his last
rites from a chaplain. ROA.988 (describing the religious exercise he seeks to
18
practice as the “longstanding practice of administering viaticum to those facing
death”). The Fifth Circuit properly held Gutierrez failed to make a strong
showing that he is likely to succeed on the merits of this claim.
Gutierrez provided no support for his assertion that TDCJ’s protocol
providing him opportunities to speak with a chaplain shortly before his
execution and permitting the presence of a chaplain in the witness room—
rather than the execution room—is a substantial burden on his exercise of his
religion. ROA.614–15. Gutierrez stated that he wishes to have a chaplain
present in the execution room during the execution “to guide him to the
afterlife.” ROA.789. He explained the purpose of the chaplain’s presence as
being necessary to administer last rites, i.e., viaticum. ROA.789; Cert. Pet. 12.
But, again, he has not explained why that rite cannot be performed during the
many opportunities he will have to commune with a TDCJ chaplain in the days
and hours before his execution or how speaking with a chaplain from the
holding cell will prevent him from doing so. 6 ROA.62–63; see Murphy, 942 F.3d
at 706 (“The policy, however, does not place any limitation on visits by TDCJemployed clergy, who appear to have access to an inmate until the moment he
Gutierrez asserts the Fifth Circuit improperly told him what his religion is and
what practice is important to it. Cert. Pet. 19. Not so. As discussed above, the Fifth
Circuit appropriately determined Gutierrez failed to satisfy his burden under
RLUIPA of demonstrating TDCJ’s protocol imposes a substantial burden on his
religious exercise. Gutierrez v. Saenz, slip op. 7–8.
6
19
enters the execution chamber.”); see also Cert. Pet. 6 (asserting the interest in
having clergy available to “hear a person’s confession and offer reconciliation”
up to the moment of death).
In Holt, this Court found a prison grooming policy that completely
prevented the petitioner from exercising an act dictated by his faith—wearing
a beard—was a substantial burden on his religious exercise and, therefore,
violated RLUIPA. 574 U.S. at 361. Here, TDCJ’s revised execution protocol will
not prevent Gutierrez from engaging in the religious exercise he wishes to—
communing with a chaplain and receiving his last rites. ROA.62–63 (TDCJ’s
revised protocol providing for visits with a chaplain or spiritual advisor on the
day of, and shortly before, the execution); Murphy, 942 F.3d at 706. The
protocol does not require Gutierrez to, instead, “engage [only] in other forms of
religious exercise.” Holt, 574 U.S. at 362 (holding that district court erred in
concluding prison’s grooming policy did not substantially burden the plaintiff’s
religious exercise because he was permitted to engage in other forms of
religious exercise, e.g., use of a prayer rug and observance of religious holidays)
(emphasis added). Instead, under the revised protocol, Gutierrez may engage
in the same religious exercise shortly before his execution.
Gutierrez suggests that his religion dictates that inmates facing
execution receive last rites as they are executed because clergy have
historically participated in executions. Cert. Pet. 23. Gutierrez’s argument
20
ignores that a chaplain will participate in his execution. His argument also
conflates historical practice with the dictates of his religion. Cert. Pet. 23. That
condemned inmates have been provided clergy—as Gutierrez will be—does not
shine any light on whether Gutierrez’s religion requires administration of last
rites to individuals as they are dying, not shortly before. Such an assertion
would appear baseless, as countless Catholics have not been afforded the
opportunity to exercise that religious practice before their death.
Gutierrez relies on Establishment Clause precedent for the proposition
that a chaplain must be permitted to be present in the execution room during
his execution because such a practice is historically rooted. Cert. Pet. 23
(quoting Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 603 (2014) (Alito, J.,
concurring)). But whether historical practice, e.g., holding prayer during a city
meeting, is probative of whether government action can be interpreted as
compelling a religious practice does not help Gutierrez to show that the
religious exercise he wishes to practice is required under the Constitution or
his religion to be permitted in the way he asserts it must be. Again, Gutierrez
will be permitted to exercise the religious practice he wishes to. The protocol
does not prevent him from doing so. See Yellowbear v. Lampert, 741 F.3d 48,
56 (10th Cir. 2014) (“This isn’t a situation where the claimant is left with some
21
degree of choice in the matter and we have to inquire into the degree of the
government’s coercive influence on that choice.”). 7
Gutierrez also asserts the Fifth Circuit improperly focused on whether
he has alternative means for exercising his religious practice. Cert. Pet. 21.
But, as discussed above, the Fifth Circuit did not do so. Instead, the court
appropriately concluded—consistently with Holt—that the same religious
exercise Gutierrez seeks to practice can be performed shortly before his
execution. Gutierrez v. Saenz, slip op. 7–8. It did not hold that Gutierrez must
accept an alternative.
Consequently, Gutierrez failed to satisfy his burden of showing he is
likely to succeed in demonstrating that TDCJ’s policy imposes a substantial
burden on his religious exercise or will truly force him to substantially modify
his religious behavior. See Murphy, 139 S. Ct. at 1484 (“[N]ot every religion
would draw a distinction between meeting with a clergyman shortly before
death and one precisely at the moment of death.”) (Alito, J., dissenting from
grant of stay); Holt, 574 U.S. at 361–62; Adkins, 393 F.3d at 570. This is
evident, as several jurists have opined that the change to TDCJ’s prior protocol
resolved its infirmity. Murphy, 139 S. Ct. at 1476–77 (Kavanaugh, J., joined
The Tenth Circuit’s holding in Yellowbear is congruent with Holt in that each
case addressed prison policies that completely prevented an inmate from performing
a religious exercise. As discussed above, Gutierrez will not be prevented from
communing with, and receiving his last rites from, a chaplain.
7
22
by Roberts, C.J., statement respecting grant of stay) (“[T]he State has a
compelling interest in controlling access to the execution room which means
an inmate likely cannot prevail on a RLUIPA or free exercise claim to have a
religious minister in the execution room, as opposed to the viewing room.”);
Murphy, 942 F.3d at 711 (Elrod, J., dissenting); Murphy v. Collier, 423 F. Supp.
3d 355, 361 (S.D. Tex. Nov. 7, 2019). Therefore, Gutierrez failed to justify a
stay of execution as to his RLUIPA claim. 8
Even if Gutierrez’s allegation suffices to demonstrate TDCJ’s current
protocol imposes a substantial burden on his religious exercise, he failed to
make a strong showing that he is likely to succeed on the basis that the protocol
is not the least restrictive means of furthering TDCJ’s indisputably compelling
interest in maintaining institutional security. Murphy, 139 S. Ct. at 1476
(TDCJ’s interest in controlling access to the execution room is compelling)
(Kavanaugh, J., statement respecting grant of stay). It is also evident, as this
Court has instructed that in applying RLUIPA, courts are to give “due
deference to the experience and expertise of prison and jail administrators in
establishing necessary regulations and procedures to maintain good order,
For the same reason, the district court was incorrect to rely on the recent stay
in Murphy as “raising a similar execution-chamber claim” as Gutierrez’s. ROA.993
(citing Murphy, 942 F.3d at 709). Murphy was most recently granted a stay as to his
pre-execution holding-area claim—a claim Gutierrez does not make. Murphy, 942
F.3d at 708. To the extent Murphy’s litigation does bear on Gutierrez’s Chaplain
claims, it reveals the significant likelihood that his execution-room claims will not
succeed on the merits, as noted above.
8
23
security and discipline, consistent with consideration of costs and limited
resources.” Cutter v. Wilkinson, 544 U.S. 709, 723 (2005). In that respect, this
case is also unlike Holt where the Court declined to give “unquestioning
deference” to the prison administrator’s “hard to swallow” justification—
preventing inmates from hiding contraband in a short beard—for the grooming
policy. 574 U.S. at 364. Here, the prison has a clearly compelling interest “in
tightly controlling access to an execution room in order to ensure that the
execution occurs without any complications, distractions, or disruptions,” and
Gutierrez provides no valid reason to doubt the legitimacy of the purpose of the
revised protocol. See Murphy, 139 S. Ct. at 1475–76 (Kavanaugh, J.,
concurring).
To grant a stay would be to grant every prisoner an inalienable right to
demand his preferred spiritual advisor’s access to the execution room. And it
would impose on every State’s prison system the obligation to accommodate
any such request, notwithstanding any logistical or practical limitations. Holt,
574 U.S. at 363 (RLUIPA requires a court to scrutinize the asserted harm of
granting exemptions to a religious claimant and to look to the marginal
interest in enforcing the challenged government action). The relief is
unworkable on its face, which is why this Court has never before endorsed the
obligation Gutierrez seeks to impose on TDCJ. That TDCJ chose to follow
Justice Kavanaugh’s advice is not a basis on which to disregard the significant
24
deference owed to prison administrators. See Murphy, 139 S. Ct. at 1476
(Kavanaugh, J., statement respecting grant of stay); see also Cutter, 544 U.S.
at 726 (“Should inmate requests for religious accommodations . . . jeopardize
the effective functioning of an institution, the facility would be free to resist
the imposition.”).
Moreover, such an accommodation would almost surely entangle federal
courts in TDCJ’s screening and approval of requested spiritual advisors, e.g.,
in the event TDCJ determines a particular spiritual advisor does not meet its
criteria. See Cutter, 544 U.S. at 726; Lewis v. Casey, 518 U.S. 343, 362 (1996)
(federal courts are not to become “enmeshed in the minutiae of prison
operations”); Gates v. Cook, 376 F.3d 323, 338 (5th Cir. 2004) (federal courts
“are not to micromanage state prisons.”); cf. Udey v. Kastner, 805 F.2d 1218,
1221 (5th Cir. 1986) (“We believe that the probable proliferation of claims, and
the concomitant entanglement with religion that processing multiple claims
would require, does constitute a problem that the state has a good reason to
avoid.”) (emphasis in original). 9 Again, TDCJ’s choice to permit Gutierrez
significant opportunities to commune with a chaplain in the time leading up to
his execution and to allow chaplains and spiritual advisors in the witness room
For the same reasons, Gutierrez is not entitled under the PLRA to the relief he
seeks because “[p]rospective relief in any civil action with respect to prison conditions
shall extend no further than necessary to correct the violation of the Federal right of
a particular plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1)(A).
9
25
cannot be the basis of disregarding the deference owed to the prison system.
See Murphy, 139 S. Ct. at 1476 (Kavanaugh, J., statement respecting grant of
stay). Gutierrez failed to make a strong showing that he is likely to succeed in
overcoming that deference.
Gutierrez asserts the Defendants have not proven that the revised
protocol is not the least restrictive means of satisfying TDCJ’s security
concerns. 10 Cert. Pet. 21–22. As this Court is aware, TDCJ’s security concerns
are manifold. See Murphy, 139 S. Ct. at 1476 (referencing affidavit of the
Director of TDCJ’s Correctional Institutions Division detailing the compelling
interests in controlling access to the execution room); Def.s-Appellants’ App’x
4, at 64–65, 80–81, Murphy v. Collier, No. 19-70020 (5th Cir. Nov. 8, 2019) (the
Director’s explanation of the security risks that allowing non-TDCJ personnel
would create, including ensuring that individuals who attend an execution in
the execution room are able “to conduct themselves in a stressful situation with
control, professionalism and good judgment” and explaining that approving
personnel for that purpose “cannot be duplicated to consider a person who is
not a TDCJ employee”). 11 Gutierrez is flatly wrong that the Defendants have
It is not the Defendants burden to disprove Gutierrez’s entitlement to a stay.
It is his burden to show that his claims are likely to succeed on the merits.
10
Additionally, TDCJ’s security interests include maintaining the anonymity of
the execution team, which could be jeopardized by the presence of an outsider during
the execution process. Def.s-Appellants’ App’x 4, at 64–65, 80–81, Murphy v. Collier,
No. 19-70020 (5th Cir. Nov. 8, 2019)
11
26
only identified one reason—denying Patrick Murphy a spiritual advisor in the
execution room—justifying its revised protocol. Such an argument ignores the
plain text of the protocol and the obvious reason—explained by Justice
Kavanaugh—for its revision. The protocol explains that “[o]nly TDCJ security
personnel shall be permitted in the execution chamber.” ROA.63. As Justice
Kavanaugh aptly explained, because TDCJ has a compelling interest in
controlling access to the execution room, a remedy for that concern “would be
to allow religious advisers only into the viewing room.” Murphy, 139 S. Ct. at
1476 (Kavanaugh, J., concurring). It is exceedingly disingenuous to suggest
TDCJ revised its protocol for the sole purpose of depriving Patrick Murphy of
the presence of his spiritual advisor as opposed to the obvious reason—creating
a protocol that would be permissible in response to this Court’s action and
guidance.
TDCJ has—consistent with guidance from this Court—designed the
least restrictive means of furthering its obvious and compelling interest in
security, which has been signaled as resolving the infirmity in TDCJ’s prior
protocol. Murphy, 139 S. Ct. at 1475–76 (Kavanaugh, J., concurring); id. at
1476 (Kavanaugh, J., statement respecting grant of stay). Gutierrez’s request
concerns the weighty process of carrying out an execution. RLUIPA does not
elevate accommodation of religious observances over a prison’s need to
maintain order and safety, especially in the absence of any evidence that
27
Gutierrez’s religious rite cannot be performed with a chaplain in the days and
hours prior to his execution. Cutter, 544 U.S. at 722; Murphy, 942 F.3d at 706.
The Fifth Circuit properly held the district court abused its discretion in not
holding Gutierrez to his burden of making the requisite showing under
RLUIPA and in holding he is not entitled to a stay of execution. Gutierrez v.
Saenz, slip op. 7–8.
***
No State provides more robust protections to religious liberty than does
Texas, and Texas treats among its highest interests its solemn obligations to
safeguard the free exercise of religion. E.g., Tex. Civ. Prac. & Rem. Code
110.001 (et seq.) (Texas Religious Freedom Restoration Act). Texas further has
a compelling interest in the security and integrity of its capital punishment
procedures. Neither the Constitution nor RLUIPA requires Texas to overlook
that interest—particularly where, as here, Texas’s procedures protect the free
exercise of religion, and Gutierrez does not point to any infringement on the
free exercise of religion.
D.
The Free Exercise Clause claim
Gutierrez also claims TDCJ’s revised protocol violates his rights under
the Free Exercise Clause. As the Fifth Circuit properly held, he failed to justify
a stay as to this claim because it is unlikely to succeed. Gutierrez v. Saenz, slip
op. 6–7.
28
Free Exercise claims that challenge prison policies are reviewed under
the deferential standard of Turner v. Safley, 482 U.S. 78, 89–90 (1987). 12 See
Murphy, 139 S. Ct. at 1482–83 (Alito, J., dissenting from stay). The Turner
reasonableness test includes the following factors:
First, is there a “valid, rational connection between the prison
regulation and the legitimate governmental interest put forward
to justify it”? Second, are there “alternative means of exercising
the right that remain open to prison inmates”? Third, what
“impact” will “accommodation of the asserted constitutional
right . . . have on guards and other inmates, and on the allocation
of prison resources generally”? And, fourth, are “ready
alternatives” for furthering the governmental interest available?
Beard v. Banks, 548 U.S. 521, 529 (2006) (quoting Turner, 482 U.S. at 89–90).
The Fifth Circuit properly found TDCJ’s revised policy permissible under
Turner. Gutierrez v. Saenz, slip op. 6.
Gutierrez alleged that TDCJ’s revised execution protocol prevents him
from exercising his religion by receiving last rites from a chaplain. ROA.611–
13. This claim plainly failed to satisfy Turner. First, Gutierrez failed to show
he is likely to establish that TDCJ’s revised protocol is not rationally connected
to its obvious interest in security. See Turner, 482 U.S. at 89; Gutierrez v.
Saenz, slip op. 6. As discussed above, the revised protocol is clearly connected
to its compelling interest in controlling access to the execution room, and any
Gutierrez disputes that Turner applies to his Free Exercise Clause claim, but
his assertion is foreclosed. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)
(applying Turner to a Free Exercise Clause claim in the prison context).
12
29
suggestion that it is not blinks reality. Murphy, 139 S. Ct. at 1475–76
(Kavanaugh, J., concurring). And, again, if Gutierrez were granted the relief
he seeks, TDCJ would be forced to either revert to its prior, impermissible,
protocol or allow spiritual advisors from any and all conceivable denominations
to attend executions in the execution room. TDCJ has a valid interest—and a
compelling one—in not allowing outsiders into such a highly-charged
environment. Def.s-Appellants’ App. 4, at 64–65, 80–81, Murphy v. Collier, No.
19-70020 (5th Cir. Nov. 8, 2019). Gutierrez’s refusal to recognize that obvious
interest reflected by the protocol does not satisfy his burden under Turner.
Second, he failed to show he is likely to establish that there are no
alternative means for him to exercise his rights (i.e., administration of last
rites), as discussed above. ROA.63. Indeed, Gutierrez is not forced to accept an
alternative means. He will be allowed to speak with a chaplain shortly before
his execution. That is, he has been, and will continue be given, the “opportunity
to repent and seek spiritual forgiveness.” Cert. Pet. 22.
Third, Gutierrez failed to show he is likely to succeed on the merits
considering the impact the accommodation—i.e., the “ripple effect”—would
have on prison resources discussed above. Turner, 482 U.S. at 90.
Lastly, as discussed above, Gutierrez failed to show he is likely to
succeed in showing the existence of a readily available alternative to its revised
procedure, which would require a potentially hastened approval process for
30
outside spiritual advisors of any and all denominations and would potentially
jeopardize the execution process. See Murphy, 139 S. Ct. at 1475–76
(Kavanaugh, J., concurring); Def.s-Appellants’ App. 4, at 64–65, 80–81,
Murphy v. Collier, No. 19-70020 (5th Cir. Nov. 8, 2019). And again, historical
practice does not provide insight into whether Gutierrez’s religion or the
Constitution require him to receive his last rites in the execution room as
opposed to shortly before his execution. See Yellowbear, 741 F.3d at 56.
Even if strict scrutiny applies, Gutierrez cannot make a strong showing
that he is likely to succeed on the merits. Again, this appears evident, as
several jurists have opined that TDCJ’s change to its execution protocol
resolved the prior protocol’s constitutional infirmity. Murphy v. Collier, 139 S.
Ct. at 1475–76 (Kavanaugh, J., statement respecting grant of stay); Murphy v.
Collier, 942 F.3d at 711 (Elrod, J., dissenting); Murphy v. Collier, 423 F. Supp.
3d at 361. TDCJ’s revised protocol has a secular purpose—it was enacted
shortly after this Court Court stayed Patrick Murphy’s execution. The district
court noted “it appear[ed] that TDCJ acted” with an obvious secular motivation
in revising the protocol. ROA.827. Indeed, Gutierrez certainly failed to make a
strong showing that he is likely to succeed in establishing that the revision to
the protocol arose, instead, spontaneously out of an invidious hostility toward
31
religion and only coincidentally after this Court found the prior policy
impermissible. 13 Such an assertion would, again, blink reality.
For much the same reasons discussed, supra, Section III(C), Gutierrez
cannot show a strong likelihood that his Free Exercise Clause claim would
succeed on the merits even under a strict scrutiny analysis. See Johnson v.
California, 543 U.S. 499, 505 (2005). The district court acknowledged TDCJ’s
interest in security is compelling. ROA.830. And for the reasons discussed
above, Gutierrez is not likely to show that TDCJ’s revised policy is not
narrowly tailored to meet that obviously compelling interest. Supra, Section
III(C). The Fifth Circuit properly concluded Gutierrez was not entitled to a stay
of execution as to his Free Exercise Clause claim. Gutierrez v. Saenz, slip op.
5–6.
As discussed above, TDCJ’s protocol is rationally related to its legitimate
penological interest in security and an orderly execution process. TDCJ’s
protocol allows Gutierrez many opportunities to meet with a chaplain shortly
before the execution, and it permits a chaplain to be present in the witness
room. ROA.63. Additionally, Gutierrez failed to show he will be forced to choose
For the same reason, Gutierrez cannot establish an Establishment Clause
violation under American Legion, by showing TDCJ’s protocol revision was motivated
by discriminatory intent or was motivated to “scrub[ ] away any reference to the
divine,” rather than a secular motivation. Am. Legion v. Am. Humanist Assoc., 139 S.
Ct. 2067, 2085–87 (2019) (plurality op.).
13
32
between his religious exercise and some benefit. See Locke v. Davey, 540 U.S.
712, 720 (2004). The incidental effect of a chaplain’s presence in the witness
room rather than in the execution room will not cause Gutierrez to
substantially alter his religious exercise, especially in light of his many
opportunities to exercise his religious practice with a chaplain shortly before
his execution. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 531 (1993). For the reasons discussed above, the Fifth Circuit
properly held Gutierrez failed to establish he is likely to succeed on the merits.
Gutierrez v. Saenz, slip op. 6–7.
IV.
A Stay of Execution Would Further Delay Enforcement of a LongFinal Judgment.
Lastly, the Fifth Circuit properly found Gutierrez failed to justify a stay
that would further delay enforcement of a long-final judgment. Gutierrez v.
Saenz, slip op. 8. Indeed, Gutierrez failed to show the Defendants and the
victims would not be substantially harmed by a stay, that the public interest
favors a stay, or that the balance of equities tilts in his favor.
Gutierrez has failed to show his Chaplain claims are likely to succeed or
that he would be irreparably injured absent a stay regarding his Chaplain
claims. As discussed above, TDCJ will—consistent with its protocol—permit
Gutierrez to visit with a chaplain on the day of the execution, and a chaplain
may be present during the execution in the witness room. ROA.63. Gutierrez
33
has not explained why the religious rite he wishes to receive cannot be received
in the time shortly before his execution. He will have significant opportunities
to exercise his religious rite with a chaplain shortly before his execution, unlike
eighty-five-year-old Escolastica Harrison. Consequently, the potential harm
has been significantly mitigated and is not substantial enough to overcome the
State’s and victims’ interest “in the timely enforcement of a sentence.” Hill,
547 U.S. at 548. For the same reasons, Gutierrez fails to show that a stay is in
the public interest.
Notably, while Gutierrez asserts he diligently pursued his Chaplain
claims, he did not exhaust them. And, as he acknowledges, he sought to stay
his proceedings in the district court to await the state court’s decision in his
DNA appeal, which delayed resolution of his Chaplain claims. The Fifth Circuit
properly rejected Gutierrez’s request for a stay.
CONCLUSION
Gutierrez fails to identify any error in the Fifth Circuit’s opinion.
Gutierrez’s petition and application for a stay of execution should be denied.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
MARK PENLEY
Deputy Attorney General
34
For Criminal Justice
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
s/ Jay Clendenin
JAY CLENDENIN
Assistant Attorney General
State Bar No. 24059589
Counsel of Record
Post Office Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1400
jay.clendenin@oag.texas.gov
Attorneys for Defendants-Appellees
35
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