Opposition Brief — Juan Balderas, Petitioner v. Texas

No. 23-1044

IN THE

Supreme Court of the United States

__________________________

JUAN BALDERAS,

Petitioner,

vs.

STATE OF TEXAS,

Respondent.

_________________________

On Petition for Writ of Certiorari to the

Texas Court of Criminal Appeals

___________________________

RESPONDENT’S BRIEF IN OPPOSITION

___________________________

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

JOSH RENO

Deputy Attorney

General for Criminal

Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals

Division

ALI NASSER

Assistant Attorney

General

Counsel of Record

OFFICE OF THE ATTORNEY

GENERAL OF TEXAS

P.O. Box 12548

Austin, Texas 78711

Counsel for Respondent

CAPITAL CASE

QUESTIONS PRESENTED

1.

Whether the Court has jurisdiction over claims

that were disposed of on an adequate and

independent state-law ground?

2.

Whether the Court should impose requirements

on state courts regarding the level of detail they

must provide in summary dismissals under

independent state-law grounds?

3.

Whether the Court should expend its limited

resources to consider highly fact-bound questions

that can be more properly addressed in federal

habeas proceedings?

ii

LIST OF PROCEEDINGS

State v. Balderas, No. 1412826 (179th Dist. Ct., Harris

County, Tex.) (convicted and sentenced to death March

14, 2014)

Balderas v. State, 517 S.W.3d 756 (Tex. Crim. App. 2016)

(affirming death sentence)

Balderas v. Texas, 137 S. Ct. 1207 (Feb. 27, 2017)

(denying petition for writ of certiorari)

In re Balderas, No. WR-84,066-02 (Tex. Crim. App. July

27, 2016) (denying motion for leave to file writ of

mandamus)

Ex parte Balderas, No. WR-84,066-01 (Tex. Crim. App.

Dec. 19, 2019) (denying state habeas application)

Balderas v. Texas, 141 S.Ct. 275 (Oct. 5, 2020) (denying

petition for a writ of certiorari)

Balderas v. Lumpkin, No. 4:20-CV-4262 (S.D. Tex., Dec.

13, 2022) (granting Balderas’s motion for a stay of

federal habeas proceedings, administratively closing the

case)

Ex parte Balderas, No. WR-84,066-03 (Tex. Crim. App.

Oct. 25, 2023) (dismissing subsequent state habeas

application)

iii

TABLE OF CONTENTS

QUSTIONS PRESENTED................................................ i

LIST OF PROCEEDINGS ............................................... ii

TABLE OF CONTENTS ................................................. iii

TABLE OF AUTHORITIES .............................................v

BRIEF IN OPPOSITION ................................................. 1

STATEMENT OF THE CASE......................................... 1

I.

Facts Concerning Balderas’s Murder of

Eduardo Hernandez ....................................... 1

II.

Facts Relevant to Punishment and the

Sentencing Phase of Trial .............................. 9

III.

Course of Proceedings ................................... 11

REASONS FOR DENYING THE PETITION ............. 12

I.

The Court Below Dismissed Balderas’s

Claims

on

an

Adequate

and

Independent State Law Ground

Depriving the Court of Jurisdiction ............ 13

II.

This Court Should Not Use its

Supervisory Authority in Balderas’s

Case ................................................................ 18

iv

III.

This Case Presents a Poor Vehicle for

Balderas’s Arguments .................................. 20

IV.

Balderas’s Claims are Meritless ................... 22

A.

Balderas’s Brady and Giglio claims

are meritless ............................................ 22

B.

Balderas’s mental incompetency

claims are meritless ................................ 26

C.

Balderas’s alibi-autonomy claim is

meritless .................................................... 28

D.

Balderas’s false-testimony claim is

meritless ................................................... 29

CONCLUSION ............................................................... 31

v

TABLE OF AUTHORITIES

Cases

Balderas v. State,

517 S.W.3d 756 (Tex. Crim. App. 2016). ....... 9, 11

Balderas v. Texas,

137 S. Ct. 1207 (2017) ..........................................11

Balderas v. Texas,

141 S. Ct. 275 (2020) ............................................11

Banks v. Dretke,

540 U.S. 668 (2004) ..............................................26

Beard v. Kindler,

558 U.S. 53 (2009) ................................................15

Brady v. Maryland,

373 U.S. 83 (1963) ................................................13

Coleman v. Thompson,

501 U.S. 722 (1991) ................................. 14, 15, 16

Cullen v. Pinholster,

563 U.S. 170 (2011) ..............................................26

Cutter v. Wilkinson,

544 U.S. 709 (2005) ..............................................25

De Buono v. NYSA-ILA Medical & Clinical

Servs. Fund,

520 U.S. 806 (1997) ..............................................20

Dickerson v. United States,

530 U.S. 428 (2000) ..............................................21

Dusky v. United States,

362 U.S. 402 (1960) ..............................................32

vi

Ex parte Balderas,

No. WR-84,066-01, 2019 WL 6885361

(Tex. Crim. App. Dec. 18, 2019) ................... 11, 28

Ex parte Balderas,

No. WR-84,066-03, 2023 WL 7023648

(Tex. Crim. App. Oct. 25, 2023) ...................passim

Ex parte Blue,

230 S.W.3d 151 (Tex. Crim. App. 2007) .............18

Ex parte Campbell,

226 S.W.3d 418 (Tex. Crim. App. 2007) .............17

Ex parte Franklin,

72 S.W.3d 671 (Tex. Crim. App. 2002) ...............18

Ex parte Kerr,

64 S.W.3d 414 (Tex. Crim. App. 2002) ...............16

Ex parte Reed,

271 S.W.3d 698 (Tex. Crim. App. 2008) ...... 17, 18

Expressions Hair Design v. Schneiderman,

581 U.S. 37 (2017) ................................................19

Florida v. Powell,

559 U.S. 50 (2010) ......................................... 22, 23

Foster v. Chatman,

578 U.S. 488 (2016) ..............................................14

Giglio v. United States,

405 U.S. 150 (1972) ..............................................27

Harrington v. Richter,

562 U.S. 86 (2011) ................................................24

Harris v. Reed,

489 U.S. 255 (1989) ..............................................14

vii

Harris v. Rivera,

454 U.S. 339 (1981) ..............................................22

Hughes v. Quarterman,

530 F.3d 336 (5th Cir. 2008) ................................19

Indiana v. Edwards,

554 U.S. 164 (2008) ..............................................32

James v. Kentucky,

466 U.S. 341 (1984) ..............................................15

Kunkle v. Texas,

125 S. Ct. 2898 (2004) ..........................................20

Kyles v. Whitley,

514 U.S. 419 (1995) ..............................................36

Lee v. Kemna,

534 U.S. 362 (2002) ....................................... 14, 15

McCoy v. Louisiana,

584 U.S. 414 (2018) ..............................................34

Medina v. California,

505 U.S. 437 (1992) ..............................................33

Mu’Min v. Virginia,

500 U.S. 415 (1991) ..............................................22

Napue v. Illinois,

360 U.S. 264 (1959) ..............................................36

Overton v. United States,

450 F.2d 919 (5th Cir. 1971) ................................37

Rocha v. Thaler,

626 F.3d 815 (5th Cir. 2010) ................................16

Sawyer v. Whitley,

505 U.S. 333 (1992) ....................................... 18, 26

viii

Schlup v. Delo,

513 U.S. 298 (1995) ....................................... 18, 26

Smith v. Phillips,

455 U.S. 209 (1982) ..............................................22

Spence v. Johnson,

80 F.3d 989 (5th Cir. 1996) ..................................30

Stewart v. Smith,

536 U.S. 856 (2002) ..............................................15

Strickland v Washington,

466 U.S. 668 (1984) ..............................................35

Strickler v. Greene,

527 U.S. 263 (1999) ..............................................27

Teague v. Lane,

489 U.S. 288 (1989) ..............................................35

Tucker v. Johnson,

242 F.3d 617 (5th Cir. 2001) ................................36

Turner v. United States,

582 U.S. 313 (2017) ....................................... 31, 38

United States v. Bagley,

473 U.S. 667 (1985) ..............................................27

United States v. Diaz,

922 F.2d 998 (2d Cir. 1990) .................................31

United States v. Griley,

814 F.2d 967 (4th Cir. 1987) ................................37

United States v. Johnston,

268 U.S. 220 (1925) ..............................................25

United States v. O’Keefe,

128 F.3d 885 (5th Cir. 1997) ................................36

ix

United States v. Sipe,

388 F.3d 471 (5th Cir. 2004) ................................30

United States v. Stanford,

823 F.3d 814 (5th Cir. 2016) ................................37

Statutes

28 U.S.C. § 2244(b) ..........................................................16

28 U.S.C. § 2254 ..............................................................25

Tex. Code Crim. Proc. art. 11.071 § 5 ..................... 16, 21

Tex. Code Crim. Proc. art. 11.071 § 5(a) .......................16

Tex. Code Crim. Proc. art. 11.071 § 5(a)(1) ...................17

Tex. Code Crim. Proc. art. 11.071 § 5(a)(2) ...................17

Tex. Code Crim. Proc. art. 11.071 § 5(a)(3) ...................18

Tex. Code Crim. Proc. art. 11.071 § 5(d) .......................17

Tex. Code Crim. Proc. art. 11.071 § 5(e) ........................17

Rules

Sup. Ct. R. 10 ............................................................ 19, 20

Sup. Ct. R. 14.1(h) ...........................................................20

BRIEF IN OPPOSITION

The State of Texas respectfully submits this brief

in opposition to the petition for a writ of certiorari filed

by Juan Balderas.

STATEMENT OF THE CASE

I.

Facts Concerning Balderas’s Murder of

Eduardo Hernandez

The Texas Court of Criminal Appeals (CCA)

summarized the facts of the crime in its opinion

affirming Balderas’s conviction and sentence on direct

appeal:

In 2004, the victim, Eduardo

Hernandez, became a member of the Barrio

Tres Alief (“BTA”), a regional subset of the

La Tercera Crips (“LTC”) street gang in

Houston. Balderas, a long-time member of

the LTC gang and one of the founding

members of the BTA subset, had

introduced Hernandez to the gang.

Initially, the other LTC members liked

Hernandez, and Hernandez was proud to

be part of the gang. LTC member Israel

Diaz befriended Hernandez, and for a while

Hernandez lived with Diaz. However, in

late 2004, this friendship soured after Diaz

let Hernandez borrow a vehicle that Diaz

had stolen the week before. Police officers

stopped and arrested Hernandez while he

2

was driving the stolen vehicle. After

Hernandez informed them that he had

borrowed the vehicle from Diaz, they

arrested Diaz for aggravated robbery.

Diaz bonded out of jail in April 2005.

He was angry with Hernandez for

“snitching” on him. He “lectured”

Hernandez about giving his name to the

police, and Hernandez promised that he

would not testify against Diaz in the

aggravated robbery case. Balderas’s

defense counsel argued at trial that

Hernandez’s snitching gave Diaz a motive

for murder, but Diaz denied that he wanted

to kill Hernandez. Diaz testified that he

knew that two other witnesses could

identify him as the thief and that police had

found his fingerprints on the stolen vehicle;

therefore, preventing Hernandez from

testifying would not have helped him avoid

the robbery conviction. Also, because of the

pending robbery case, Diaz knew that he

would be the first suspect if anything

happened to Hernandez. Diaz testified that

even though he personally did not want to

kill Hernandez, other LTC members

viewed Hernandez’s conduct as being

disrespectful of the gang and thought that

Hernandez needed to be punished. Diaz

testified that he asked those members to

wait until his trial was over before they

took action against Hernandez.

3

After

the

snitching

incident,

Hernandez stopped associating with other

LTC gang members. He also moved out of

his family home so that LTC members

could not easily locate him. In August or

September 2005, he began dating Karen

Bardales (“Karen”). Hernandez and Karen

spent much of their time “hanging out” in

an apartment belonging to one of Karen’s

friends, Durjan Decorado, who was not in a

gang. Karen’s older sister, Wendy Bardales

(“Wendy”), and Wendy’s boyfriend, Edgar

Ferrufino, also spent much of their time in

that apartment. Karen and Wendy’s

friends, including members of several rival

gangs, would visit them there. Hernandez

socialized with those friends.

Over the next few months, LTC gang

members heard rumors that Hernandez

was associating with members of rival

gangs and flashing rival gangs’ hand signs,

which constituted acts of disloyalty and

disrespect against the LTC gang. After

seeing images of Hernandez on social

media confirming these rumors, some

indignant LTC members urged the gang to

take action against him. Three or four days

before Hernandez’s killing, senior members

of the gang called a meeting. Those in

attendance agreed to shoot and kill

Hernandez. Although they did not

expressly select an individual to kill him,

4

everyone understood that Hernandez was

Balderas’s responsibility because he had

introduced Hernandez to the gang.

On the afternoon of December 6,

2005, Wendy, Ferrufino, Karen, and

Hernandez were hanging out in Decorado’s

apartment. Jose Vazquez, a senior LTC

gang member, stopped by to talk to

Hernandez.

Karen

began

saying

disrespectful things about the LTC gang,

which upset Vazquez. Vasquez wanted

Hernandez to leave the apartment with

him, but Hernandez refused. Hernandez

was visibly upset after Vazquez left. He

told Karen that he was worried that

something was going to happen. Later,

Hernandez left with his sister to go

shopping and have dinner. He and Karen

reunited at the apartment complex that

night.

Around 9:45 p.m., Wendy, Ferrufino,

Decorado, and Decorado’s cousin were in

Decorado’s apartment. Ferrufino and

Wendy were playing a video game in the

living room. As Karen and Hernandez

approached the apartment, Karen noticed

fresh LTC gang graffiti on the exterior

wall. Immediately after entering the

apartment, they heard gunshots, and then

the front door opened and a gunman ran

into the apartment. Hernandez dropped to

5

the floor and pulled Karen down with him,

positioning himself between Karen and the

gunman. Decorado and his cousin fled to

the bedrooms, and Ferrufino crouched next

to the television stand. Wendy, who was

sitting on the floor between the couch and

the television, froze. She could see the

gunman as he entered the apartment, and

her eyes followed him until he left.

The gunman fired his gun as he ran

around the living room. Wendy saw that he

was wearing khaki pants and a black

hoodie, with the hood pulled up over his

head. She got a good look at his face when

his hood fell down as he passed her. The

gunman paused in front of Ferrufino, who

asked him not to shoot. He did not shoot

Ferrufino and began to move back toward

the entryway, but then he stopped and

stood over Hernandez. He shot Hernandez

in the back and head multiple times.

Karen, who was lying face-down next to

Hernandez, did not see the gunman’s face,

but when the gunman extended his arm

toward Hernandez, Karen could see that he

was wearing a black sweater. After

shooting Hernandez at least nine times,

the gunman left. Ferrufino called 9-1-1.

Around that time, Diaz heard from

another LTC gang member that “they” had

“found

[Hernandez,]”

which

Diaz

6

understood to mean that Hernandez was

about to be (or had just been) killed. He and

other LTC members gathered across the

street from the apartment complex. They

could see an ambulance and police cars in

the parking lot. Diaz saw Balderas waiting

near the apartment complex. Balderas was

wearing a dark blue or black sweater-like

top and khakis. When Balderas noticed

Diaz and the others, he crossed the street

to join them. Balderas hugged everyone

and seemed “joyful” as he reported that he

“finally got him.” Diaz saw Balderas

change the magazine of a silver handgun.

Diaz recognized the handgun as one of two

silver guns that Balderas regularly carried.

That night, law enforcement officials

took Wendy, Karen, and Ferrufino to the

police station to give witness statements.

In the early morning hours of December 7,

Wendy gave a statement that was

committed to writing by Officer Thomas

Cunningham. Wendy stated that she had

never seen the gunman before, and she

described him as a “skinny Hispanic guy

dressed in a black hooded sweatshirt type

jacket.” She also stated that he had a “dark

birth mark” on his face but she could not

remember where.

Around 10:30 p.m.,

Norman Ruland drove to

Sergeant

Wendy’s

7

apartment to show her a photo array of six

suspects that included Diaz but not

Balderas. Wendy did not identify the

gunman, but she recognized Diaz. She

stated that he was a friend of Hernandez

who went by the street name “Cookie,” and

that she was sure he was not the gunman.

She told Ruland that the gunman had a

dark mark on his cheek that did not

resemble the scars that were visible on

Diaz’s face.

On December 12, Ruland returned to

Wendy’s apartment with a second photo

array that included Balderas’s photograph.

Wendy immediately pointed to Balderas,

saying that she recognized him as a friend

of Hernandez and Diaz who went by the

street name “Apache.” She also stated that

he “looked like the shooter.” When Ruland

asked Wendy if Balderas was the shooter,

she reiterated that Balderas’s “face looked

exactly like the shooter’s face.” She signed

and dated Balderas’s photograph to

confirm her identification. Although

Ruland felt that Wendy was confident in

her identification of Balderas as the

gunman, he was confused by her verbal

phrasing in making the identification.

Therefore, the following day, he returned to

Wendy’s apartment to seek clarification.

On this occasion, Wendy expressly

identified Balderas as the gunman, stating

8

that she was positive in her identification.

She wrote a sentence in Spanish on the

back of the lineup to confirm her positive

identification. Based on this identification,

police obtained a warrant for Balderas’s

arrest.

On December 16, Officer Rick

Moreno drove to an apartment complex

where he watched for Balderas and

another LTC gang member, Rigalado

Silder, and waited for the assistance of a

SWAT team. After Moreno had been

watching the complex for about 25

minutes, he observed Balderas and Silder

leave an upstairs apartment and start

down the stairs. Each man was carrying a

large box, and Balderas had a black bag

slung over his shoulder. When they saw the

SWAT team arriving, Balderas and Silder

set everything down and started running.

Moreno caught Silder in the apartment

complex, while the SWAT team pursued

Balderas into the neighborhood and caught

him as he tried to hide under a car. Moreno

saw that the boxes and bag contained

firearms and other weapons, bullet-proof

vests, identification holders, magazines,

and ammunition. One of the weapons

recovered from the box that Balderas had

been carrying was a handgun that was

later identified, through ballistics testing,

as the murder weapon in Hernandez’s

9

killing.

A

shell

casing

from

a

semiautomatic handgun was recovered

from Balderas’s right rear pants pocket.

Balderas v. State, 517 S.W.3d 756, 763–65 (Tex. Crim.

App. 2016).

II.

Facts Relevant to Punishment and the

Sentencing Phase of Trial

At punishment, the State implicated Balderas in

three separate murders (additional to the underlying

capital murder of Hernandez) and one shooting.

Alejandro Garcia testified that in September 2005,

Balderas was one of five LTC members that invaded the

home of Daniel Zamora and Guadalupe Sepulveda.

34.RR 205–37.1 In the course of this home invasion,

Efrain Lopez shot and killed Zamora, and Balderas shot

Sepulveda in the stomach. 34.RR 35, 226. Sepulveda

lived, but he described how the .40 caliber bullet tore up

his intestines. 34.RR 35. At the scene, law enforcement

found two .40 caliber casings that were fired from the

same .40 Taurus handgun that Balderas used to kill

Hernandez. 34.RR 112–14; 37.RR 117–19; SX’s 110, 184,

185.

“RR” refers to the reporter’s record at trial, preceded by

volume number and followed by page number. “CR” refers to the

clerk’s record, preceded by volume number and followed by page

number. “SX” refers to the State’s exhibits at trial, followed by

exhibit number. “SHCR” refers to the state-habeas clerk’s record

submitted to the CCA in state-habeas proceedings, preceded by

volume number and followed by page number.

1

10

Garcia also testified that Balderas took part in

the “Bissonnet” murder of Eric Romero. Balderas and

other LTC members drove up on Romero due to his

alleged association with a rival gang. 35.RR 11–29.

Balderas and another LTC member opened fire on

Romero and his girlfriend who was also in the car. 35.RR

11–29. Romero died from multiple gunshot wounds.

35.RR 183–98; SX 334 (autopsy report). Garcia testified

that, during the shooting, he thought Balderas was

firing a chrome .357 caliber gun. 35.RR 24. Casings at

the scene were determined to have been fired from a .357

Taurus that Balderas was carrying when he was

arrested on December 16, 2005. 2 35.RR 168; 37.RR 127–

31; SX113.

Balderas was also tied to two more incidents. In

the Bunker Hill murder, Jose Garcia was gunned down

fleeing from a car in the middle of an intersection. 36.RR

96–111. Balderas’s Honda was at the scene, identified by

its license plate number. 36.RR 35–36, 105, 111. And

again, casings and projectiles found at the scene were

ejected from the same .357 semiautomatic Taurus gun

Balderas was arrested with on December 16, 2005.

36.RR 86–89; 37.RR 29, 144–48; SX’s 113, 303–06, 331–

32.

In the Club Creek shooting, someone shot Luis

Garcia in the hand while he was walking. 36.RR 158–72.

The shot was fired from the Honda registered to

Balderas. 36.RR 19–26, 31–40. And casings found at the

Specifically, the .357 Taurus (SX113) was dropped by

Balderas as he ran from SWAT officers on December 16, 2005.

36.RR 231.

2

11

scene were again found to be ejected from the same .357

Taurus semiautomatic that Balderas was arrested with.

36.RR 44; 37.RR 122–23, 125–26; SX’s 113, 208–09.

III.

Course of Proceedings

Balderas was convicted and sentenced to death in

March 2014. 12.CR 3284, 3334–45, 3355. The CCA

affirmed the judgment on November 2, 2016. Balderas,

517 S.W.3d at 799. This Court denied certiorari review

of that decision on February 27, 2017. Balderas v. Texas,

137 S. Ct. 1207 (2017).

Balderas filed his first state habeas application in

2016. 1.SHCR-01 2. The CCA denied the application on

December 18, 2019. Ex parte Balderas, No. WR-84,06601, 2019 WL 6885361, at *3 (Tex. Crim. App. Dec. 18,

2019). This Court denied certiorari review of that

decision on October 5, 2020. Balderas v. Texas, 141 S. Ct.

275 (2020).

Balderas then filed a federal habeas petition. Pet.,

Balderas v. Lumpkin, No. 4:20-CV-4262 (S.D. Tex. Dec.

15, 2020), ECF Doc. 2. During the pendency of his

petition, Balderas requested a stay of the district court’s

proceedings to allow the exhaustion of state court

remedies for five claims. Order Granting Stay, Balderas

v. Lumpkin, No. 4:20-CV-4262 (S.D. Tex. Dec. 13, 2022),

ECF Doc. 57. The district court granted the stay. Id.

Balderas then filed another state habeas

application, which the CCA dismissed on October 25,

2023. Ex parte Balderas, No. WR-84,066-03, 2023 WL

12

7023648, at *1 (Tex. Crim. App. Oct. 25, 2023).3 The CCA

found Balderas’s subsequent application “failed to make

a prima facie showing that he satisfies the requirements

of Article 11.071, § 5(a)” so it “dismiss[ed] the

subsequent application as an abuse of the writ without

considering the merits of the claims.” Id. Balderas has

filed a petition for a writ of certiorari appealing that

decision. The instant brief in opposition follows.

REASONS FOR DENYING THE PETITION

The claims for which Balderas seeks review were

dismissed by the court below on an adequate and

independent state law ground thus depriving this Court

of

jurisdiction

to

hear

them.

Jurisdiction

notwithstanding, Balderas fails to provide a single

compelling reason to grant a writ of certiorari. Indeed,

this petition is a poor vehicle for his claims—fact-bound

questions without evidentiary development or merits

analysis in the court below. Further, Balderas has an

avenue better suited to his factually intensive

allegations: Federal habeas proceedings. For these

reasons, the Court should deny his petition.

Balderas amended his federal habeas petition following the

CCA’s dismissal of his subsequent application. Pet., Balderas v.

Lumpkin, No. 4:20-CV-4262 (S.D. Tex. Feb. 23, 2024), ECF Doc. 70.

3

13

I.

The Court Below Dismissed Balderas’s

Claims on an Adequate and Independent

State Law Ground Depriving the Court of

Jurisdiction.

In the court below, Balderas sought review of five

claims: (1) denial of his right to due process under Brady

v. Maryland, 373 U.S. 83 (1963); (2) ineffective

assistance of trial counsel for failure to raise a mental

incompetency claim; (3) violation of his right to due

process for trying Balderas while incompetent; (4)

violation of his Sixth Amendment right to autonomy

based on failure of trial counsel to present an alibi

defense; and (5) violation of his right to due process by

failing to correct false testimony. Pet. Cert. 22–29. The

CCA dismissed these claims under its procedural abuseof-the-writ bar. Ex parte Balderas, 2023 WL 7023648, at

*1. Such dismissal on an independent and adequate

state law ground deprives the Court of jurisdiction.

“This Court lacks jurisdiction to entertain a

federal claim on review of a state court judgment ‘if that

judgment rests on a state law ground that is both

“independent” of the merits of the federal claim and an

“adequate” basis for the court’s decision.’” Foster v.

Chatman, 578 U.S. 488, 497 (2016) (quoting Harris v.

Reed, 489 U.S. 255, 260 (1989)). “This rule applies

whether the state law ground is substantive or

procedural.” Coleman v. Thompson, 501 U.S. 722, 729

(1991).

To be adequate, a state law ground must be

“‘firmly established and regularly followed.’” Lee v.

14

Kemna, 534 U.S. 362, 376 (2002) (quoting James v.

Kentucky, 466 U.S. 341, 348 (1984)). Discretion does not

deprive a state law ground of its adequacy, for a

“discretionary rule can be ‘firmly established’ and

‘regularly followed’ even if the appropriate exercise of

discretion may permit consideration of a federal claim in

some cases but not others.” Beard v. Kindler, 558 U.S.

53, 60–61 (2009). Ultimately, situations where a state

law ground is found inadequate are but a “small

category of cases.” Kemna, 534 U.S. at 381.

A state law ground is “independent of federal law

[when it] do[es] not depend upon a federal constitutional

ruling on the merits.” Stewart v. Smith, 536 U.S. 856,

860 (2002). There is no automatic presumption of federal

law consideration. Coleman, 501 U.S. at 735. To so find,

the state court’s decision must “fairly appear to rest

primarily on federal law, or to be interwoven with the

federal law[.]” Id. Where there is no “clear indication

that a state court rested its decision on federal law, a

federal court’s task will not be difficult.” Id. at 739–40.

Texas, like Congress, has imposed significant

restrictions on subsequent habeas applications. 4

Compare Tex. Code Crim. Proc. art. 11.071 § 5, with 28

U.S.C. § 2244(b). A Texas court may not reach the merits

of a claim in a subsequent application “except in

exceptional circumstances.” Ex parte Kerr, 64 S.W.3d

414, 418 (Tex. Crim. App. 2002). The applicant bears the

burden of providing “sufficient specific facts

Texas’s codification of these restrictions is sometimes

referred to as the abuse-of-the-writ bar or section 5 bar in capital

cases. See, e.g., Rocha v. Thaler, 626 F.3d 815, 831 (5th Cir. 2010).

4

15

establishing,” Tex. Code Crim. Proc. art. 11.071 § 5(a),

one of these “exceptional circumstances,” Ex parte Kerr,

64 S.W.3d at 418.

An applicant can prove either factual or legal

unavailability of a claim. Tex. Code Crim. Proc. art.

11.071 § 5(a)(1). This requires proof of unavailability in

all prior state habeas applications. See Ex parte

Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007).

A claim is legally unavailable when its legal basis “was

not recognized or could not have been reasonably

formulated from a final decision of [this Court], a court

of appeals of the United States, or a court of appellate

jurisdiction of this state,” Tex. Code Crim. Proc. art.

11.071 § 5(d), and factually unavailable when its factual

basis “was not ascertainable through the exercise of

reasonable diligence,” Tex. Code Crim. Proc. art.

11.071 § 5(e).

Second, an applicant can prove that “but for a

violation of the United States Constitution no rational

juror could have found the applicant guilty beyond a

reasonable doubt.” Tex. Code Crim. Proc. art.

11.071 § 5(a)(2). This requires an applicant to “make a

threshold, prima facie showing of innocence by a

preponderance of the evidence.” Ex parte Reed, 271

S.W.3d 698, 733 (Tex. Crim. App. 2008) (citation

omitted). A “claim” of this sort is also known as a

“Schlup-type claim,” Ex parte Franklin, 72 S.W.3d 671,

675 (Tex. Crim. App. 2002), because § 5(a)(2) “was

enacted in response to” Schlup v. Delo, 513 U.S. 298

(1995). Ex parte Reed, 271 S.W.3d at 73.

16

Third, an applicant can prove that, “by clear and

convincing evidence, but for a violation of the United

States Constitution no rational juror would have

answered in the [S]tate’s favor one or more of the special

issues.” Tex. Code Crim. Proc. art. 11.071 § 5(a)(3).

Section 5(a)(3), “more or less, [codifies] the doctrine

found in Sawyer v. Whitley, 505 U.S. 333 (1992).” Ex

parte Blue, 230 S.W.3d 151, 160–61 (Tex. Crim. App.

2007).

In state court, Balderas accepted the burden of

proving an exception to the abuse-of-the-writ bar. For

his first claim, Balderas argued review should be

granted under Article 11.071 § 5(a)(1), (2), and (3). Pet.

App. 126a–29a. For his second and third claims,

Balderas argued the claims satisfied § 5(a)(3). Pet. App.

152a. He argued his fourth claim satisfied § 5(a)(2) and

(3). Pet. App. 156a. And for his last claim, he argued it

satisfied § 5(a)(3). Pet. App. 160a. As mentioned before,

the CCA did not agree, finding Balderas did not satisfy

“the requirements of Article 11.071 § 5,” and it

dismissed the “application as an abuse of the writ

without considering the merits of the claims.” Balderas,

2023 WL 7023648, at *1.

Before this Court, Balderas does not challenge the

adequacy of § 5, and that is with good reason—the Fifth

Circuit “has held that, since 1994, the Texas abuse of the

writ doctrine has been consistently applied as a

procedural bar, and that it is an . . . adequate state

ground for the purpose of imposing a [federal]

procedural bar.” Hughes v. Quarterman, 530 F.3d 336,

342 (5th Cir. 2008); cf. Expressions Hair Design v.

17

Schneiderman, 581 U.S. 37, 45 (2017) (noting that this

Court generally defers to a court of appeals’s

interpretation of its respective states’ laws); De Buono v.

NYSA-ILA Medical & Clinical Servs. Fund, 520 U.S.

806, 810 n.5 (1997) (noting “settled practice of according

respect to the courts of appeals’ greater familiarity with

issues of state law”).

The only question then is whether the CCA’s

dismissal of Balderas’s claim was independent of federal

law. It is. The CCA unequivocally and unambiguously

dismissed Balderas’s claims “without considering the

merits of the claims.” Balderas, 2023 WL 7023648, at *1.

Thus, Balderas’s subsequent state habeas

application was subject to dismissal on an adequate and

independent state law ground. The abuse-of-the-writ

bar—a state-law ground clearly and unambiguously

applied by the CCA—prohibits this Court from

exercising jurisdiction over any of the claims for which

Balderas now seeks review. See Kunkle v. Texas, 125 S.

Ct. 2898, 2898 (2004) (Stevens, J., concurring) (“I am

now satisfied that the Texas court’s determination was

independently based on a determination of state law, see

Tex. Code Crim. Proc. art. 11.071 § 5 [ ], and therefore

that we cannot grant petitioner his requested relief.”).

All of Balderas’s claims are foreclosed by an adequate

and independent state procedural bar and certiorari

review should be denied.

18

II.

This Court Should Not Use its Supervisory

Authority in Balderas’s Case.

Balderas claims that this Court should exercise

its supervisory powers because the CCA’s “practice of

summarily [dismissing] death row inmates’ petitions

without explanation cannot be reconciled with the most

basic requirements of due process[.]” Pet. at 19. He takes

issue with the CCA providing “no reasons” for its

“conclusion that Balderas failed to make the necessary

showing for review.” Id. at 21–22 (citing Sup. Ct. R.

10(a)).

However, this Court “do[es] not hold a

supervisory power over” state court proceedings, and its

“authority is limited to enforcing the commands of the

United States Constitution.” Dickerson v. United States,

530 U.S. 428, 438–39 (2000) (citing Smith v. Phillips,

455 U.S. 209, 221 (1982) and quoting Mu’Min v.

Virginia, 500 U.S. 415, 422 (1991)); see Harris v. Rivera,

454 U.S. 339, 344–45 (1981) (“Federal judges have no

general supervisory power over state trial judges; they

may not require the observance of any special

procedures except when necessary to assure compliance

with the dictates of the Federal Constitution.”).

Balderas nevertheless suggests that this Court

should create a new rule exercising supervisory review

over state proceedings so that the CCA cannot “evade

direct review by issuing an ambiguous or obscure

decision.” Pet. at 30. That’s a specious argument

because, jurisdictionally, there can be no federal review

of the CCA’s application of Texas’s independent and

19

adequate bar. See supra Part I. Balderas’s cite to Florida

v. Powell, 559 U.S. 50 (2010) also fails to support his

argument. Pet. at 30. In Powell, it was not clear from the

“face of the opinion” whether the state court’s decision

rested on federal or state law. 559 U.S. at 58. This Court

reiterated that, in a case in which the face of the opinion

“indicates clearly and expressly that it is alternatively

based on bona fide separate, adequate, and independent

grounds, we, of course, will not undertake to review the

decision.” Id. at 57.5

There can be no doubt that the CCA “clearly and

expressly” rested its denial on Texas’s independent and

adequate abuse-of-the-writ bar. Ex parte Balderas, 2023

WL 7023648, at *1 (dismissing “without considering the

merits of the claim” because Balderas “failed to make a

prima facie showing that he satisfied the requirements

of Article 11.071 § 5(a).” Indeed, nowhere in his petition

does Balderas muster any argument that this summary

dismissal somehow implicated any federal question.

Thus, Balderas seeks a rule from this Court that

would require the CCA better explain a decision that

this Court lacks jurisdiction to review. Such a pointless

rule hardly serves as a “compelling reason” to grant the

writ. See Sup. Ct. R. 10 (A certiorari petition should be

And, even when the face of the state court opinion renders

it unclear whether the opinion rests on federal law, the answer is

not to impose procedural requirements on the state courts; rather,

it is to entertain a presumption that the state-court decision does

not rest on an independent state ground. Powell, 559 U.S. at 57.

5

20

granted for “compelling reasons”

“important” issues of federal law.). 6

III.

that

involve

This Case Presents a Poor Vehicle for

Balderas’s Arguments.

The Court requires those seeking a writ of

certiorari to provide “[a] direct and concise argument

amplifying the reasons relied on for allowance of the

writ.” Sup. Ct. R. 14.1(h) (emphasis added). The Court

would be hard pressed to discover any such reason in

Balderas’s petition, let alone amplification thereof.

Indeed, Balderas makes no allegations of circuit or statecourt-of-last-resort conflict. See Sup. Ct. R. 10(a)–(b).

Left with no true ground for review in his briefing,

the only reasonable conclusion is that Balderas seeks

mere error correction. Indeed, he spends most of his

argument section simply arguing the merits of his

claims or arguing why they meet the exceptions to

Texas’s abuse-of-the-writ bar. Pet. at 19–29.

But, mere error correction is not a good reason to

expend the Court’s resources. See Sup. Ct. R. 10 (“A

petition . . . is rarely granted when the asserted error

In fact, even when a state court does reach the merits of a

federal claim, no written decision is required; a federal court need

only consider whether some reasonable argument could be made in

support of denying relief. Cf. Harrington v. Richter, 562 U.S. 86, 99

(2011) (“[R]equiring a statement of reasons [for a state court’s

decision] could undercut state practices designed to preserve the

integrity of the case-law tradition.”).

6

21

consists of . . . the misapplication of a properly stated

rule of law.”). And such a request is especially

problematic here because the court below did not reach

the merits of Balderas’s claims, and this Court is one “of

review, not of first view.” Cutter v. Wilkinson, 544 U.S.

709, 718 n.7 (2005). Even worse, Balderas’s claims are

heavily fact dependent, and because there was no

evidentiary development in the lower court, this court

would have “to review evidence and discuss specific

facts” for Balderas to garner relief, something the Court

“do[es] not” do. United States v. Johnston, 268 U.S. 220,

227 (1925).

Balderas suggests that direct review is necessary

because the CCA’s dismissal of his claims forecloses

review of those claims altogether. Pet. at 33. But he can

raise (and has raised) the exact same arguments in

federal district court in his federal habeas proceedings

under 28 U.S.C. § 2254. Much like his § 5(a)(1)

argument, he can argue cause to overcome the default of

any Brady or false testimony claim. See Banks v. Dretke,

540 U.S. 668, 691 (2004). He can make the same § 5(a)(2)

“actual innocence” arguments to overcome any default

as well. Schlup, 513 U.S. at 324. And he can make the

same § 5(a)(3) “innocence of the death penalty”

arguments in federal district court too. See Sawyer, 505

U.S. at 350. And unlike this Court, the federal district

court can, if necessary, 7 take up any evidentiary issues

that might inform those determinations.

This is not in any way a concession that evidentiary

development is warranted in federal district court. It simply

7

22

Thus, Balderas’s claim that he needs this Court to

take up direct review or he will lose all available review

of his claims is untrue. He points to Cullen v. Pinholster,

563 U.S. 170 (2011), in support of this argument,

claiming that review under § 2254(d) is confined to the

record. But § 2254(d) only applies “[i]f a claim has been

adjudicated on the merits by a state court[.]” Id. a 185.

Balderas’s subsequent application was expressly not

adjudicated on the merits. Balderas, 2023 WL 7023648,

at *1 (dismissal “without considering the merits of the

claims”). Thus, Pinholster has no bearing on the claims

that were procedurally barred and thus defaulted in

federal court.

IV.

Balderas’s Claims are Meritless.

A.

Balderas’s Brady and Giglio claims are

meritless.

Under Brady, a petitioner must show that the

prosecution withheld evidence favorable to the defense

and that the evidence was material—“there is a

reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding

would have been different.” Strickler v. Greene, 527 U.S.

263, 280 (1999) (quoting United States v. Bagley, 473

U.S. 667, 682 (1985)). “Impeachment evidence, however,

as well as exculpatory evidence falls within the Brady

illustrates that an avenue is available. Balderas must, of course,

still make certain threshold showings to avail himself of that

avenue.

23

rule.” Bagley, 473 U.S. at 676 (citing Giglio v. United

States, 405 U.S. 150, 154 (1972)).

In his first Brady argument, Balderas argues that

the suppression of the 2007-2008 Diaz Notes violated his

due process rights because those notes undermined

Diaz’s account of Balderas’s confession. Pet. at 23.

Specifically he argues “[t]he State’s withheld evidence

revealed that [Diaz] gave several conflicting versions of

Balderas’s alleged confession[.]” Id.

Balderas’s argument ignores the record. The

2007-2008 Diaz notes were attached to a Brady claim

raised in his initial state application. 3.SHCR-01 782–

804. And Balderas raised the exact same argument in

that application. 1.SHCR-01 64–71. Trial counsel

responded that they had, in fact, reviewed the 2007-2008

Diaz notes. 5.SHCR-01 1471, 1486. And the CCA

rejected the claim on the merits:

Specifically, [Balderas] alleges that the

State failed to disclose handwritten notes

from the State's pre-trial interviews with

Diaz. However, [Balderas] must do more

than state mere conclusions of law or

allegations of error; applicant must support

his claim with adequate facts . . . [Balderas]

fails to do so here and the evidence before us

shows that the complained-of notes were

contained within the State's file and were

reviewed by defense counsel in preparation

for trial.

24

Balderas, 2019 WL 6885361, at *2 (emphasis added)

(internal citation omitted). 8

In his second Brady argument, Balderas argues

that evidence of State misconduct regarding suggestive

identification procedures would have cast doubt on

Wendy Bardales’s identification of Balderas. Pet. at 23.

In support he points to the State’s notes, which reveal

that Angelina Quinones, a witness in an investigation in

another LTC-related incident, claimed that officers were

telling her which photo to identify as the perpetrator. Id.

at 14–15.

Again, Balderas’s argument is frivolous. The

State turned over a Brady notice regarding this exact

allegation, which is in the clerk’s record. 2.CR 529–32.

According to the notice, Quinones stated that “[Officer]

Waters began to encourage her saying come on you

can do this, help me out. He then guided her finger

to one of the photos and said here he is, you know

that’s the guy, come on you can do it.” Id. Thus,

Balderas fails to show suppression.

Balderas briefly addresses statements given by Alejandro

Garcia that the rumors were that MS-13 killed Hernandez. Pet. at

23. That particular Brady claim was not previously adjudicated in

the initial application. However, that evidence was irrelevant

because it has always been undisputed that LTC killed Hernandez.

Balderas presented evidence that LTC leader Victor Arevalo

committed the murder. 28.RR 226.

8

25

Balderas also fails to explain how this testimony

is material. “Evidence may be material under Brady

even though it is inadmissible.” United States v. Sipe ,

388 F.3d 471, 485 (5th Cir. 2004) (citing Spence v.

Johnson, 80 F.3d 989, 1005 n.14 (5th Cir. 1996)). But in

determining whether “the outcome of the proceeding

[was] affected” a reviewing court will “often consider

whether the suppressed inadmissible evidence would

have led to admissible evidence.” Id. The officer who

conducted the identification procedure with Quinones

was not the same officer who conducted the

identification procedure with Wendy Bardales. Balderas

argues that the jury “may have been swayed by

testimony regarding the HPD’s use of suggestive

techniques.” Pet. at 23. But Balderas offers no legal

argument of how a separate officer’s tactics in a separate

investigation could have been imputed to Sergeant

Ruland. The State is unaware of any rationale. Thus, the

evidence is immaterial.

In his third Brady argument, Balderas argues

that the State withheld evidence that Alejandro Garcia

stated to prosecutors, “everyone gave [Balderas] guns to

hold.” Pet. at 24. He claims this would have provided an

exculpatory theory for being arrested with the murder

weapon. Id. at 23–24. But “there is no improper

suppression within the meaning of Brady where facts

are already known by the defendant.” United States v.

Diaz, 922 F.2d 998, 1007 (2d Cir. 1990). Obviously,

Balderas would know if he was tasked with holding guns

for other gang members. See 3.SHCR-01 715 (trial

counsel email describing Balderas’s claim that he “did

26

not do anything except provide[] the weapons”). Thus,

there is no suppression.

Balderas also cannot show materiality. His own

witness, Walter Benitez, testified that Balderas was

only arrested with the murder weapon because LTCleader Victor Arevalo dropped the murder weapon off

with Balderas that morning. 28.RR 177–83, 225–26.

Thus, Garcia’s statement is cumulative of Benitez’s

testimony. See Turner v. United States, 582 U.S. 313,

327 (2017) (holding that impeachment evidence was

“largely cumulative of

impeachment evidence

petitioners already had and used at trial” and thus was

immaterial). 9

B.

Balderas’s

mental

claims are meritless.

incompetency

Balderas also asserts that he was incompetent at

trial and that his trial counsel were ineffective for failing

to raise the issue of his mental incompetency Pet. at 24–

25. The test for competency asks whether the defendant

had (1) “a rational as well as factual understanding of

the proceedings against him” and (2) a “sufficient . . .

ability to consult with his lawyer with a reasonable

degree of rational understanding.” Indiana v. Edwards,

554 U.S. 164, 170 (2008) (citing Dusky v. United States,

362 U.S. 402, 402 (1960)). Balderas fails to present any

evidence that he did not have such an understanding or

ability at trial.

In any event, it’s dubious that trial counsel would ever had

called Alejandro Garcia to testify at guilt, as he struck a deal with

the State to testify against Balderas at punishment. 34.RR 156.

9

27

In state court, Balderas presented two expert

reports: a neuropsychological evaluation from Dr.

Robert Ouaou and a psychiatric evaluation from Dr.

Bushan Agharkar. See SHCR-03 302–12 (Ex. FF, Ouaou

report), 290–301 (Ex. EE, Agharkar report). Dr.

Agharkar diagnosed Balderas with PTSD and

schizoaffective disorder, and he also suggested

neuropsychological testing for cognitive deficits. SHCR03 291–300. Dr. Ouaou conducted a neuropsychological

examination of Balderas and found that he suffered from

cognitive defects and below average intellectual

functioning. SHCR-03 302–12.

Completely absent in their reports, though, is any

indication that Balderas didn’t understand the trial

proceedings or lacked the ability to consult with his

attorneys. There is no mention that they reviewed trial

counsel’s files, court reports, or trial counsel statements.

That is particularly telling given that “defense counsel

will often have the best-informed view of the defendant’s

ability to participate in his defense.” Medina v.

California, 505 U.S. 437, 450 (1992).

In fact, the record demonstrates no lack of

competence. Emails from trial counsel show that

Balderas was perfectly aware of the evidence against

him and the exculpatory theories trial counsel needed to

explore. For example, Balderas professed his innocence

to trial counsel by claiming that he only provided

weapons to the gang. 3.SHCR-01 715. Balderas also

testified at his motion for a speedy trial hearing, with no

indication of incompetency. 22.RR 61–74. Finally, trial

28

counsel hired three different mental health experts to

evaluate Balderas, and not one of them indicated that he

might be incompetent. 38.RR 129–30 (Dr. Matthew

Mendel testifying he met with Balderas five times for a

“total of 18 or 20 hours”); 39.RR 140 (Dr. Matthew

Brams testifying he interviewed Balderas for nine

hours); 41.RR 259 (Dr. Jolie Brams testifying she met

with Balderas for “many hours over the course of time”).

C.

Balderas’s alibi-autonomy claim is

meritless.

Balderas asserts his Sixth Amendment right to

autonomy was violated because his trial counsel did not

present an alibi defense. Pet. at 26–28. He relies on the

statements of siblings Anali Garcia, Ileana Cortes, and

Octavio Cortes, who claim that Balderas was at their

apartment on the night of Hernandez’s murder. Id.

The facts underlying this claim have already been

rejected by the CCA. In his initial application, Balderas

raised this as a straightforward IATC claim, alleging

failure to call an alibi witness. 1.SHCR-01 92–98. Trial

counsel provided statements and emails proving that

they spoke with Ileana and Anali and that they never

offered any alibi information. 5.SHCR-01 1471–72, 1487.

The CCA entered findings that trial counsel were

credible and that no alibi witnesses were brought to the

attention of trial counsel. 10.SHCR-01 2863–66. It

further entered findings that Anali and Octavio’s

29

decade-after-the-fact alibi testimony was not credible.

10.SHR-01 2868–74.10

Balderas tries to present this as a claim under

McCoy v. Louisiana, 584 U.S. 414 (2018). McCoy is

inapplicable here, as it concerned trial counsel’s

concession of guilt. Id. at 422–23. At no point did it stand

for the proposition that trial counsel must call certain

witnesses who either (1) have no relevant information or

(2) are not credible; those kinds of determinations must

be reviewed under Strickland v Washington, 466 U.S.

668 (1984). See McCoy, 584 U.S. at 423 (clarifying the

holding “should not displace counsel’s . . . respective trial

management roles”). Balderas’s attempt to extend

McCoy to the strategic decisions of which witnesses to

call is barred under Teague v. Lane, 489 U.S. 288, 310

(1989). There is no authority, other than Strickland,

that controls trial counsel’s strategic decision to not call

a witness they deem unhelpful.

D.

Balderas’s false-testimony claim is

meritless.

Next, Balderas points to jail calls made by Israel

Diaz, which he claims reveal that Diaz “had long sought

a deal from prosecutors in exchange for testifying

Given that the CCA has already rejected the credibility of

Balderas’s alibi witnesses, Balderas’s argument that this claim

should pass through the CCA’s § 5(a)(2) “innocence” gateway is

quite specious. Pet. at 23.

10

30

against Balderas.” 11 Pet. at 28. He further claims that

this rendered false Diaz’s testimony “that he ‘never

asked [the prosecutors] for anything.’” Id.

This Court has “held that due process is violated

when the State knowingly offers false testimony to

obtain a conviction and fails to correct testimony.”

Tucker v. Johnson, 242 F.3d 617, 625–26 (5th Cir. 2001)

(citing Napue v. Illinois, 360 U.S. 264 (1959)). To prove

such a violation, the petitioner must show that the

testimony was “actually false,” that the prosecution

knew the testimony was false, and that the statements

were material. Id. at 626. Materially false testimony is

testimony that, through nondisclosure of the falsity,

creates a “reasonable probability” of a different outcome.

United States v. O’Keefe, 128 F.3d 885, 894 (5th Cir.

1997) (quoting Kyles v. Whitley, 514 U.S. 419, 434

(1995)).

Balderas fails to show any falsity. When Diaz

made the “never asked them for anything” statement, he

was referring to the period between 2007 and 2008 when

he first spoke to prosecutors: “Q: Back in 2007, 2008,

what did you think would be a fair deal for you? A: I

never asked them for anything.” 26.RR 168. Balderas

As best the State can tell, Balderas never offered these jail

calls in state court so that the CCA could review them. Typically

audio exhibits will contain a cover letter indicating that they have

been sent to the CCA, but the State is unable to locate any such

notation in the record. SHCR-03. This seems consistent with the

fact that Balderas failed to cite to any exhibit when discussing the

jail calls. Pet. App. 107a–09a.

11

31

fails to show that Diaz’s answer to this limited inquiry

was false. Even if Diaz’s testimony could be construed as

inconsistent with the jail calls, mere inconsistency does

not establish falsity. See United States v. Griley , 814

F.2d 967, 971 (4th Cir. 1987) (“Mere inconsistencies in

testimony by government witnesses do not establish the

government’s knowing use of false testimony.”

(citing Overton v. United States, 450 F.2d 919, 920 (5th

Cir. 1971)); United States v. Stanford, 823 F.3d 814, 841

(5th Cir. 2016) (finding that, where alleged falsehoods

were “based on apparent evidentiary inconsistencies, it

is questionable whether one could describe the

inconsistencies as false, let alone material”).

Moreover, any evidence impeaching Diaz for his

desire to obtain a plea deal would have been cumulative.

Trial counsel impeached Diaz with the fact that he had

long hoped for a plea deal and discussed potential deals

with his own attorney. 26.RR 168–69. And, of course, it

was no secret that Diaz did get a plea deal and was only

testifying to avoid a capital murder charge and a

potential death sentence. 26.RR 122–24, 169–70. Trial

counsel even elicited for the jury that Diaz was holding

out hope that he would get “probation” in exchange for

cooperation. 26.RR 171. Thus, any “correction” by

pointing out that Diaz wanted a deal from prosecutors

would have been cumulative. See Turner, 582 U.S. at

327.

CONCLUSION

Balderas fails to show this Court possesses

jurisdiction over the matters for which he seeks review

32

or that there are otherwise compelling grounds to issue

a writ of certiorari. Consequently, Balderas’s petition

should be denied.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

JOSH RENO

Deputy Attorney General

for Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals

Division

June 21, 2024

ALI NASSER

Assistant Attorney

General

OFFICE OF THE ATTORNEY

GENERAL OF TEXAS

P.O. Box 12548

Austin, Texas 78711

(512) 936-1400

ali.nasser@oag.

texas.gov