Opposition Brief — David Santiago Renteria, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, et al.

Supreme Court briefNov 16, 2023

Ask Donna

What actually matters in this document.

Text

Nos. 23-6003, 23A440

IN THE

Supreme Court of the United States

DAVID SANTIAGO RENTERIA,

Petitioner,

BOBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTIUTIONS DIVISION; STATE OF TEXAS,

Respondents.

On Petition for a Writ of Certiorari to the Court of Appeals for the

Fifth Circuit and Application for a Stay of Execution

BRIEF IN OPPOSITION

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

JOSH RENO

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 Respondents

CAPITAL CASE

QUESTION PRESENTED

Should this Court grant review and a stay of execution where

Petitioner sought an untimely and frivolous removal to federal court of a

postconviction ministerial proceeding setting an execution date?

LIST OF PROCEEDINGS

State v. Renteria, 20020D00230 (41st Dist. Ct., El Paso County, Tex.)

(convicted and sentenced to death Oct. 2, 2003)

Renteria v. State, 206 S.W.3d at 689, 710 (Tex. Crim. App. 2006) (reversing

death sentence)

State v. Renteria, 20020D00230 (41st Dist. Ct., El Paso County, Tex.)

(resentenced to death May 14, 2008)

Renteria v. State, No. AP-74,829, 2011 WL 1734067 (Tex. Crim. App. May 4,

2011) (affirming death sentence)

Renteria v. Texas, 565 U.S. 1263 (Mar. 19, 2012) (denying petition for writ of

certiorari)

Ex parte Renteria, Nos. WR-65,627-01, -02, & -03 (Tex. Crim. App., Dec. 17,

2014) (denying, dismissing state habeas applications)

Renteria v. Davis, No. 3:15-CV-00062-FM, 2019 WL 611439 (W.D. Tx., Feb. 12,

2019) (denial of the Writ of Habeas Corpus)

Renteria v. Davis, No. 19-70009, 814 F. App’x 827 (5th Cir. May 21, 2020)

(affirming District Court’s denial of the Writ of Habeas Corpus)

Renteria v. Lumpkin, 141 S. Ct. 1412 (2021) (denying writ of certiorari on

federal habeas)

In re State ex rel. Hicks, No. WR-95,092-01, 2023 WL 6074482, at *1 (Tex. Crim.

App. Sept. 18, 2023), reh’g denied (Oct. 26, 2023) (writ of mandamus issued to

trial court)

Renteria v. Lumpkin, No. 3:23-CR-2080-1 (W.D. Tex. Oct. 20, 2023), reconsideration denied (Oct. 31, 2023) (remanding removal proceeding to state

court)

Renteria v. Lumpkin, No. 23-70007 (5th Cir. Nov. 14, 2023) (affirming remand

to state court)

Ex parte Renteria, No. WR-65,627-05 (Tex. Crim. App. Nov. 15, 2023)

(dismissing subsequent habeas application and denying motion for stay of

execution)

iii

TABLE OF CONTENTS

QUESTION PRESENTED ................................................................................... i

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

TABLE OF CONTENTS ..................................................................................... iv

TABLE OF AUTHORITIES ............................................................................... iv

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

STATEMENT OF THE CASE ............................................................................ 3

Facts Concerning Renteria’s Murder of Alexandra Flores ...................... 3

II.

Facts Relevant to Punishment and the Sentencing Phase of Trial ........ 4

III.

Course of State and Federal Proceedings ..................................................6

REASONS FOR DENYING THE PETITION AND A STAY .......................... 10

ARGUMENT ...................................................................................................... 11

Standards of Review ................................................................................ 12

A. The removal standard......................................................................... 12

B. The standard governing stay requests .............................................. 14

II.

Renteria Is Not Entitled to a Writ of Certiorari or a Stay .................... 15

III.

The Lower Courts Properly Held Renteria’s Notice of Removal Was

Untimely and Baseless ............................................................................ 16

Renteria’s notice of removal was untimely, and the district court

lacked jurisdiction to consider it ................................................... 17

Renteria identifies no valid basis for removal of the state court’s

proceeding ...................................................................................... 28

IV.

Renteria was not denied or unable to enforce any protected right

in state court .................................................................................. 33

The Removal Statute Does Not Provide Jurisdiction to Grant a Stay of

Execution, and Renteria Fails to Justify One ........................................ 36

CONCLUSION ................................................................................................... 37

TABLE OF AUTHORITIES

Cases

Page

Alabama v. Conley, 245 F.3d 1292 (11th Cir. 2001) ........................................ 32

Alexander v. MN, No. 22-CV-740, 2022 WL 1572035 (D. Minn. Mar. 29, 2022)

............................................................................................................................. 18

Barber v. Vance, No. 3:16-CV-2105, 2019 WL 267874 (D. Or. Jan. 18, 2019) 20

Barefoot v. Estelle, 463 U.S. 880 (1983) ............................................................ 14

Beatty v. Lumpkin, 52 F.4th 632 (5th Cir. 2022) ............................................. 20

Belyeu v. Johnson, 82 F.3d 613 (5th Cir. 1996)................................................ 30

Cabello v. Texas, 71 F. App’x 315 (5th Cir. 2003) ............................................ 32

Chestnut v. People of State of N.Y., 370 F.2d 1 (2d Cir. 1966) ........................ 32

City of Greenwood v. Peacock, 384 U.S. 808 (1966) ................................... 29, 35

County of Yazoo, Miss. v. Prewitt, No. 23-60073, 2023 WL 7381440 (5th Cir.

Nov. 7, 2023)....................................................................................................... 32

Delavigne v. Delavigne, 530 F.2d 598 (4th Cir. 1976)...................................... 29

Delaware v. Desmond, 792 F. App’x 241 (3d Cir. 2020)................................... 18

Dema v. Arizona, No. CV-07-0726, 2008 WL 2941167 (D. Ariz. July 25, 2008)

............................................................................................................................. 18

Denson v. Williams, 341 F. Supp. 180 (S.D. Tex. 1972)................................... 29

District of Columbia Court of Appeals v. Feldman, 460 U.S. 476 (1983) ....... 27

Ex parte Johnson, 12 S.W.3d 472 (Tex. Crim. App. 2000)............................... 24

Felker v. Turpin, 518 U.S. 651 (1996) ............................................................... 25

Garcia v. Castillo, 431 F. App’x 350 (5th Cir. 2011) ........................................ 15

Georgia v. Meadows, --- F. Supp. 3d ---, 2023 WL 5829131 (N.D. Ga. Sept. 8,

2023) ............................................................................................................. 13, 25

Hill v. McDonough, 547 U.S. 573 (2006) .................................................... 14, 36

Hilton v. Braunskill, 481 U.S. 770 (1987) ........................................................ 15

Howlett By and Through Howlett v. Rose, 496 U.S. 356 (1990) ...................... 31

Idaho v. Oelker, No. 3:20-CV-383, 2020 WL 6081885 (D. Idaho Oct. 15, 2020)

............................................................................................................................. 18

Illinois v. Young, 2012 WL 2031129 (C.D. Ill. June 6, 2012) .......................... 31

In re State of Texas ex rel. Bill D. Hicks, No. WR-95,092-01, 2023 WL 6074482,

at *1 (Tex. Crim. App. Sept. 18, 2023) ....................................................... passim

Johnson v. Mississippi, 421 U.S. 213, 219 (1975) ..................................... passim

Johnson v. People of State of Cal., 473 F.2d 1044 (9th Cir. 1973) .................. 33

Kansas v. Gilbert, Nos. 22-3213 & 22-3230, 22-3229 & 22-3249, 2023 WL

2397025 (10th Cir. Mar. 8, 2023) ...................................................................... 18

Kruebbe v. Beevers, 692 F. App’x 173 (5th Cir. 2017) ...................................... 12

Lance v. Dennis, 546 U.S. 459 (2006) ............................................................... 26

Mackey v. Massachusetts, 582 F. Supp. 3d 1 (D. Mass. 2022) ......................... 29

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720 (5th Cir. 2002) . 13

Massachusetts v. Thomas, No. 23-10789, 2023 WL 4204432 (D. Mass. June 27,

2023) ................................................................................................................... 18

Maze v. Tennessee, No. 3:15-CV-698, 2015 WL 3989125 (M.D. Tex. June 30,

2015) ................................................................................................................... 19

McMullen v. Cain, 726 F. App’x 257 (5th Cir. 2018) ....................................... 32

vii

Medina v. California, 505 U.S. 437 (1992) ....................................................... 31

Miller v. Lambeth, 443 F.3d 757 (10th Cir. 2006) ............................................ 32

Miller v. Louisiana, No. 18-14251, 2019 WL 1293273 (E.D. La. Mar. 1, 2019)

............................................................................................................................. 18

Mnuk v. Texas, No. A-14-CV-1128, 2015 WL 1003863 (W.D. Tex. Mar. 5, 2015)

............................................................................................................................. 13

Nelson v. Campbell, 541 U.S. 637 (2004).............................................. 14, 15, 37

Nken v. Holder, 556 U.S. 418 (2009) ................................................................. 15

Oliver v. Lewis, 891 F. Supp. 2d 839 (S.D. Tex. 2012) ..................................... 29

People of State of N.Y. v. Baker, 354 F. Supp. 162 (S.D. N.Y. 1973) ............... 29

People of State of N.Y. v. Hutchinson, 360 F.2d 759 (2d Cir. 1966) ................ 29

Porter v. Estelle, 709 F.2d 944 (5th Cir. 1983) ................................................. 35

Pruett v. Choate, 711 F. App’x 203 (5th Cir. 2017) .......................................... 26

Robertson v. Ball, 534 F.2d 63 (5th Cir. 1976) ................................................. 32

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ............................................ 27

Scott v. Artis, 2023 WL 6973870 (E.D. Mich. Oct. 23, 2023) ........................... 18

Setts v. Dixon, No. 1:23-CV-99, 2023 WL 4109780 (N.D. Fla. May 30, 2023) 18

Shinn v. Martinez Ramirez, 596 U.S. 366 (2022)............................................. 27

Shoop v. Twyford, 596 U.S. 811 (2022) ....................................................... 20, 26

Smith v. Winter, 717 F.2d 191 (5th Cir. 1983) ........................................... 29, 32

Spencer v. Texas, 385 U.S. 554 (1967) .............................................................. 31

St. James Associates v. Larsen, 67 F. App’x 684 (3d Cir. 2003) ...................... 32

viii

Staley v. State, 420 S.W.3d 785 (Tex. Crim. App. 2013) ............................ 24, 27

State of Ga. v. Rachel, 384 U.S. 780 (1966) .......................................... 20, 29, 31

State of Iowa v. Johnson, 976 F. Supp. 812 (N.D. Iowa 1997) ........................ 30

Thorp Finance Corp. v. Lehrer, 587 F. Supp. 533 (E.D. Wis. 1984) ................ 29

Tyler v. Schollmeyer, No. 4:19-CV-2621, 2019 WL 5424379 (E.D. Mo. Oct. 23,

2019) ................................................................................................................... 18

United States v. Belc, No. 22-12558, 2023 WL 6232474 (11th Cir. Sept. 26,

2023) ................................................................................................................... 29

United States v. Moore, 71 F.4th 392 (5th Cir. 2023) ...................................... 22

Walker v. Epps, 287 F. App’x 371 (5th Cir. 2008) ............................................ 36

Whitestone Sav. and Loan Ass’n v. Romano, 484 F. Supp. 1324 (E.D. N.Y. 1980)

............................................................................................................................. 29

Williams v. Corrigan, No. 22-2096, 2023 WL 3868657 (6th Cir. May 12, 2023)

....................................................................................................................... 26, 18

Williams v. Holloway, No. 3:14-CV-126, 2014 WL 5529742 (E.D. Vir. Oct. 31,

2014) ................................................................................................................... 18

Woods v. Weaver, 13 F. App’x 304 (6th Cir. 2001) ........................................... 26

Yates v. United States, 574 U.S. 528 (2015) ..................................................... 23

Statutes and Rules

28 U.S.C. § 1443(1) ..................................................................................... passim

28 U.S.C. § 1447(c) ............................................................................................. 14

28 U.S.C. § 1455(a) ............................................................................................ 12

28 U.S.C. § 1455(b)(1) ................................................................................. passim

28 U.S.C. § 1455(b)(3) ...................................................................... 14, 23, 25, 36

28 U.S.C. § 1455(b)(4) ........................................................................................ 14

28 U.S.C. § 1455(b)(5) ........................................................................................ 13

28 U.S.C. § 1455(c) ............................................................................................. 20

28 U.S.C. § 2244(b)(3)(A) ................................................................................... 25

28 U.S.C. § 2283 ..................................................................................... 14, 25, 36

Fed. R. App. Proc. 8(a)(1)............................................................................... 3, 10

Fed. R. Civ. P. 11(b)(1) ....................................................................................... 12

Fed. R. Civ. P. 11(b)(2) ....................................................................................... 12

Fifth Circuit Rule 8 ........................................................................................ 3, 10

Tex. Code Crim. Proc. art. 11.071 § 5 ......................................................... 26, 34

Tex. Code Crim. Proc. art. 62.101(a)................................................................. 24

Secondary Sources

Black’s Law Dictionary (11th ed. 2019) ............................................................ 17

BRIEF IN OPPOSITION

Respondents respectfully submit this brief in opposition to the petition

for a writ of certiorari and application for a stay of execution filed by David

Renteria.

Petitioner David Renteria was convicted of murdering five-year-old

Alexandra Flores twenty years ago. See Renteria v. State, 206 S.W.3d 689, 693

(Tex. Crim. App. 2006). Renteria is scheduled to be executed after 6:00 p.m.

(Central Time) tonight, November 16, 2023. Renteria has repeatedly and

unsuccessfully challenged his conviction and sentence in state and federal

court. He has exhausted his postconviction remedies and, accordingly, the state

trial court scheduled his execution. See In re State of Texas ex rel. Bill D. Hicks,

No. WR-95,092-01, 2023 WL 6074482, at *1 (Tex. Crim. App. Sept. 18, 2023).

After the state trial court scheduled Renteria’s execution, he sought to

vacate the court’s execution order and warrant, and he requested a discovery

order granting him access to the El Paso County District Attorney’s files. See

id. The trial court granted Renteria’s requests. See id. But because the trial

court lacked jurisdiction to do so, the El Paso County District Attorney sought

mandamus relief from the Texas Court of Criminal Appeals (CCA). See id. The

CCA granted relief and ordered the trial court to rescind its orders purporting

to vacate its execution order and warrant and to rescind its discovery order. Id.

Renteria then sought a novel and unsupported postconviction removal to

federal court of the state trial court’s ministerial proceeding setting an

execution date. ROA.4–20. 1

The district court properly rejected Renteria’s request and remanded the

case to the state court. ROA.273–74. After Renteria moved for reconsideration,

ROA.277–86, the district court again rejected Renteria’s unsupported removal

effort, ROA.323–36. The district court found Renteria’s removal request was

significantly untimely and failed to satisfy the applicable standard under 28

U.S.C. § 1443(1). ROA.323–36. The Fifth Circuit affirmed, stating “Renteria’s

Notice [of Removal] is decades late and fails to seek the removal of a

‘prosecution[,]’” and was substantively deficient because “he never claimed a

loss of equal protection due to racial discrimination.” Renteria v. Lumpkin, No.

23-70007, slip op. at 5, 8 (5th Cir. Nov. 14, 2023). The lower courts’ conclusions

were indisputably correct. Indeed, Renteria offered no plausible support for his

attempt to remove a ministerial postconviction state court proceeding to

federal court decades after he was prosecuted, and he made no viable effort in

the district court to show his request met the statutory criteria. Indeed,

Renteria asks this Court to overturn its almost fifty-year-old precedent without

“ROA” refers to the record on appeal filed in the court below.

pointing to any reason for doing so, e.g., a split among the circuit courts. This

Court should affirm the lower court.

For the same reasons, Renteria cannot justify a stay of execution based

on a frivolous attempt to remove ministerial, postconviction state court

proceedings to federal court. Initially, Renteria failed to first request a stay in

the district court as required by Fed. R. App. P. 8(a) and 5th Cir. R. 8.1, and he

makes no showing that such a request would have been impracticable. See

Renteria v. Lumpkin, No. 23-70007, slip op. at 4 n.2 Moreover, Renteria fails

to identify any authority that gives a federal court jurisdiction to grant a stay

of execution. He is also disentitled to a stay of execution because the equities

weigh heavily against him in light of the extraordinarily dilatory nature of his

removal request and where he failed entirely to show any remedy was available

in federal court. Therefore, this Court should deny Renteria’s petition for a writ

of certiorari and his motion for a stay of execution.

STATEMENT OF THE CASE

Facts Concerning Renteria’s Murder of Alexandra Flores

[Renteria] was a 32[-]year-old registered sex offender on

probation for committing an indecency offense against an eightyear-old girl when he was arrested for the murder of the five-yearold girl in this case. On November 18, 2001, this five-year-old

victim disappeared from a Wal-Mart store where she was shopping

with her parents. The next day, her nude, partially burned body

with a partially burned plastic bag over her head was discovered

in an alley sixteen miles from the Wal-Mart. When she was set on

fire, she already had been manually strangled. The medical

examiner testified that the victim also received two blows to her

head. The medical examiner also testified that the victim could

have been sexually assaulted, although he found no physical

evidence of sexual assault.

[Renteria’s] palm print matched a latent palm print that was

lifted from the plastic bag covering the victim’s head. A search of

[Renteria’s] van revealed blood stains containing the victim’s DNA.

[Renteria] and his van were at the Wal-Mart when the victim

disappeared. A Wal-Mart security guard briefly spoke to

[Renteria], and Wal-Mart surveillance cameras showed a man

wearing a light-colored hat, a dark shirt, and dark shorts walking

out with the victim. Earlier that day [Renteria], wearing clothes

very similar to those worn by the man walking out of the Wal-Mart

store, had been at a nearby Sam’s store with his father. While at

Sam’s, [Renteria] purchased oranges, and the victim’s autopsy

revealed pieces of orange wedges in her stomach.

[Renteria] was arrested on December 3, 2001, and he gave a

written custodial statement to the police. This statement was not

admitted into evidence at [Renteria’s] trial. In this statement,

[Renteria] claimed that an “Azteca” gang member nicknamed

“Flaco,” whom [Renteria] had known in jail, and several other

persons, whom [Renteria] did not know, were primarily

responsible for the victim’s murder. [Renteria] claimed that he

helped these people commit the offense out of fear they would harm

his family. He also claimed that his involvement in the offense was

limited to luring the victim out of the Wal-Mart and helping

“Flaco” and the others dispose of and burn her body after the others

had murdered her.

Renteria, 206 S.W.3d at 693–94.

II.

Facts Relevant to Punishment and the Sentencing Phase of Trial

The State presented evidence of the capital offense at the

punishment trial. . . .

The State also presented evidence of Renteria’s troubles with

the law in the years leading up to the instant offense. In 1992, he

committed the offense of indecency with a child. The victim of that

offense testified that Renteria molested her in her home when she

was seven years old. She testified that Renteria called her into the

bathroom where he was sitting on the toilet with his pants and

underwear pulled down. Renteria asked her to sit on his lap, told

her “that his private area hurt and that he needed [her] to rub it

for him,” and touched her in her “private area in the front.” They

later “ended up on the floor,” where Renteria unsuccessfully

attempted to have intercourse with her and she saw him ejaculate.

Afterward, Renteria told her “not to tell anybody” about their

“secret.” Renteria pled guilty to this offense in 1994 and was placed

on deferred adjudication probation for ten years.

While on probation, Renteria committed three driving while

intoxicated (DWI) offenses in 1995, 1997, and 2000. . . .

Renteria violated the terms of probation at various times by

drinking alcohol, staying out past curfew, driving without a valid

driver’s license, traveling to Mexico, and being around children. . .

. The evidence further showed that Renteria was dishonest with

his sex-offender treatment counselor, his probation officers, and

his employers. Norma Reed, his counselor, testified that Renteria

initially admitted committing the indecency with a child offense

but then denied it until he was faced with possible termination

from the program. When Reed administered an “Abel Assessment”

test, Renteria scored 85% on the “social desirability” section, which

indicated “a significant concern that he was likely not to be

responding truthfully on the self-report portions [of the test].”

Renteria informed Reed after the fact that he had been living with

his eighteen-year-old pregnant girlfriend, and he admitted that he

failed to tell his probation officer this information. When Renteria

was employed at a parking lot less than a block away from a school,

he informed probation officer Rebecca Gonzales that his employer

was not aware of his indecency offense. Reed testified that

Renteria informed her in 1999 that he had lost a job because he

had lied about his criminal history on his job application. . . .

Renteria v. State, No. AP-74,829, 2011 WL 1734067, at *1–2 (Tex. Crim.

App. May 4, 2011).

Renteria presented evidence through the testimony of his

family, his childhood dance instructor, a high school classmate, the

staff at his school, and a mental health expert. They described him

as a good kid—quiet, friendly, respectful, studious, popular, altar

boy, National Honors Society member, scholarship recipient, and

extracurricular activity participant—whose life came apart after

his arrest and conviction for indecency with a child.

Renteria v. Davis, No. EP-15-CV-62, 2019 WL 611439, at *4 (W.D. Tex.

Feb. 12, 2019).

III.

Course of State and Federal Proceedings

Renteria was convicted and sentenced to death for the murder of five-

year-old Alexandra Flores. See Renteria v. Davis, 814 F. App’x 827, 828–29 (5th

Cir. 2020). The CCA upheld Renteria’s conviction on direct appeal but reversed

on punishment and remanded for a new punishment trial. Renteria v. State,

206 S.W.3d at 710. Renteria filed his first state application for a writ of habeas

corpus prior to the CCA’s ruling on direct appeal. See Ex parte Renteria, No.

65, 627-01, 2014 WL 7191058, at *1 (Tex. Crim. App. Dec. 17, 2014). The CCA

denied Renteria’s claims in his first application that challenged his conviction

and dismissed as moot Renteria’s claims that challenged his death sentence.

Id.

At Renteria’s second punishment trial, he was again sentenced to death.

See Renteria v. State, 2011 WL 1734067, at *1. Following the second

punishment trial, the CCA upheld Renteria’s death sentence on direct appeal.

Id. Renteria filed a second state application for a writ of habeas corpus. See Ex

parte Renteria, Nos. WR-65,627-02, WR-65,627-03, 2014 WL 7188848, at *1

(Tex. Crim. App. Dec. 17, 2014). The CCA denied Renteria’s claims in his

second application that challenged his death sentence. Id. The CCA construed

Renteria’s claims in his second application that challenged his conviction as

constituting a separate and subsequent application and dismissed it as such.

Id.

Renteria then filed a federal habeas petition. See Renteria v. Davis, 2019

WL 611439, at *4. During the pendency of his petition, Renteria requested a

stay of the district court’s proceedings to investigate a statement provided to

the El Paso Police Department. See Order Denying Pet’r’s Mot. to Stay

Proceedings, Renteria v. Davis, No. 3:15-CV-62 (W.D. Tex. June 8, 2018), ECF

No. 111. The court denied the request. 2 Id. In a sealed ex parte motion,

Renteria requested funding to investigate the statement. See Order Denying

Pet’r’s Ex Parte and Sealed Mot. for Funds, Renteria v. Davis, No. 3:15-CV-62

(W.D. Tex. June 19, 2018), ECF No. 121. The district court denied the request.

Id. The court later denied Renteria’s petition and his motion to alter or amend

its judgment. Renteria v. Davis, 2019 WL 611439, at *88–89; Order Denying

In its order, the lower court noted that claims made by the purported witness

were inconsistent with the evidence—i.e., the date of the murder and whether

Alexandra’s eyes had been removed and her legs broken by her assailant. Id. at 8. In

denying federal habeas relief, the court discussed evidence of Renteria’s dishonesty,

deception, and unwillingness to admit even minor flaws. Renteria v. Davis, 2019 WL

611439, at *12–14.

Pl’s Mot. to Alter or Amend J., Renteria v. Davis, No. 3:15-CV-62 (W.D. Tex.

Apr. 10, 2019), ECF No. 128.

Renteria next filed in the Fifth Circuit an application for a certificate of

appealability, which the court denied. Renteria v. Davis, 814 F. App’x at 835.

The court of appeals also affirmed the lower court’s denial of his motion for

funding. Id. This Court denied Renteria’s petition for a writ of certiorari.

Renteria v. Lumpkin, 141 S. Ct. 1412 (2021).

In May 2023, the District Attorney’s Office for El Paso County moved the

state trial court to schedule Renteria’s execution. ROA.89–94. In June 2023,

Renteria’s federal habeas counsel requested access to the District Attorney’s

Office’s file. ROA.137–39, 141. On June 9, the state trial court scheduled

Renteria’s execution for November 16, 2023. ROA.146–48. The trial court later

vacated and reissued its execution order and warrant, again scheduling

Renteria for execution on November 16, 2023. ROA.150–54, 156–70, 172–73,

175–80, 182–84. Renteria requested that the court reconsider its execution

order and moved the court to compel the District Attorney’s Office to provide

counsel access to its files. See In re State ex rel. Bill D. Hicks, 2023 WL 6074482,

at *1. Renteria requested and received a hearing in the state trial court

regarding his requests. See id.; ROA.34–72. The court then vacated its

execution order and ordered the District Attorney’s Office to make its files

available to Renteria. See In re State ex rel. Hicks, 2023 WL 6074482, at *2.

The District Attorney’s Office sought mandamus relief in the CCA, which

the court granted. See id. The CCA found the trial court had no authority under

state law to vacate the execution order and warrant. Id. The CCA also found

the trial court lacked jurisdiction to compel the District Attorney’s Office to

comply with a discovery order. Id. at *2–3. Accordingly, the CCA ordered the

trial court to rescind its orders purporting to vacate the execution order and

directing the clerk to withdraw the execution warrant and to rescind its

discovery order. Id. at *3. Renteria moved for rehearing and a stay of execution,

which the CCA denied. Order, In re State ex rel. Bill D. Hicks, No. WR-95,09201 (Tex. Crim. App. Oct. 25, 2023).

One month later, Renteria filed in the district court a Notice of Removal

in which he complained of the CCA’s disposition of the District Attorney’s

Office request for mandamus relief and the proceedings in the trial court.

ROA.4–20. The district court initially scheduled a motion hearing. ROA.245–

46. But after Respondents filed a Motion for Summary Remand, ROA.247–71,

the court granted that motion and remanded the case to state court. ROA.273–

74. Renteria moved for reconsideration of the district court’s decision,

ROA.277–306, which the court denied, ROA.323–36. Renteria then filed a

notice of appeal of the district court’s orders remanding his case to state court

and denying his motion for reconsideration. ROA.337. The Fifth Circuit

affirmed, holding Renteria’s removal request was “deficient not only

procedurally”—because it was untimely—but also “substantively”—because

the request failed to meet the statutory criteria. Renteria v. Lumpkin, No. 2370007, slip op. at 8. Renteria filed a petition for a writ of certiorari and an

application for a stay of execution. This brief in opposition follows.

Renteria did not file in the district court a motion for a stay of execution.

See id. at 4 n.2; Fed. R. App. Proc. 8(a)(1) (stating that a party must ordinarily

first move in the district court for a stay of a district court’s order or judgment).

Nor did he show why doing so would have been impracticable, a mandatory

showing if such a motion is first filed in the court of appeals. Fed. R. App. P.

8(a)(2)(A). Additionally, Renteria failed to comply with 5th Cir. R. 8.1, which

requires documentary proof of a motion for a stay and the order denying a stay

in district court, or a statement of why such proof cannot be provided.

Renteria also filed in the state trial court another motion to vacate the

order setting his execution and requesting an order to show cause against a

finding of contempt, an Application for Writ of Habeas Corpus Under Article I,

§ 12 of the Texas Constitution and Texas Code of Criminal Procedure Article

11.05, and a subsequent application for a writ of habeas corpus with an

accompanying motion for a stay of execution. The trial court denied Renteria’s

motion to vacate and his Article 11.05 application, and it forwarded the

subsequent application to the CCA. Renteria’s appeal of the denial of his

Article 11.05 application remains pending. On November 15, 2023, the CCA

dismissed Renteria’s subsequent application and denied his motion for a stay

of execution. Ex parte Renteria, No. WR-65,627-05 (Tex. Crim. App. Nov. 15,

2023).

REASONS FOR DENYING CERTIORARI AND A STAY

Renteria sought an untimely, unprecedented, and unsupported removal

to federal court of a postconviction, ministerial state court proceeding twenty

years after he was prosecuted. The removal request was facially contrary to

this Court’s precedent. This Court should deny Renteria’s petition for a writ of

certiorari and his application for a stay of execution because the lower courts

correctly concluded Renteria’s removal request was untimely and baseless

under the applicable statutes and precedent. Moreover, this Court should deny

a stay of execution because Renteria’s removal request was frivolous and

dilatory, he failed to comply with federal and local rules for such stays, and

this Court lacks jurisdiction to enter a stay in these proceedings.

ARGUMENT

Renteria sought to remove to federal court a long-final postconviction

proceeding twenty years after he was prosecuted. His removal request was

decades untimely and contrary to this Court’s precedent. He provides no basis

on which to overturn decades of precedent to create a novel end-run around

federal habeas jurisdiction and to give federal courts ongoing supervisory

authority over state court criminal postconviction proceedings. His petition for

a writ of certiorari and his application for a stay of execution should be denied.

Standards of Review

The removal standard

Section 1433(1), on which Renteria relied to remove the state court

proceeding to federal court, provides that a criminal prosecution commenced

in a state court may be removed by the defendant to the appropriate United

States district court if the prosecution is against “any person who is denied or

cannot enforce in the courts of such State a right under any law providing for

the equal civil rights of citizens of the United States[.]” But only rights arising

“under a federal law providing for specific civil rights stated in terms of racial

equality” qualify. Johnson v. Mississippi, 421 U.S. 213, 219 (1975) (citation and

quotation marks omitted). Section 1455(b) requires that, except for good cause,

a notice of removal of a criminal prosecution be filed not later than thirty days

after the arraignment in state court or any time before trial, whichever date is

earlier. 28 U.S.C. § 1455(b)(1). 3 A federal court may only issue a writ of habeas

Renteria’s request for removal was based on § 1443(1). ROA.4. Section 1455

“merely provides procedures that must be followed in order to remove a criminal case

from state court when a defendant has the right to do so under another provision,

such as 28 U.S.C. § 1443.” Kruebbe v. Beevers, 692 F. App’x 173, 176 (5th Cir. 2017)

(per curiam). Notably, § 1455(a) requires that a notice of removal be “signed pursuant

to Rule 11 of the Federal Rules of Civil Procedure and contain[ ] a short and plain

statement of the grounds for removal[.]” As discussed herein, Renteria failed to show

the notice of removal was not presented for an improper purpose, e.g., unnecessary

corpus pursuant to the statute if summary remand is not ordered and if the

defendant is in custody “on process issued by the State court[.]” 28 U.S.C.

§ 1455(b)(5), (c).

The removing party invoking federal jurisdiction has the burden of proof

on a motion to remand. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276

F.3d 720, 723 (5th Cir. 2002). Removal jurisdiction raises significant

federalism concerns, so if there is any doubt that removal is permissible,

“ambiguities are construed against removal because the removal statute

should be strictly construed in favor of remand.” Id.; see Cameron v. Johnson,

390 U.S. 611, 618 (1968) (“[A] federal district court should be slow to act where

its powers are invoked to interfere by injunction with threatened criminal

prosecutions in a state court.” (citation and quotation marks omitted)); Arizona

v. Maypenny, 451 U.S. 232, 243 (1981) (recognizing “strong judicial policy

against federal interference with state criminal proceedings” (citation

omitted)); Georgia v. Meadows, --- F. Supp. 3d ---, 2023 WL 5829131, at *2–3

(N.D. Ga. Sept. 8, 2023) (recognizing the strong judicial policy against federal

interference with state criminal proceedings); Mnuk v. Texas, No. A-14-CV1128, 2015 WL 1003863, at *2 (W.D. Tex. Mar. 5, 2015) (“Only a very small

class of criminal cases are removable to federal court.”). If it appears on the

delay, or that its legal contentions are warranted by existing law or a nonfrivolous

argument for extending existing law. Fed. R. Civ. P. 11(b)(1), (2).

face of the notice and any exhibits that removal shall not be permitted, the

court shall summarily remand the case to the state court, 28 U.S.C.

§ 1455(b)(4). “If at any time before final judgment it appears that the district

court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C.

§ 1447(c) (emphasis added).

The standard governing stay requests

“A court of the United States may not grant an injunction to stay

proceedings in a State court except as expressly authorized by Act of Congress,

or where necessary in aid of its jurisdiction, or to protect or effectuate its

judgments.” 28 U.S.C. § 2283. A notice of removal does not stay the state court’s

proceedings. 28 U.S.C. § 1455(b)(3). Moreover, 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.” Hill v. McDonough, 547 U.S. 573, 583–84 (2006) (citing

Nelson v. Campbell, 541 U.S. 637, 649–50 (2004)). Assuming this Court has

jurisdiction to grant a stay of execution in these proceedings, Renteria 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 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.

Renteria Is Not Entitled to a Writ of Certiorari or a Stay.

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 Renteria’s petition, let alone amplification

thereof. Left with no true ground for review in his briefing, the only reasonable

conclusion is that Renteria seeks mere error correction. But that is plainly not

a good reason to expend the Court’s limited resources, particularly where the

lower courts’ “error” was declining to depart from this Court’s decades-old

precedent. See Sup. Ct. R. 10 (“A petition . . . is rarely granted when the

asserted error consists of . . . the misapplication of a properly stated rule of

law.”). Critically, Renteria 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, Renteria is not entitled to a writ of certiorari or a stay of

execution as to his untimely and baseless removal request.

III.

The Lower Courts Properly Held Renteria’s Notice of Removal

Was Untimely and Baseless.

The lower courts’ holdings that Renteria’s notice of removal was

untimely and unauthorized were correct for several reasons. First, Renteria’s

request was indeed untimely, and he failed to show the district court had

jurisdiction to entertain his request decades after his prosecution and all his

appeals concluded and where he sought to remove a postconviction, postmandate, ministerial state court proceeding scheduling an execution date, not

a criminal prosecution. 4 See 28 U.S.C. § 1455(b)(1). Second, his notice was

See In re State ex rel. Ogg, No. WR-93,812-02, 2022 WL 2344100, at *2 (Tex.

Crim. App. June 29, 2022) (“It is not disputed that a trial court has a ministerial duty

to carry out a sentence imposed. . . . Although a trial court is not required to set an

execution date immediately upon the completion of [certain] events, a question

facially inadequate to justify removal because it did not allege a denial of a

right that arose under a federal law that provides for specific rights stated in

terms of racial equality. Renteria effectively concedes this point but asks this

Court to overturn its precedent from more than forty years ago. Pet. Cert. 20,

26. Third, Renteria failed to show he was unable to enforce any relevant federal

right in state court. Renteria’s petition and his application for a stay of

execution should be denied.

Renteria’s notice of removal was untimely, and the district

court lacked jurisdiction to consider it.

First, Renteria’s notice of removal was excessively untimely, and the

nature and untimeliness of the notice underscored the absence of jurisdiction

in the district court. Renteria asserts his interpretation of § 1455(b)(1) is a

faithful textual reading of the statute. Pet. Cert. 28. But his notice did not seek,

as the statute requires, removal of his criminal prosecution to federal court—

his prosecution occurred decades ago, and his appeals are long final. 28 U.S.C.

§ 1455(b)(1); see Renteria, 2011 WL 1734067, at *1; Prosecution, Black’s Law

Dictionary (11th ed. 2019) (“A criminal proceeding in which an accused person

is tried”). Removal of Renteria’s prosecution was simply an impossibility.

Instead, Renteria sought removal to federal court of a ministerial state court

remains as to how broad a trial court’s discretion is in deciding when to set an

execution date.” (emphasis added)).

postconviction proceeding. But he has identified no precedent that indicates

such a removal is permissible or that the district court had jurisdiction to

consider his request since judgment was entered by the state court and became

final years ago. 5 Many courts have held that § 1455 does not provide for

postconviction removal. 6 The many cases in which courts have so held stand in

See Idaho v. Oelker, No. 3:20-CV-383, 2020 WL 6081885, at *1 (D. Idaho Oct.

15, 2020) (“[E]ven if Oelker’s criminal case has come to an end, this Court does not

have jurisdiction. Any disagreements Oelker has with his state court proceedings

must be taken up in that forum[.]”); Tyler v. Schollmeyer, No. 4:19-CV-2621, 2019 WL

5424379, at *4–5 (E.D. Mo. Oct. 23, 2019) (“In the instant case, Plaintiff has received

adverse judgments from the state courts, and is now attempting to obtain a federal

forum by characterizing this action as one for removal, when he is actually seeking

to overturn those rulings. Removal in such circumstances is not permissible.”)

(citations omitted); Williams v. Holloway, No. 3:14-CV-126, 2014 WL 5529742, at *2

(E.D. Vir. Oct. 31, 2014) (“. . . Williams’s criminal prosecution concluded in 2005 when

the Circuit Court entered the judgment of conviction.”); Dema v. Arizona, No. CV-070726, 2008 WL 2941167, at *10 (D. Ariz. July 25, 2008) (applying 28 U.S.C. § 1446);

see also Massachusetts v. Thomas, No. 23-10789, 2023 WL 4204432, at *2 (D. Mass.

June 27, 2023).

See, e.g., Williams v. Corrigan, No. 22-2096, 2023 WL 3868657, at *2 (6th Cir.

May 12, 2023) (“Williams’s removal petition was untimely given that it was filed

[fifteen] years after his conviction.”); Kansas v. Gilbert, Nos. 22-3213 & 22-3230, 223229 & 22-3249, 2023 WL 2397025, at *1 (10th Cir. Mar. 8, 2023) (“[B]ecause the

criminal cases that Gilbert attempted to remove from state court were closed, the

district court correctly concluded it had no choice but to dismiss the cases.”); Delaware

v. Desmond, 792 F. App’x 241, 243 n.1 (3d Cir. 2020) (agreeing with district court’s

conclusion that postconviction removal petition was untimely); Scott v. Artis, 2023

WL 6973870, at *2 (E.D. Mich. Oct. 23, 2023) (“Petitioner’s attempt to remove his

1998 criminal case to federal court is untimely.” (citing Corrigan, 2023 WL 3868657,

at *2)); Setts v. Dixon, No. 1:23-CV-99, 2023 WL 4109780, at *1 (N.D. Fla. May 30,

2023); Alexander v. MN, No. 22-CV-740, 2022 WL 1572035, at *1 (D. Minn. Mar. 29,

2022) (“Alexander’s state-court criminal proceedings, including his trial, ended years

ago. There is nothing pending for Alexander to remove to federal court.”), report and

recommendation adopted, No. 22-740, 2022 WL 1570713, at *1 (D. Minn. May 18,

2022); Miller v. Louisiana, No. 18-14251, 2019 WL 1293273, at *2 (E.D. La. Mar. 1,

2019) (“[T]he statute clearly does not contemplate removal of a case after conviction.”

stark contrast to the sheer absence of any support for Renteria’s interpretation

of § 1455. The absence of support for Renteria’s interpretation necessarily

means he cannot identify any reason for this Court to grant review. Sup. Ct.

R. 10.

Moreover, § 1455(b)(1) requires that a “notice of removal of a criminal

prosecution shall be filed not later than [thirty] days after the arraignment in

the State court, or at any time before trial, whichever is earlier, except for good

cause[.]” Renteria was indicted, convicted, and sentenced to death twenty years

ago. See Renteria v. State, 2011 WL 1734067, at *1. His punishment retrial

resulted in a second death sentence in 2008. Id. His direct appeal concluded in

2011. Id. His state habeas proceedings concluded almost ten years ago. See Ex

parte Renteria, 2014 WL 7188848, at *2. His federal habeas proceedings

concluded almost three years ago. Renteria v. Davis, 141 S. Ct. 1412 (2021). He

has entirely failed to articulate any statutory or equitable basis on which to

permit removal of a ministerial postconviction proceeding where the statute

(emphasis in original)), report and recommendation adopted, 2019 WL 1277522, at *1

(E.D. La. Mar. 20, 2019); Barber v. Vance, No. 3:16-CV-2105, 2019 WL 267874, at *2

(D. Or. Jan. 18, 2019); Larose v. Missouri, No. 4:17-CV-1962, 2017 WL 3217136, at

*2–3 (E.D. Miss. July 28, 2017) (petition seeking removal of state postconviction

proceeding was untimely because those proceedings could “no longer be considered a

state criminal prosecution that can be removed pursuant to 28 U.S.C. § 1443”); Maze

v. Tennessee, No. 3:15-CV-698, 2015 WL 3989125, at *2 (M.D. Tex. June 30, 2015)

(“[S]ince the matter is already on appeal, it is perfectly clear that removal of this

action should not be permitted.”).

provides for removal of a criminal prosecution that is sought pretrial. 7 28

U.S.C. § 1455(b)(1). Therefore, the district court properly held the removal

statute does not reach postconviction. ROA.330–33.

Renteria argued the district court erred in holding his removal request

was untimely because the court purportedly relied on dicta from the Supreme

Court’s opinion in State of Ga. v. Rachel, 384 U.S. 780 (1966), and because the

court relied on legislative history to hold postconviction removals are

impermissible. Neither argument shows any error in the district court’s

judgment.

First, Renteria fails to justify his construction of § 1455(b)(1) such that a

state criminal proceeding can be removed any time—even decades—

postconviction. Assuming the statute is unambiguous as Renteria suggests, it

unambiguously provides only for removal of criminal prosecutions before trial.

28 U.S.C. § 1455(b)(1). Specifically, the statute provides for removal of a

Notably, § 1455(c) contemplates that a removal petitioner will be in custody on

process issued by a state court. Renteria is not in state custody pursuant to process—

he is in custody pursuant to a decades-long final state court judgment of conviction.

See Renteria v. State, 2011 WL 1734067, at *1. Renteria failed to articulate how a

federal court could have jurisdiction to order Respondents to either transport him

more than 800 miles to El Paso for a hearing or surrender custody to the United

States Marshals. See 28 U.S.C. § 1455(c); cf. Shoop v. Twyford, 596 U.S. 811, 822–24

(2022) (holding federal district court erred in ordering transport of state prisoner in

§ 2254 proceeding, especially where it delays resolution of case and presents serious

risk to public safety); Beatty v. Lumpkin, 52 F.4th 632, 634 (5th Cir. 2022) (holding

federal district court lacks jurisdiction to order state prisoner unshackled absent

pending § 2254 litigation).

criminal prosecution—not an appeal—not later than thirty days after

arraignment, or any time before trial, whichever date is earlier. Id. Thus, the

statute plainly envisions only removals of state court criminal prosecutions

prior to trial. See id. It provides an exception for good cause, id., but Renteria

provides no reason to conclude Congress intended the statute’s oblique

allowance for filing “at a later time” to drastically alter the meaning of a

“criminal prosecution” or to indefinitely allow for removal to federal court of

state court appeals, state habeas proceedings, or ministerial state court

proceedings scheduling execution dates. Such postconviction proceedings are

commonplace in capital cases yet, under Renteria’s interpretation of

§ 1455(b)(1), the mere existence of those proceedings means “good cause” may

exist to escape the statute’s pre-trial time limits simply because a petitioner

alleges a decision by a court during the course of the appeals deprived him of

equal protection. Such an interpretation of the statute is baseless and absurd.

Renteria suggests his interpretation of “good cause” does not envision

removal of any case at any time because he did not have a right to removal

until the CCA issued its mandamus opinion. Pet. Cert. 27. But he provides no

limiting principle other than the application of his expansive interpretation to

his own case. Indeed, if Renteria had a right to removal in postconviction

proceedings as far removed from a criminal prosecution as the setting of an

execution date, then such a right could arise any time an inmate alleged he

was denied equal treatment during an appeal or a state habeas proceeding.

There is no precedent that creates the open-ended potential for removal at

every decision point that an inmate encounters in state court after his

conviction. Again, he provides no support for his interpretation of § 1455(b).

Moreover, it is entirely illogical to suggest Congress intended

§ 1455(b)(1)’s opening clause to restrict timeliness of a removal petition to pretrial deadlines but for the good cause exception to swallow the rule by

extending the time for removal indefinitely even after exhaustion of

postconviction remedies. The only logical conclusion is that the good cause

exception must relate to the pre-trial period. Consequently, irrespective of

whether this Court’s statement in Rachel the district court cited was dicta, the

lower courts did not err in relying on it—as well as numerous lower court

opinions—in finding Renteria’s notice of removal untimely. ROA.300–03.

Renteria cannot identify any error in the absence of controlling or persuasive

authority in his favor.

Second, because Renteria’s proposed interpretation of § 1455(b)(1) would

plainly yield such absurd and unprecedented results that would defeat the

intent of the statute, it was permissible to consider either canons of

construction or legislative history. See United States v. Moore, 71 F.4th 392,

395 (5th Cir. 2023). And as the district court noted, legislative history plainly

indicates that § 1455(b)(1) does not allow for postjudgment removal. ROA.330–

31. Moreover, application of canons of statutory construction yields the same

inescapable conclusion. See Yates v. United States, 574 U.S. 528, 543–45 (2015)

(discussing the principles of construction noscitur a sociis, which counsels

courts “to avoid ascribing to one word a meaning so broad that it is inconsistent

with its accompanying words, thus giving unintended breadth to the Acts of

Congress,” and ejusdem generis, which instructs that “where general words

follow specific words in a statutory enumeration, the general words are usually

construed to embrace only objects similar in nature to those objects

enumerated by the preceding specific words”) (cleaned up). As discussed above,

it is flatly illogical to ascribe as broad a meaning to the phrase “at a later time”

as Renteria does. See id.; Renteria v. Lumpkin, No. 23-70007, slip op. at 7. The

correctness of the district court’s interpretation of the statute is confirmed by

the conspicuous absence in Renteria’s briefing of any citation to a case in which

postconviction removal of a criminal case was permitted.

Renteria also argued § 1455(b)(1)’s use of the phrase “at a later time”

unambiguously provides for postconviction removal because § 1455(b)(3)

indicates a state court prosecution can proceed except that a judgment of

conviction cannot be entered unless the prosecution is first remanded. But this

provision confirms that removals can only occur prior to judgment because the

statute presupposes that, for a case to be removable, judgment has not been

entered. See 28 U.S.C. § 1455(b)(3). And nothing in the removal statute

provides a federal court authority to invalidate or reopen a final state court

judgment.

Renteria argues capital criminal prosecutions are never final until the

sentence is actually carried out, Pet. Cert. 30, but such a suggestion is entirely

spurious. 8 See Staley v. State, 420 S.W.3d 785, 795 (Tex. Crim. App. 2013)

(general jurisdiction is not restored in the trial court when a conviction has

been affirmed and mandate has issued); Ex parte Johnson, 12 S.W.3d 472, 473

(Tex. Crim. App. 2000) (“A direct appeal is final when the mandate from the

court of appeals issues.”). Section 1455 does not differentiate between capital

and non-capital judgments. Renteria’s argument improperly conflates finality

of a capital judgment with the execution of it, and he provides no support for

the proposition that a capital conviction is not final until an execution is carried

out. See Renteria v. Lumpkin, No. 23-70007, slip op. at 7–8; In re State ex rel.

Hicks, 2023 WL 6074482, at *2. Indeed, the availability of postconviction

avenues to “frustrate” a state’s interest in finality does nothing to prove a

capital conviction does not become final until the inmate has been executed.

For instance, Renteria argued that legal proceedings—i.e., the setting of an

execution date—follow the affirmation of a capital conviction. Br. for Appellant 20–

21. This does nothing to show capital convictions are uniquely not final until the

defendant dies. For example, the duty of some individuals convicted of a reportable

sex offense to register “ends when the person dies.” Tex. Code Crim. Proc. art.

62.101(a). This does not mean convictions for those sex offenses are nonfinal until the

offender dies.

Relatedly, Renteria has not attempted to articulate what procedure he

envisions could occur in federal court pursuant to a removal of a ministerial

state court proceeding scheduling an execution. His inability to say what comes

after removal in his case disentitles him to a stay of execution, since he cannot

show he has any remedy to seek. Again, he has already been prosecuted—that

occurred more than twenty years ago. No criminal trial or proceeding remains

to be conducted. Also, a federal court in removal proceedings could not enjoin

the state from carrying out Renteria’s execution. 28 U.S.C. § 2283 (“A court of

the United States may not grant an injunction to stay proceedings in a State

court except as expressly authorized by Act of Congress, or where necessary in

aid of its jurisdiction, or to protect or effectuate its judgments.”); 28 U.S.C.

§ 1455(b)(3); see also Meadows, 2023 WL 5829131, at *2. The district court

could also not entertain a successive federal habeas petition. 28 U.S.C.

§ 2244(b)(3)(A); see Felker v. Turpin, 518 U.S. 651, 662 (1996) (a court’s

“authority to grant habeas relief to state prisoners is limited by § 2254, which

specifies the conditions under which such relief may be granted to ‘a person in

custody pursuant to the judgment of a state court’”) (internal citations

omitted).

To the extent Renteria envisions making a second attempt—after failing

in state court—to compel the District Attorney’s Office to provide him access

to its files, a federal court lacks jurisdiction to provide such a remedy because

it would be in the form of mandamus directed to a nonparty state court or a

state official. See Renteria v. Lumpkin, No. 23-70007, slip op. at 8; Corrigan,

2023 WL 3868657, at *2 (“[T]he district court lacked any authority to order the

[state] trial court to rule on Williams’s pending post-conviction motions.”

(citing Woods v. Weaver, 13 F. App’x 304, 306 (6th Cir. 2001)); Pruett v. Choate,

711 F. App’x 203, 206 n.10 (5th Cir. 2017); see also Twyford, 596 U.S. at 822–

24 (holding order that allows a prisoner to search for new evidence is not

necessary or appropriate in aid of a federal court’s jurisdiction when the

prisoner has not shown the desired evidence would be admissible in connection

with a particular claim for relief). Indeed, such a remedy would effectively

nullify the CCA’s mandamus judgment. 9 See Lance v. Dennis, 546 U.S. 459,

463 (2006) (an “aggrieved litigant cannot be permitted to do indirectly what he

no longer can do directly” (citation omitted)). Renteria provides no basis, or

For example, Renteria argued there are unresolved equal protection claims

that arise from the state court’s proceeding. ROA.19. But he has not even attempted

to explain how a federal court has jurisdiction to resolve any such claim. And if no

state court currently has jurisdiction to resolve such claims, it is because Renteria

failed to timely avail himself of the available processes to do so, e.g., Texas Code of

Criminal Procedure, article 11.071 § 5. Notably, after the district court rejected

Renteria’s removal request, he filed in state court a habeas application in which he

argued the state court’s proceedings scheduling his execution violated his rights to

due process and equal protection. Appl. for Writ of Habeas Corpus Under Art. I, § 12

of the Tex. Constitution & Tex. Code of Crim. Proc. Art. 11.05 at 93–107, Ex parte

Renteria, No. 20020D00230 (327th Dist. Ct., El Paso, Cty., Nov. 2, 2023). That filing

undercuts Renteria’s argument that he has no state court forum in which to seek to

vindicate his rights. See Johnson, 421 U.S. at 228 (rejecting removal because, inter

alia, the petitioners had other avenues to pursue to vindicate their federal rights).

even an explanation, for how a federal court could provide such a remedy. For

the same reason, Renteria’s effort to remove the state court proceeding is

contrary to the Rooker-Feldman doctrine. 10

Renteria’s complaint in state court was primarily that he was not

provided access to the prosecution’s file, which request was spurred by

disclosure by the prosecution to Renteria in 2018 of a witness statement. See

Renteria v. Davis, 814 F. App’x at 834–35. Even ignoring the excessive

untimeliness of, and the district court’s lack of jurisdiction to consider, his

request, Renteria failed to show good cause for his extraordinary and

unprecedented request to remove a ministerial, post-mandate proceeding from

state court to federal court where he did not seek a remedy in state court for

years after he was provided the witness statement. 11 Any holding to the

contrary would countenance obvious and unwarranted delay. See Shinn v.

Martinez Ramirez, 596 U.S. 366, 390 (2022) (explaining a federal court may

never “needlessly prolong” a state prisoner’s collateral attack on his conviction).

See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923) (holding that the

jurisdiction of the district court is strictly original); District of Columbia Court of

Appeals v. Feldman, 460 U.S. 476, 482 (1983) (holding a United States district court

has no authority to review final judgments of a state court in judicial proceedings).

Moreover, Renteria’s assertion that his notice of removal is timely because the

CCA’s opinion in the mandamus proceeding was “novel” is inaccurate. Pet. Cert. 27.

In holding the trial court lacked jurisdiction to withdraw its execution order and to

issue a discovery order, the CCA relied on its “well settled” precedent that trial courts

do not retain general jurisdiction after a conviction is affirmed and mandate is issued.

In re State ex rel. Hicks, 2023 WL 6074482, at *2 (citing Staley, 420 S.W.3d at 795).

The lower courts correctly held Renteria’s notice of removal was

untimely. ROA.273–74, 330–33; Renteria v. Lumpkin, 23-70007, slip op. at 5–

8. This Court should deny his petition for a writ of certiorari and his application

for a stay of execution.

Renteria identifies no valid basis for removal of the state

court’s proceeding.

Renteria’s notice of removal complained that the CCA held in the

mandamus proceeding that the state trial court had “no freewheeling

jurisdiction to seek to safeguard Renteria’s Fourteenth Amendment rights,”

and he asserted his Fourteenth Amendment right to equal protection as

grounds for removal of the state court proceedings. His request was frivolous

under binding precedent.

Renteria relied on 28 U.S.C. § 1443(1) as the basis for removal. ROA.4.

But to remove a case under that provision, the removing party must show both

that: (1) the right allegedly denied arises under a federal law providing for

specific rights stated in terms of racial equality; and (2) the removal petitioner

is denied or cannot enforce the specified federal rights in the state courts due

to some formal expression of state law. Johnson, 421 U.S. at 218–19. Under

the first requirement, the right asserted must “arise under laws phrased

specifically in terms of racial equality rather than in general terms of equality

for all citizens comprehensively,” so “broad [F]irst [A]mendment or

[F]ourteenth [A]mendment claims do not satisfy the test[.]” Smith v. Winter,

717 F.2d 191, 194 (5th Cir. 1983); see Johnson, 421 U.S. at 219; Rachel, 384

U.S. at 79–92; City of Greenwood v. Peacock, 384 U.S. 808, 828 (1966); United

States v. Belc, No. 22-12558, 2023 WL 6232474, at *2 (11th Cir. Sept. 26, 2023)

(neither the right to equal protection nor the federal civil rights statute, 42

U.S.C. § 1983, provide for specific rights in terms of racial equality); Delavigne

v. Delavigne, 530 F.2d 598, 600–01 (4th Cir. 1976) (holding that only racerelated discrimination claims are a basis for removal under § 1443(1)).

Consequently, Renteria’s broad assertions of the deprivation of the right

of equal protection were not adequate under § 1443(1) where he did not claim

racial discrimination. 12 Renteria v. Lumpkin, No. 23-70007, slip op. at 8–9.

See Peacock, 384 U.S. at 827–28 (“It is not enough to support removal under

[§] 1443(1) to allege or show that the defendant’s federal equal civil rights have been

illegally or corruptly denied by state administrative officials in advance of trial, that

the charges against the defendant are false, or that the defendant is unable to obtain

a fair trial in a particular state court.”); Winter, 717 F.2d at 194; Mackey v.

Massachusetts, 582 F. Supp. 3d 1, 4 (D. Mass. 2022); Thorp Finance Corp. v. Lehrer,

587 F. Supp. 533, 534 (E.D. Wis. 1984); Whitestone Sav. and Loan Ass’n v. Romano,

484 F. Supp. 1324, 1326 (E.D. N.Y. 1980); see also Johnson v. People of State of Cal.,

473 F.2d 1044, 1044–45 (9th Cir. 1973) (allegation that state law invested state courts

with discretion to impose different punishments for the same offense committed by

different persons in similar situations insufficient to justify removal); People of State

of N.Y. v. Hutchinson, 360 F.2d 759, 762 (2d Cir. 1966) (allegation that bail was set

extraordinarily high because of defendant’s involvement in civil rights

demonstrations did not justify removal); Oliver v. Lewis, 891 F. Supp. 2d 839, 845

(S.D. Tex. Aug. 31, 2012); People of State of N.Y. v. Baker, 354 F. Supp. 162, 168 (S.D.

N.Y. 1973) (claims of discriminatory prosecution provide no basis for removal unless

there is an allegation and proof that race was the reason for the discrimination);

Denson v. Williams, 341 F. Supp. 180, 182 (S.D. Tex. 1972) (holding that an equal

protection challenge to state laws restricting the rights of felons to vote and hold office

Indeed, his Fourteenth Amendment and equal protection arguments were

facially inadequate to justify removal. 13 “There is not the merest hint” from

Renteria’s allegations that any alleged deprivation of a right to due process or

equal protection was based on a violation of racial equality. State of Iowa v.

Johnson, 976 F. Supp. 812, 817 (N.D. Iowa 1997). Removal of the state court

proceeding was “not the proper vehicle to assert in federal court the civil rights

claims [Renteria] may believe” he has. Id.

Renteria argued the district court erroneously conflated “the need to

have ‘a right’ and the need for that right to arise ‘under any law providing for

the equal rights of citizens.’” Br. for Appellant at 25. The problem for Renteria,

however, is that this Court unambiguously requires a removal petitioner under

§ 1443(1) to demonstrate “that the right allegedly denied the removal

was not removable because the laws did “not operate as to deprive citizens of

constitutional rights because of their race”).

The state trial court did not base its order compelling the District Attorney’s

Office to provide Renteria access to its files on a finding of racially motivated

disparate treatment. ROA.31–33. Nor did the court identify any law that provides a

right to access a prosecuting office’s files much less a statutory right that is stated in

terms of racial equality. ROA.31–33; see 28 U.S.C. § 1443(1). Moreover, much of

Renteria’s notice of removal complained of what he perceives as a lack of process

during the state court’s proceeding. ROA.8–16. But what process is required under

the statutory provisions regarding the setting of an execution date is a purely statelaw matter, and a ministerial one at that. See Belyeu v. Johnson, 82 F.3d 613, 615

(5th Cir. 1996) (“The setting of the date for execution is not a critical part of the

sentencing proceedings, but is rather a ministerial act implementing the judgment

earlier entered.”). And, again, Renteria’s notice identified no relevant protected right

that is stated in terms of racial equality. See 28 U.S.C. § 1443(1).

petitioner arises under a federal law ‘providing for specific civil rights stated

in terms of racial equality.’” Johnson, 421 U.S. at 219 (quoting Rachel, 384 U.S.

at 792). And “[c]laims that prosecution and conviction will violate rights under

constitutional or statutory provisions of general applicability or under statutes

not protecting against racial discrimination, will not suffice.” Id. Moreover,

Renteria’s complaint is founded in the CCA’s jurisdictional holding, which

raises no federal constitutional issue at all. See Howlett By and Through

Howlett v. Rose, 496 U.S. 356, 372 (1990) (“When a state court refuses

jurisdiction because of a neutral state rule regarding the administration of the

courts, we must act with utmost caution before deciding that it is obligated to

entertain the claim.”); see also Medina v. California, 505 U.S. 437, 444 (1992)

(“[I]t has never been thought that [decisions under the Due Process Clause]

establish this Court as a rule-making organ for the promulgation of state rules

of criminal procedure.”) (alteration in original) (quoting Spencer v. Texas, 385

U.S. 554, 564 (1967)).

Renteria referenced the Civil Rights Act of 1964, 14 but he was not

prosecuted for protesting—he was prosecuted for murdering a young child. And

See Illinois v. Young, 2012 WL 2031129, at *2 (C.D. Ill. June 6, 2012) (“The

paradigmatic case is of civil rights demonstrators arrested and prosecuted for

trespass as a result of participating in a sit-in, which the Civil Rights Act of 1964

expressly authorizes and immunizes from state prosecution. Here, Defendant cannot

even begin to argue that he had a federal statutory right to possess a gun as a felon,

his removal petition did not allege his prosecution for capital murder violated

the Civil Rights Act of 1964—nor could it. See id. He provides no basis on which

to conclude he satisfied the first part of the § 1443(1) test where he relied solely

on a broad assertion of the right to equal protection. 15 See Johnson, 421 U.S.

at 219; see County of Yazoo, Miss. v. Prewitt, No. 23-60073, 2023 WL 7381440,

at *1 (5th Cir. Nov. 7, 2023); McMullen v. Cain, 726 F. App’x 257, 257–58 (5th

Cir. 2018) (“As McMullen concedes, his claims in this case do not arise under

a federal law pertaining specifically to racial equality, yet he asks that we

disregard the Supreme Court’s construction of § 1443(1) as error. This we

cannot do.”); Cabello v. Texas, 71 F. App’x 315, 316 (5th Cir. 2003) (“Cabello

argues that 28 U.S.C. § 1443 does not require allegations of racial

discrimination. Cabello’s argument is contrary to Johnson[.]”); Winter, 717

F.2d at 194; Robertson v. Ball, 534 F.2d 63, 66 n.5 (5th Cir. 1976) (suggesting

the court will “look with favor upon a summary motion to dismiss, as frivolous,

an appeal from a remand when the removal purportedly based on § 1443 does

since federal law also prohibits felons from possessing guns in most situations.”

(citation omitted)).

See also Miller v. Lambeth, 443 F.3d 757, 761–62 (10th Cir. 2006); St. James

Associates v. Larsen, 67 F. App’x 684, 686 (3d Cir. 2003); Alabama v. Conley, 245 F.3d

1292, 1295–96 (11th Cir. 2001); Chestnut v. People of State of N.Y., 370 F.2d 1, 3–4

(2d Cir. 1966).

not even colorably fall within the strict tests set out in Johnson, Georgia, and

Greenwood”).

At bottom, Renteria cannot show error in the lower courts’ judgments in

the face of Johnson. His petition calls on this Court to reverse its holding in

Johnson almost fifty years after it was issued, based on nothing than more

than his disagreement with the opinion. He points to no supportive precedent.

Nor does he show there is a lower court split as to whether broad equal

protection claims should be an adequate basis to remove any state court

criminal proceeding. And he provides no basis on which to create an end-run

around federal habeas jurisdiction. As with his timeliness argument,

Renteria’s argument regarding § 1443(1) asks this Court to simply ignore

decades of precedent. He provides no justification for this Court to depart from

its precedent. Renteria v. Lumpkin, No. 23-70007, slip op. at 8–9. This Court

should deny Renteria’s petition and his application for a stay of execution.

Renteria was not denied or unable to enforce any protected

right in state court.

Renteria also failed to show he was denied or unable to enforce any

protected right in state court. Again, as discussed above, Renteria fails to even

allege he was denied any right that arose under a law providing for specific

federal rights stated in terms of racial equality. 28 U.S.C. § 1443(1). The CCA

held the trial court lacked jurisdiction in the postconviction, ministerial

proceedings to safeguard Renteria’s right to equal protection—not any right to

racial equality. In re State ex rel. Hicks, 2023 WL 6074482, at *3. Necessarily

then, he cannot show he was improperly denied any such right in state court

or prevented from vindicating any such right in state court. The district court

correctly concluded Renteria failed the second part of the Johnson test because

he failed to identify any relevant right under § 1443(1) the state court

prevented him from vindicating.

Even if his broad complaints of denial of a right to equal protection and

due process could satisfy § 1443(1), he utterly fails to show the state court

processes precluded him from seeking to vindicate such rights. As the CCA

explained, the trial court lacked jurisdiction to issue a discovery order because

it had no relevant operative pleading before it that provided it jurisdiction. In

re State ex rel. Hicks, 2023 WL 6074482, at *2–3. Nothing precluded Renteria

from filing such a pleading, e.g., seeking authorization under article 11.071 § 5

to file a subsequent application for a writ of habeas corpus, as he has now done.

Renteria’s choice to withhold the filing of such a pleading—despite having been

provided more than five years ago the witness statement that formed the basis

of his request for access to the District Attorney’s Office’s file—does not mean

that the state court’s process denied him any right or precluded him from

enforcing any protected right. His dilatory tactics do not justify the novel and

extraordinary remedy of removal of a state court postconviction proceeding to

federal court.

***

“It is worth contemplating what the result would be if” Renteria’s

“strained interpretation of [§] 1443(1)” were to prevail. Peacock, 384 U.S. at

832. For one, unsuccessful habeas petitioners could require federal district

courts to sit in judgment of Texas trial courts and the CCA. As explained above,

federal courts cannot do so. And it is also worth remembering that this case

arises following a final state court judgment—not in an original criminal

prosecution, a direct appeal, or a habeas proceeding. Indeed, Renteria would

have this Court create a new and extraordinary remedy, based on a broad

allegation of the denial of due process or equal protection, which would

effectively create an avenue to directly appeal a state court’s resolution of a

purely state-law matter that arose in a mandamus proceeding long after a

conviction is final. Such efforts to turn federal district courts into “super state

supreme court[s]” would become commonplace. Porter v. Estelle, 709 F.2d 944,

957 (5th Cir. 1983). Renteria cites no precedent for such an expansion of

removal jurisdiction or for such an end-run around the limitations of federal

habeas jurisdiction. This Court should not countenance Renteria’s novel and

unjustified expansion of federal court supervisory authority.

IV.

The Removal Statute Does Not Provide Jurisdiction to Grant a

Stay of Execution, and Renteria Fails to Justify One.

Lastly, Renteria cannot obtain a stay of execution in this removal

proceeding because this Court lacks jurisdiction to grant a stay. 28 U.S.C.

§§ 1455(b)(3), 2283. Therefore, his motion for a stay of execution must be

denied. Even if this Court could grant a stay of execution, Renteria provides no

justification for it to do so. His motion for a stay does nothing but restate his

arguments on the merits of his removal appeal. As discussed thoroughly above,

his notice of removal was plainly contrary to longstanding precedent, and he

fails to justify a departure from it. Therefore, Renteria is not entitled to a stay

of execution because he necessarily cannot make a strong showing that he is

likely to succeed on the merits. See Hill, 547 U.S. at 583–84.

Moreover, Renteria’s removal request was plainly dilatory since it was

filed more than twenty years after it was required to be filed. 28 U.S.C.

§ 1455(b); see Hill, 547 U.S. at 584. Further, Renteria fails to show he would

be substantially harmed without a stay, that the public interest favors a stay,

or that the balance of equities favors a stay. As discussed above, Renteria’s

notice of removal was untimely and baseless. For the same reasons, he cannot

show he will be irreparably harmed if denied a stay of execution. See Walker v.

Epps, 287 F. App’x 371, 375 (5th Cir. 2008) (“[T]he merits of his case are

essential to our determination of whether [a prisoner] will suffer irreparable

harm if a stay does not issue.”). Further, the State and the public have a strong

interest in seeing the enforcement of Renteria’s decades-old judgment of

conviction—a conviction for a “quite disturbing” and “horrific” murder of a

young girl. Renteria v. Lumpkin, No. 23-70007, slip op. at 2; see Nelson, 541

U.S. at 649–50. Therefore, this Court should deny Renteria’s application for a

stay of execution.

CONCLUSION

Renteria fails to identify any error in the lower courts’ judgments, and

he fails to justify his request for a stay of execution. His petition for a writ of

certiorari and his application for a stay of execution 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

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 Respondents

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.