Respondents Brief — Chuong Duong Tong, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefJul 29, 2024

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No. 23-7577

IN THE

Supreme Court of the United States

CHUONG DUONG TONG,

Petitioner,

BOBBY LUMPKIN, Director, Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

KEN PAXTON

Attorney General

of Texas

ALI MUSTAPHA NASSER

Assistant Attorney General

Counsel of Record

BRENT WEBSTER

First Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 936-1400

ali.nasser@oag.texas.gov

JOSH RENO

Deputy Attorney General

For Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

Counsel for Respondent

CAPITAL CASE

QUESTIONS PRESENTED

The Fifth Circuit held that Tong’s Wiggins 1 claim would be procedurally

barred under Texas’s abuse-of-the-writ statute, and thus his request to

return to state court to exhaust his claim was plainly meritless under

Rhines v. Weber, 544 U.S. 269 (2005). Should this Court take up review

the Fifth Circuit’s interpretation of Texas’s abuse-of-the-writ bar?

In Martinez v. Ryan, 566 U.S. 1 (2012), this Court held that an

ineffective-assistance-of-habeas-counsel (IAHC) claim could establish

cause to overcome a procedural default in federal court. Should this

Court take up the issue of whether, considering Martinez, IAHC may

also establish good cause for a failure to exhaust under Rhines?

Should this Court consider whether a change in peremptory-strike

procedure amounts to a due process violation, where no harm has been

established, no biased or disqualified juror sat on the jury, and Tong was

given more peremptory strikes than permitted under state law?

Wiggins v. Smith, 539 U.S. 510 (2003).

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................................................................. i

TABLE OF CONTENTS ...................................................................................... ii

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

OPPOSITION TO PETITION FOR WRIT OF CERTIORARI .......................... 1

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

II.

Evidence Presented at Guilt and Punishment ......................................... 1

The murder of Officer Tony Trinh ...................................................1

The Punishment Evidence ...............................................................3

Appellate and Postconviction Proceedings ............................................... 4

REASONS FOR DENYING THE WRIT ............................................................ 8

The District Court’s Denial of Tong’s Request for a Stay Is Not

Worthy of Certiorari Review. .................................................................... 8

II.

Tong’s plainly-meritless argument fails to state a compelling

reason for certiorari review. .............................................................9

Background on the Fifth Circuit’s application of the

plainly-meritless prong to Texas’s abuse-of-the-writ

bar. ..................................................................................... 10

Tong’s request amounts to error correction........................ 12

The Fifth Circuit’s interpretation was correct. .................. 14

This case is a poor vehicle for resolving the question of

whether IAHC can serve as good cause under Rhines. ................18

Good cause in the context of Martinez and the

emergence of a circuit split .................................................. 18

This case is a poor vehicle to decide this question. ............ 20

Good cause under Rhines is not the same as good cause

under Martinez..................................................................... 21

Tong’s Voir Dire Claim Does Not Merit Certiorari Review. .................. 22

Procedural history of the claim ......................................................23

Tong seeks error correction of an already-correct decision. .........25

This case is a poor vehicle to address Tong’s question

presented. ........................................................................................29

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

iii

TABLE OF CITED AUTHORITIES

Cases

Ayestas v. Davis,

584 U.S. 28 (2018) ...................................................................................... 6

Balentine v. Thlaer,

626 F.3d 842 (5th Cir. 2010).............................................................. 16, 17

Blake v. Baker,

745 F.3d 977 (9th Cir. 2014).............................................................. 19, 20

BMW of North America, Inc. v. Gore,

517 U.S. 559 (1996) .................................................................................. 28

Citibank, N.A. v. Wells Fargo Asia Ltd.,

495 U.S. 660 (1990) .................................................................................. 28

Coleman v. Thompson,

501 U.S. 722 (1991) ............................................................................ 14, 18

Davila v. Davis,

582 U.S. 521 (2017) .................................................................................. 16

Davis v. Sellers,

940 F.3d 1175 (11th Cir. 2019)................................................................ 13

De Buono v. NYSA-ILA Medical & Clinical Servs. Fund,

520 U.S. 806 (1997) .................................................................................. 14

Edwards v. Vannoy,

593 U.S. 255 (2021) .................................................................................. 31

Ex parte Blue,

230 S.W.3d 151 (Tex. Crim. App. 2007) .................................................... 9

Ex parte Graves,

70 S.W.3d 103 (Tex. Crim. App. 2002) .............................................. 11, 14

Ex parte Preyor,

537 S.W.3d 1 (Tex. Crim. App. 2017) ...................................................... 16

Ex parte Reed,

271 S.W.3d 698 (Tex. Crim. App. 2008) .................................................... 9

Ex parte Ruiz,

543 S.W.3d 805 (Tex. Crim. App. 2016) .................................................. 15

Ex parte Tong,

No. WR-71-377-01, 2009 WL 1900372 (Tex. Crim. App. Jul. 1,

2009) ........................................................................................................... 5

Ex parte Tong,

No. WR-71-377-01, 2013 WL 2285455 (Tex. Crim. App. May 22,

2013) ........................................................................................................... 5

Expressions Hair Design v. Schneiderman,

581 U.S. 37 (2017) .................................................................................... 14

Frazier v. United States,

335 U.S. 497 (1948) .................................................................................. 26

Gray v. Mississippi,

481 U.S. 648 (1987) .................................................................................. 26

Green v. Johnson,

116 F.3d 1115 (5th Cir. 1997).................................................................. 30

Johnson v. Raemisch,

779 F. App’x 507 (10th Cir. 2019) ........................................................... 13

Johnson v. U.S. R.R. Retirement Bd.,

969 F.2d 1082 (D.C. Cir. 1992) ................................................................ 20

Leal Garcia v. Texas,

564 U.S. 940 (2011) ............................................................................ 15, 18

Neville v. Dretke,

423 F.3d 474 (5th Cir. 2005).............................................................. 10, 13

Rhines v. Weber,

544 U.S. 269 (2005) .................................................................... 7, 8, 17, 18

Rivera v. Illinois,

556 U.S. 148 (2009) ................................................................ 26, 27, 28, 30

Ross v. Oklahoma,

487 U.S. 81 (1988) .............................................................................. 26, 27

Sandoval Mendoza v. Lumpkin,

81 F.4th 461 (5th Cir. 2023) .................................................. 10, 11, 13, 17

Sawyer v. Whitley,

505 U.S. 333 (1992) .............................................................................. 9, 12

Schall v. Martin,

467 U.S. 253 (1984) .................................................................................. 13

Schriro v. Summerlin,

542 U.S. 348 (2004) .................................................................................. 31

Shinn v. Martinez Ramirez,

596 U.S. 366 (2022) .................................................................................... 7

Shoop v. Twyford,

596 U.S. 811 (2022) .................................................................................. 22

Skilling v. United States,

561 U.S. 358 (2010) .................................................................................. 25

Smith v. Robbins,

528 U.S. 259 (2000) .................................................................................. 30

Spencer v. Texas,

385 U.S. 554 (1967) .................................................................................. 26

Stilson v. United States,

250 U.S. 583 (1919) .................................................................................. 26

Strickland v. Washington,

466 U.S. 668 (1984) .................................................................................. 30

Swain v. Alabama,

380 U.S. 202 (1965) .................................................................................. 26

Thomas v. Lumpkin,

995 F.3d 432 (5th Cir. 2021).................................................................... 19

Tong v. Davis,

Civ. No. 4:10-2355, 2016 WL 5661698 (S.D. Tex. Sep. 30, 2016) ... 3, 4, 6,

Tong v. Lumpkin,

825 F. App’x 181 (5th Cir. 2020) ............................................................... 6

Tong v. Lumpkin,

90 F.4th 857 (5th Cir. 2024) ...................................................................... 7

Tong v. State,

25 S.W.3d 707 (Tex. Crim. App. 2000) ...................................................... 5

Trevino v. Davis,

138 S. Ct. 1793 (2018) .............................................................................. 28

United States v. Fields,

565 F.3d 290 (5th Cir. 2009).................................................................... 30

United States v. Martinez-Salazar,

528 U.S. 304 (2000) ............................................................................ 26, 27

United States v. Traxler,

764 F.3d 486 (5th Cir. 2014).................................................................... 20

Wiggins v. Smith,

539 U.S. 510 (2003) .................................................................................... 1

Williams v. Thaler,

602 F.3d 291 (5th Cir. 2010).................................................................... 19

Statutes

Tex. Code Crim. Proc. art. 11.071 § 5(a)(1) ........................................................ 9

Tex. Code Crim. Proc. art. 11.071 § 5(a)(2) ........................................................ 9

Tex. Code Crim. Proc. art. 11.071 § 5(a)(3) ........................................................ 9

Tex. Code Crim. Proc. art. 11.071 § 5(d) ............................................................. 9

Tex. Code Crim. Proc. art. 11.071 § 5(e) ............................................................. 9

Tex. Code Crim. Proc. art. 35.15(a) ................................................................... 23

Tex. Code Crim. Proc. art. 37.071 ..................................................................... 12

Rules

See Sup. Ct. R. 10 ................................................................................... 13, 27, 28

vii

OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

In 1998, Petitioner Chuong Tong was convicted for the 1997 capital

murder of Officer Tony Trinh and sentenced to death by a Texas court. After

his direct appeal and initial state-habeas application were both rejected, Tong

filed for federal habeas relief in district court. Over the course of more than a

decade, the district court denied relief on Tong’s claims and denied Tong a stay

of proceedings to exhaust his Wiggins claim. 2 Tong appealed on the grounds

that (1) the district court erred in denying his voir-dire claim and (2) the

district court erred in denying his request for a stay of proceedings. In January

2024, the Fifth Circuit rejected both arguments. Tong now seeks certiorari

review of the Fifth Circuit’s decision.

STATEMENT OF THE CASE

Evidence Presented at Guilt and Punishment

The murder of Officer Tony Trinh

The district court below summarized the facts of the capital offense:

On April 6, 1997, Houston police officer Tony Trinh was

working at Sunny’s, a Houston convenience store owned by Trinh’s

parents . . . Tong entered Sunny’s, and approached Trinh, who was

working behind the counter. Tong held a Glock 17 semi-automatic

handgun . . . Tong demanded Trinh’s wallet and jewelry. While

Trinh was handing over his jewelry, Tong attempted to open the

cash register. Trinh then identified himself as a police officer,

showed Tong his badge, and told Tong that he “was not going to

Wiggins v. Smith, 539 U.S. 510 (2003).

get away with this.” Tong shot Trinh once in the head at close

range, took Trinh’s jewelry, and fled to a waiting car. Tong took

the gun apart and disposed of the components in several storm

drains.

Several days later, Tong asked his roommate, Hoa Huu

Than, a/k/a “Too Short,” to sell some of Trinh’s jewelry. After doing

so, Than became suspicious that the jewelry might be Trinh’s.

When he asked Tong, Tong threatened him if he said anything

about the jewelry.

Several months later, Tong was arrested for capital

murder. He gave police a statement detailing the robbery and

shooting. In the statement, Tong claimed that he accidentally shot

Trinh while jumping over the counter. He later showed police

where he disposed of the handgun components.

While in a jail holding tank, Tong told a fellow inmate,

Stephen Mayeros, why he was in jail. Mayeros asked Tong how

close he was when he shot Trinh, and Tong responded by touching

his finger to Mayeros’s forehead and saying “bang.” When Mayeros

asked Tong if he felt bad about killing Trinh, Tong replied that he

felt terrible and cried himself to sleep, and then laughed. Later,

when a police officer was kneeling in front of Tong preparing

Tong’s restraints for transport, Tong placed his fingers in the

shape of a pistol, pointed them at the officer’s head, and mouthed

the word “bang.”

At trial in 1998, Tong gave an alibi defense, testifying that

he was asleep with his girlfriend at the time of the murder, and

that he had never been to Sunny’s. He claimed that he was induced

and coerced to confess by promises of lesser charges and threats by

police officers. The jury found Tong guilty of capital murder on the

alternative theories that he intentionally killed Trinh, a police

officer performing his official duties, and/or that he intentionally

killed Trinh during the course of robbing or attempting to rob

Sunny’s.

Tong v. Davis, Civ. No. 4:10-2355, 2016 WL 5661698, at *1 (S.D. Tex. Sep. 30,

2016) (internal footnotes and record citations omitted).

The Punishment Evidence

The district court also summarized the evidence presented at the

punishment phase of Tong’s trial:

During the penalty phase, the State presented evidence that

Tong was arrested for stealing, and had numerous disciplinary

problems, during high school. Efforts to counsel Tong were

unsuccessful due to Tong’s lack of remorse. He got in trouble for

theft, destruction of property, sexual harassment, and assault. He

was eventually expelled from school due to concerns that he posed

a threat to the safety of other students.

During the penalty phase, the State also presented evidence

of other incidents. The first was that, about a month after the

murder, Tong took part in a bank larceny involving $400,000. Also,

two days before the Trinh incident, Tong and an accomplice broke

into the home of Vincent and Hannah Lee. Mrs. Lee was at home

with her sick toddler, Christina. Tong tied Mrs. Lee up, put a gun

to her head, and told her he was going to take all of her money and

then kill her. Mr. Lee came home during the robbery. Tong and his

accomplice heard Mr. Lee enter and told Mrs. Lee that they would

kill her if she made any noise. Tong approached Mr. Lee with a

gun. When Mr. Lee reached for the gun, Tong shot him. Tong

dragged Mr. Lee into the living room, where Mrs. Lee and

Christina were held, threw him to the floor, and threatened to kill

him. As he was leaving, Tong stated that he was “going to kill all

of you” and began firing toward the family. He shot Christina in

the leg, and hit Mr. Lee with two more shots. Tong laughed after

shooting the Lees and left.

Tong’s father, Hoang Tong, testified that he had marital

problems. Because of this, he left Vietnam with Tong when Tong

was three years old. They moved to the Philippines for

approximately nine months. One day, Hoang found Tong standing

in the water near the beach because he missed his mother and

wanted to swim back to Vietnam to see her.

The trial record revealed that Tong had a difficult childhood.

Tong and his father moved to Germany. Tong lived briefly in one

foster home, then in an orphanage, and eventually moved into

another foster home, where he lived with Jim and Gabby Wyatt for

three years. During that period, Hoang said he was going on a

vacation to the United States, but never returned to Germany,

apparently abandoning Tong. Eventually, after Tong became a

serious discipline problem, the Wyatts determined that they could

no longer handle him. The Wyatts were able to get in touch with

Hoang, and Jim Wyatt brought Tong to Houston. Hoang took

informal custody of Tong and they lived together with other family

until Hoang left Tong again. Tong lived with extended family until

he was 21 years old. His relationship with his father was very

strained.

Tong’s uncle testified that Tong had trouble communicating

when he first arrived because he spoke only German. Tong was

unhappy because he missed the Wyatts and his own mother.

Jim Wyatt testified that he met Tong when Tong and his

father lived in a Red Cross refugee home in Germany. He testified

that Hoang was not an attentive father and was a very severe

disciplinarian. The Wyatts took Tong in. For some time, he did

well living as part of their family. However, when Tong returned

from weekend visits with his father, he was subdued. After his

father went to the United States, Tong began having difficulties in

the Wyatt home. Eventually, the Wyatts decided to send Tong to

live with his family in the United States.

Tong, 2016 WL 5661698, at *2–3 (internal record citations omitted).

II.

Appellate and Postconviction Proceedings

Tong appealed his conviction, and the Texas Court of Criminal Appeals

(CCA) affirmed the trial court’s judgment. Tong v. State, 25 S.W.3d 707, 715

(Tex. Crim. App. 2000); App 34–42.3 He also filed a state-habeas application,

which the CCA denied. Ex parte Tong, No. WR-71,377-01, 2009 WL 1900372

(Tex. Crim. App. Jul. 1, 2009). His case then moved to federal court, where he

filed a federal habeas petition under 28 U.S.C. § 2254. ECF No. 1, Tong v.

Lumpkin, 4:10-cv-02355 (S.D. Tex. Jul. 1, 2010).4 In September 2012, the

federal district court stayed federal proceedings so that Tong could exhaust his

unexhausted claims in state court. ECF No. 31. Back in state court, Tong filed

a subsequent state-habeas application. Ex parte Tong, No. WR-71,377-02, 2013

WL 2285455, at *1 (Tex. Crim. App. May 22, 2013). The CCA dismissed the

application as an abuse of the writ without considering the merits of the claims.

Id.

Back in federal court, Tong filed an amended habeas application. ECF

No. 57. He also moved for funding to hire a mitigation expert and qualified

Vietnamese interpreter, which the district court denied. ECF Nos. 49, 56. In

2016, the district court denied most of Tong’s claims but held that it would

conduct an evidentiary hearing on Tong’s Brady 5 claims. Tong, 2016 WL

Respondent cites to Tong’s appendix as “App.” followed by page number. Where

Tong includes an opinion in his appendix, Respondent initially cites to both the

Westlaw citation and the appendix citation but refers to only the appendix for all

subsequent citations.

All ECF cites are to this docket number unless indicated otherwise.

Brady v. Maryland, 363 U.S. 83 (1963).

5661698, at *37. The district court held an evidentiary hearing and, on March

22, 2019, it denied relief on the remaining claims and entered final judgment.

ECF Nos. 159, 160 (under seal). The district court granted Tong a certificate of

appealability (COA) on his voir-dire claim. Tong v. Lumpkin, 825 F. App’x 181,

182 (5th Cir. 2020).

Tong’s case then moved to the Fifth Circuit, where he sought further

COAs on his Wiggins claim (that trial counsel failed to present mitigating

evidence) and on his Brady claims. Id. at 182–83. Tong also challenged the

district court’s 2014 denial of funding for a mitigation expert and Vietnamese

interpreter. Id. at 185–86. The Fifth Circuit found that the district court’s

denial of funding rested on the “substantial need” test that this Court struck

down in Ayestas v. Davis, 584 U.S. 28 (2018). Tong, 825 F. App’x at 186. Thus,

the court of appeals vacated the denial of funding and remanded the case for

reconsideration of Tong’s funding request in light of Ayestas. Id. The Court

stayed Tong’s request for a COA on his Wiggins claim “pending the district

court’s resolution of his funding request.” Id.

On remand, the district court granted Tong investigative funding. ECF

No. 182. The district court, however, noted that the Fifth Circuit remanded

only with instructions to reconsider the funding issue but did not instruct the

district court to order additional briefing on the Wiggins claim. ECF No. 185.

The district court accordingly ordered Tong to move in the Fifth Circuit for a

full remand of his Wiggins claim. Id. Tong did so, and the Fifth Circuit granted

his motion, remanding for development of Tong’s Wiggins claim. ECF No. 187.

Midstream of the second remand proceedings, this Court announced its

decision in Shinn v. Martinez Ramirez, 596 U.S. 366 (2022). As the decision

effectively barred the evidence underlying Tong’s Wiggins claim, Respondent

moved to enter judgment and terminate remand proceedings. ECF No. 206.

Tong responded by seeking another stay under Rhines v. Weber, 544 U.S. 269

(2005). ECF No. 210. In March 2023, the district court denied the request for

a stay, entered judgment denying relief on the Wiggins claim, but granted Tong

a COA on his stay request. App. 16–22.

After a round of briefing and oral argument on the stay issue, the Fifth

Circuit issued its opinion. It affirmed the district court’s denial of the stay and

denied Tong a COA on his Wiggins claim. Tong v. Lumpkin, 90 F.4th 857, 869–

70 (5th Cir. 2024); App. 12. The court of appeals also denied Tong’s voir-dire

claim as procedurally barred. App. 12. Tong filed a motion for rehearing en

banc, which the court of appeals denied. App. 14. On May 23, 2024, Tong filed

his petition for a writ of certiorari. See generally Pet.

REASONS FOR DENYING THE WRIT

The District Court’s Denial of Tong’s Request for a Stay Is Not

Worthy of Certiorari Review.

In his first argument, Tong seeks certiorari review of the Fifth Circuit’s

opinion affirming the district court’s denial of his stay request pursuant to

Rhines. Pet. at 23. Under Rhines, a federal-habeas petitioner may obtain a stay

of federal proceedings to exhaust any unexhausted federal claims so long as

(1) the petitioner shows good cause for the failure to exhaust, (2) the

unexhausted claim is not plainly meritless, and (3) the petitioner has not

intentionally engaged in dilatory tactics. 544 U.S. at 277–79.

Tong sought a Rhines stay to exhaust his Wiggins claim, in which he

alleges that his trial counsel failed to present mitigating evidence at the

punishment phase of trial. App. 7. The district court denied the request. Id. at

16–23. The Fifth Circuit affirmed, finding that Tong failed to show good cause

for his failure to exhaust and that Tong failed to show his request was not

plainly meritless. Id. at 7–8. It reasoned first that, under circuit precedent, an

IAHC claim could not be used to establish good cause under Rhines. Id. at 7. It

reasoned second that the claim was plainly meritless because no CCA

precedent existed that would permit Tong to obtain state-court review of his

Wiggins claim in a subsequent application. Id. at 7–8. Tong now seeks review

of these determinations.

Tong’s plainly-meritless argument fails

compelling reason for certiorari review.

state

Tong contends that the Fifth Circuit erred when it found his stay request

plainly meritless on the rationale that it would be procedurally defaulted if

presented in state court. Pet. at 27–29. Under Texas law, a subsequent

application filed by a capital applicant may only be considered if it meets one

of the three exceptions to the abuse-of-the-writ bar:

•

First, an applicant can prove either factual or legal unavailability of a

claim. Tex. Code Crim. Proc. art. 11.071 § 5(a)(1). A claim is legally

unavailable when its legal basis “was not recognized by or could not have

been reasonably formulated from a final decision of the [this Court], a

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

of this state[,]” id. § 5(d), and factually unavailable when its factual basis

“was not ascertainable through the exercise of reasonable diligence[.]”

Id. § 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.” Id. § 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);

•

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). This subsection

“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 (Tex. Crim. App. 2007).

Tong argues he made a plausible showing that his Wiggins claim might

pass through the first and third of these exceptions (respectively, the previousunavailability exception under § 5(a)(1) and the innocence-of-the-death9

penalty exception under § 5(a)(3)). He claims that the former exception applies

through a theory that state-habeas counsel was ineffective and the latter

exception applies through a theory that further mitigation evidence would

render him innocent of the death penalty under § 5(a)(3). Pet. at 27–29.

Background on the Fifth Circuit’s application of the

plainly-meritless prong to Texas’s abuse-of-the-writ

bar.

Shortly after Rhines, the Fifth Circuit held that an unexhausted claim is

“plainly meritless” if the petitioner is “procedurally barred from raising those

claims in state court.” Neville v. Dretke, 423 F.3d 474, 480 (5th Cir. 2005). This,

of course, raised the question of how to make the procedural default

determination prospectively.

After nearly two decades, the Fifth Circuit gave some guidance on how

to apply this general rule to Texas’s abuse-of-the-writ statute. In Sandoval

Mendoza, the court of appeals considered an argument that an IAHC claim—

like the one established in Martinez—might be used to overcome the previousunavailability bar of § 5(a)(1).6 Sandoval Mendoza v. Lumpkin, 81 F.4th 461,

482 (5th Cir. 2023). The court found that “Texas law forecloses the argument

that state habeas counsel’s ineffectiveness renders the factual basis

Martinez held that a federal petitioner could overcome the procedural default

of a substantial ineffective-assistance-of-trial-counsel (IATC) claim through an IAHC

claim establishing that habeas counsel ineffectively failed to raise the claim in state

court. 566 U.S. at 9.

unavailable at the time of the initial writ.” Id. (citing Ex parte Graves, 70

S.W.3d 103, 117 (Tex. Crim. App. 2002)). Mendoza urged that the CCA should

have the opportunity to revisit Graves in light of this Court’s decision in

Martinez Ramirez. Id. The Fifth Circuit rejected that argument, holding that

“[t]he opportunity to reconsider state court precedent . . . is not in itself enough

to grant a Rhines stay.” Id. Thus, Sandoval Mendoza finally held what should

have been obvious to everyone—that the mere possibility of a change in state

law does not salvage a Rhines motion under the plainly-meritless prong.

In light of Sandoval Mendoza, Tong abandoned his argument under

§ 5(a)(1) but maintained his argument under § 5(a)(3)—that his Wiggins claim

might show his innocence of the death penalty under Texas statute. App. 8.

The Fifth Circuit rejected that argument, finding that the CCA has never found

that a Wiggins claim meets the innocence-of-the-death-penalty exception of

§ 5(a)(3). Id. The court conducted a detailed review of the CCA’s interpretation

of § 5(a)(3), specifically looking to the CCA’s opinion in Blue, 230 S.W.3d at

151. According to Blue, “§ 5(a)(3) ‘more or less’ adopted the Supreme Court’s

actual innocence of the death penalty rule in Sawyer[.]” App. 8 (citing Blue,

230 S.W.3d at 159–60). But, as the Fifth Circuit noted, “Sawyer limited this

exception where alleged constitutional errors only ‘affect[ed] the applicant’s

eligibility for the death penalty under state statutory law.’” Id. (quoting Blue

230 S.W.3d at 161). Indeed, Sawyer explicitly rejected the argument that the

innocence-of-the-death-penalty exception could ever hinge on “the existence of

additional mitigating evidence.” 505 U.S. at 345.

So, the question then is to what extent § 5(a)(3)—which “more or less”

adopts Sawyer’s definition of innocence of the death penalty—leaves more

wiggle room for arguments predicated, not on categorical ineligibility for the

death penalty, but rather on evidence that might have influenced the jury’s

determination of the Texas special issues. See generally Tex. Code Crim. Proc.

art. 37.071 (listing special issues that must be answered by jury before

imposition of a death sentence). As the Fifth Circuit noted, the CCA considered

the theoretical possibility of such an argument in a footnote. Blue, 230 S.W.3d

at 160 n.42. But the CCA’s language was expressly dicta. Id. (“We need express

no ultimate opinion on this question here.”). And the Fifth Circuit held, “we

cannot approve a Rhines stay based solely on dicta that ‘left open the

possibility that a Wiggins claim might also be cognizable under Section

5(a)(3).’” App. 8. Tong seeks reversal of this interpretation of the plainlymeritless prong.

Tong’s request amounts to error correction.

Tong seeks certiorari review of the Fifth Circuit’s determination that his

request was plainly meritless under Texas’s abuse-of-the-writ bar. At the

outset, Tong’s argument that an IAHC claim might render his Wiggins claim

previously unavailable under § 5(a)(1) should not be considered because it was

abandoned below. After merits briefing had concluded, but before oral

argument, the Fifth Circuit rejected Tong’s § 5(a)(1) argument in another case.

See Sandoval Mendoza, 81 F.4th at 482. When asked about Sandoval Mendoza

at oral argument, Tong explicitly abandoned his § 5(a)(1) argument, causing

the Fifth Circuit to abdicate review of the argument altogether. App. 8. Thus,

this Court should decline review of whether the Fifth Circuit’s interpretation

of § 5(a)(1) was error. See Schall v. Martin, 467 U.S. 253, 293 n.18 (1984)

(Marshall, J., dissenting) (“We are generally chary of deciding important

constitutional questions not reached by a lower court.”).

But even setting aside this prudential concern, Tong’s request smacks of

error correction. He doesn’t take issue with the rule that a claim that would be

defaulted in state court is plainly meritless under Rhines.7 Rather, Tong’s

argument is simply a direct attack on the Fifth Circuit’s application of the

plainly meritless rule to Texas’s abuse-of-the-writ bar. Such an attack on the

how the Fifth Circuit interprets Texas law, by definition, involves no circuit

split nor implicates any federal question for this Court to answer. See Sup. Ct.

Multiple circuit courts agree that a Rhines request to exhaust a claim that

would be procedurally barred in state court is plainly meritless. See Neville, 423 F.3d

at 480; Davis v. Sellers, 940 F.3d 1175, 1191 (11th Cir. 2019) (holding that granting

a Rhines stay would be an abuse of discretion where “a successive petition would be

procedurally barred under [state] law”); Johnson v. Raemisch, 779 F. App’x 507, 514

n.6 (10th Cir. 2019) (explaining that petitioner was not entitled to a Rhines stay when

the claim would be barred under state law).

R. 10. Moreover, it would be peculiar for this Court to grant review simply to

correct the Fifth Circuit’s interpretation of Texas law given that this Court

expressly relies on the Fifth Circuit’s interpretation of Texas law. Cf.

Expressions Hair Design v. 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”).

Interpreting Texas law to appraise whether a Texas petitioner may

obtain a Rhines stay is precisely the type of question that the Fifth Circuit is

best equipped to answer. Indeed, this Court entrusts district and circuit courts

to routinely make this very analysis in the context of procedural defaults. See

Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). It should be no different

in the Rhines context.

The Fifth Circuit’s interpretation was correct.

In any event, Tong seeks a rule that is unworkable and nonsensical.

First, he appears to take issue with the Fifth Circuit’s interpretation that

IAHC could not establish previous unavailability under § 5(a)(1) of Texas’s

abuse-of-the-writ statute. Pet. at 28. Despite abandoning this argument in the

court of appeals, App. 8, Tong now urges that the Fifth Circuit incorrectly

interpreted Graves, 70 S.W.3d at 117, and points to CCA judges that have

suggested overturning Graves after this Court’s opinion in Martinez. Pet. at

27–28.

First, Tong feebly argues that Graves does not hold that IAHC cannot be

used to show an underlying constitutional claim was unavailable under

§ 5(a)(1). Pet. at 28. He contends that is so because, in Graves, the applicant

did not tie his IAHC claim to any underlying constitutional claim. Id. That’s a

distinction without a difference. The upshot of Graves is that IAHC can never

show previous unavailability under § 5(a)(1), even when used as a procedural

vehicle to support an underlying constitutional claim. The CCA itself cites to

Graves for that very proposition: “If an applicant’s habeas counsel fails to raise

a potentially meritorious IA[T]C claim in an initial writ application, under our

holding in Graves, that claim cannot be revived in a subsequent writ

application by asserting ineffective assistance of habeas counsel.” Ex parte

Ruiz, 543 S.W.3d 805, 825 (Tex. Crim. App. 2016). Moreover, Tong’s suggestion

that the CCA might overrule Graves is unavailing. Tong’s hope that the law

might change to his benefit is, by definition, not the law. See Leal Garcia v.

Texas, 564 U.S. 940, 941 (2011) (“Our task is to rule on what the law is, not

what it might eventually be.”). 8

Tong’s argument—a hodgepodge of various CCA concurrences and dissents—

is that “at least six [judges] have . . . suggested that the [CCA] should revisit its

subsequent application jurisprudence in light of Trevino.” Pet. at 27–28 (emphasis

Tong makes a similar argument that his Wiggins claim is not plainly

meritless because it may show innocence of the death penalty under § 5(a)(3)

of Texas’s abuse-of-the-writ statute. Pet. at 28–29. The Fifth Circuit noted that

§ 5(a)(3) was meant to codify the categorical ineligibility of the death penalty

as promulgated by this Court in Sawyer. App. 8 (citing Blue, 230 S.W.3d at

159–60). The court also noted, however, that the opinion in Blue “left open the

possibility that a Wiggins claim might also be cognizable under Section

5(a)(3).” Id. (quoting Balentine v. Thaler, 626 F.3d 842, 856 (5th Cir. 2010)).

Indeed, in a footnote that was expressly dicta, the CCA in Blue stated,

. . . it is arguable that, in theory at least, a subsequent habeas

applicant could demonstrate by clear and convincing evidence

that, but for some constitutional error, no rational juror would

have answered the mitigation special issue in the State’s favor. On

its face this would seem to meet the criteria of Article 11.071,

Section 5(a)(3). But it would also permit a subsequent state habeas

applicant to proceed under circumstances that would not excuse a

added). Even indulging in this specious judge-counting exercise, only two of the six

judges he references are still on the court. Compare Pet. at 28 n.21, with About the

Court:

Judges,

Court

Criminal

Appeals

Texas,

https://www.txcourts.gov/cca/about-the-court/judges/ (last visited July 29, 2024). And

one of the two remaining judges in that list showed skepticism of Tong’s argument in

light of the Supreme Court’s reaffirmance in Davila v. Davis, 582 U.S. 521 (2017),

that there is no constitutional right to state-postconviction counsel. Compare

Appellant’s Br. at 28 n.21, with Ex parte Preyor, 537 S.W.3d 1, 2 (Tex. Crim. App.

2017) (Newell, J., concurring) (“The [Supreme] Court may, at some future date,

constitutionalize the holdings of Martinez and Trevino and proclaim that the Sixth

Amendment requires the appointment of counsel in a post-conviction habeas

proceeding . . . But it is up to the United States Supreme Court to overrule its

precedent, not this Court.”). Two other judges joined that concurring opinion.

Moreover, there has been no renewed push to overturn Graves post-Davila. Thus,

Tong’s argument is stale.

federal petitioner under Sawyer v. Whitley. We need express no

ultimate opinion on this question here.

Blue, 230 S.W.3d at 160 n.42 (emphasis added).

The Fifth Circuit held that the CCA’s “hesitance on this point, as

expressed in the Blue footnote, does not make Tong’s Wiggins claim potentially

meritorious under Rhines.” App. 8. The court determined that, because the

Blue footnote was dicta, any recognition that Wiggins could be applied to

§ 5(a)(3) would require the CCA “to revisit its procedural default precedent.”

Id. Looking to Sandoval Mendoza, the Fifth Circuit “noted that ‘[t]he

opportunity to reconsider state court precedent . . . is not in itself enough to

grant a Rhines stay.’” Id. (quoting Sandoval Mendoza, 81 F.4th at 865). It

therefore held, “we cannot approve a Rhines stay based solely on dicta that ‘left

open the possibility that a Wiggins claim might also be cognizable under

Section 5(a)(3).’” Id. (quoting Balentine, 626 F.3d at 856).

The Fifth Circuit’s reasoning was consistent with the principles espoused

in Rhines. The fact that the CCA, in nearly thirty years since the enactment of

§ 5(a)(3),9 has never held Tong’s argument to be a viable one under § 5(a)(3)

seems to fit the definition of “plainly meritless.” Rhines, 544 U.S. at 277.

Moreover, the Fifth Circuit’s rationale finds support from this Court’s prior

ruling in Leal Garcia, in which this Court declined a stay of execution upon

Article 11.071 was enacted in 1995. See Blue, 230 S.W.3d at 155.

unenacted legislation that might be forthcoming. Leal Garcia, 564 U.S. at 941

(“Our task is to rule on what the law is, not what it might eventually be.”). And

finally, the Fifth Circuit’s reasoning finds support in Rhines’s caution that a

“stay and abeyance should be available only in limited circumstances.” 544

U.S. at 277. Permitting stays upon yet-to-be-recognized legal theories has no

limiting principle, and would permit the grant of a Rhines stay, not upon

potential merit, but rather upon the self-serving and fanciful hopes of federal

petitioners. The Fifth Circuit’s thorough, detailed, and sensical analysis

appropriately balances the interests of petitioners with the desirability of

staying habeas proceedings sparingly. Thus, it requires no revisitation here.

This case is a poor vehicle for resolving the question of

whether IAHC can serve as good cause under Rhines.

Good cause in the context of Martinez and the

emergence of a circuit split

In Rhines, this Court held that a petitioner proceeding under § 2254

could obtain a stay of federal proceedings to exhaust his unexhausted claims

only if he could show good cause for failing to exhaust the claim in state court.

544 U.S. at 277. But this Court had already held in Coleman that, under

agency principles, a state prisoner bears the cost of his state-postconviction

counsel’s “ignorance or inadvertence.” 501 U.S. at 753. The Fifth Circuit

applied the same logic in Williams v. Thaler, holding that, because an IAHC

claim could not show cause to overcome a procedural default, it also could not

serve as “good cause for [Williams’s] failure to exhaust his IAC claim in state

court[.]” Williams v. Thaler, 602 F.3d 291, 308–09 (5th Cir. 2010), abrogated

on other grounds by Thomas v. Lumpkin, 995 F.3d 432, 440 (5th Cir. 2021).

Two years after Williams, this Court held in Martinez that state-habeas

counsel’s failure to raise a substantial IATC claim in state court could serve as

cause to overcome the default of that claim. 566 U.S. at 9. As Tong points out,

the Ninth Circuit first addressed the argument that IAHC could establish good

cause under Rhines in Blake v. Baker, 745 F.3d 977, 979–84 (9th Cir. 2014).

Unlike the Fifth Circuit, the Ninth Circuit had no prior precedent on the

matter. Id. at 981 (noting that prior Ninth Circuit cases on good cause did not

address “whether IAC by post-conviction counsel could amount to good cause

under Rhines”). The Ninth Circuit held that IAHC could establish good cause

under Rhines, in part explaining that the holding was “consistent with and

supported by the Supreme Court’s recent opinion in Martinez[.]” Id. at 983.

Unlike, the Ninth Circuit though, the Fifth Circuit did have preMartinez precedent holding that IAHC could not establish good cause under

Rhines, namely, Williams, 602 F.3d at 308–09. Thus, when Tong raised his

good cause argument in the Fifth Circuit, the panel found itself bound by

Williams under the circuit’s “rule of orderliness [,]” which holds that a Fifth

Circuit panel is bound by prior precedent held by a prior Fifth Circuit panel.

App. 7 (citing United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014)). The

Fifth Circuit declined to revisit Williams on en banc reconsideration. Id. at 14.

This case is a poor vehicle to decide this question.

Because the lower court of appeals rejected Tong’s Rhines request on the

plainly meritless prong, this Court would have to find error on both the plainly

meritless and good cause prongs to grant Tong relief. As explained above,

Tong’s request is plainly meritless, and Tong has presented no split in

authority or federal question to be resolved. See supra Argument I(A). As this

claim is easily disposed of on the plainly meritless prong, it is a poor vehicle to

address the circuit split on the good cause prong.

Moreover, the lack of authority on the issue presented makes this case a

poor candidate for certiorari review. “[T]here is additional value to letting

important legal issues ‘percolate’ throughout the judicial system, so [this

Court] can have the benefit of different circuit court opinions on the same

subject.” Johnson v. U.S. R.R. Retirement Bd., 969 F.2d 1082, 1093 (D.C. Cir.

1992). This Court has no such benefit here. Tong cites to only the Ninth

Circuit’s discussion of how Martinez impacted good cause under Rhines. Blake,

745 F.3d at 783–84. The Fifth Circuit, however, found itself unable to address

the argument under the Circuit’s rule of orderliness. App. 7.10 This Court

should decline to take up an issue that has been so sparsely discussed by the

courts of appeals.

Good cause under Rhines is not the same as good

cause under Martinez.

In any event, this Court should decline review because the good-cause

analysis under Rhines is unchanged by the holding in Martinez. Tong counters

with the argument that Martinez Ramirez, by barring evidence underlying

defaulted IATC claims under § 2254(e)(2), forecloses federal review of

defaulted IATC claims. Pet. at 26. Thus, Tong contends, if IAHC cannot

establish good cause under Rhines, “no Court will ever review the merits of

potentially meritorious claims.” Id.

But Tong’s analysis is incomplete. If he truly has a pathway to merits

review in a subsequent state-court proceeding, he can always pursue that

remedy after his federal habeas proceedings. If his post-federal-habeas state

application is dismissed procedurally, Tong will know that a Rhines stay would

have accomplished nothing. If the post-federal-habeas state application is

Tong moved for en banc reconsideration to overturn the panel opinion in

Williams, and Fifth Circuit denied the motion. App. 14. But, for all we know, the Fifth

Circuit declined to revisit this precedent because Tong’s request fails under the

“plainly meritless” prong. Indeed, the proper case to address this type of argument

would likely involve a scenario in which state-habeas counsel failed to exhaust a claim

in state court but the claim would also not be barred under state procedural rules.

That is not the case here.

considered on the merits, Tong will obtain review on the merits of his Wiggins

claim, thus satisfying the equitable concerns of Martinez. See Martinez, 566

U.S. at 10–11 (“And if counsel’s errors in an initial-review collateral proceeding

do not establish cause to excuse the procedural default in a federal habeas

proceeding, no court will review the prisoner’s claims.”). Permitting a

petitioner to instead play this scenario out midstream of habeas proceedings

would “prolong federal habeas proceedings with no purpose”—an outcome this

Court has expressly forbidden. Shoop v. Twyford, 596 U.S. 811, 820 (2022)

(quoting Martinez Ramirez, 596 U.S. at 390); see also Martinez, 566 U.S. at 15

(finding that permitting IAHC to establish cause in federal court “ought not to

put a significant strain on state resources”). Thus, Rhines is an inappropriate

life-raft to rescue defaulted IATC claims from the jaws of Martinez Ramirez,

and it therefore makes little sense to equate good cause under Rhines with

good cause under Martinez.

II.

Tong’s Voir Dire Claim Does Not Merit Certiorari Review.

In his second argument, Tong challenges the Fifth Circuit’s rejection of

his voir-dire claim. The Fifth Circuit summarized the voir dire proceedings,

including the trial court’s process of giving the parties additional peremptory

strikes, as follows:

At the beginning of jury selection, the trial judge informed defense

counsel that Tong was allowed unlimited peremptory strikes. This

decision contravened Texas law, which permits only 15

peremptory strikes. . . . After Tong used 25 peremptory strikes and

10 jurors were seated, the State objected and the judge changed

course. It announced that Tong had used all available peremptory

challenges and, going forward, would have to challenge potential

jurors for cause. The judge overruled defense counsel’s objection to

this change in procedure. Tong wanted to use a peremptory strike

on the eleventh juror—Venireperson Sullivan—but the judge ruled

Tong was out of peremptory strikes. Tong admits there were no

grounds to strike Sullivan for cause.

App. 10 (citing Tex. Code Crim. Proc. art. 35.15(a)). The Fifth Circuit found the

voir-dire claim meritless, as Tong failed to show any biased or disqualified

juror sat on his jury. Id. at 11–12. Tong seeks certiorari review of this decision.

Such review is unwarranted. First, Tong fails to show any error, as the

Fifth Circuit correctly interpreted this Court’s precedent. And even if Tong

could show error, he fails to point to any split in authority or important

question that would be answered by granting his petition. Second, even if this

Court created the new rule Tong seeks, this case is a poor vehicle to do so

because his voir-dire claim will remain barred under the doctrines of

procedural default and nonretroactivity.

Procedural history of the claim

Tong raised this claim in the CCA on direct appeal, arguing that the

change in procedure regarding peremptory strikes violated his right to due

process. App. 35. The CCA held the claim was inadequately briefed, as Tong

only cited a single case that “neither deals with the same issue presented in

the instant case, nor provides any relevant constitutional or statutory

framework for evaluating his claim.” Id.

During state-habeas proceedings, Tong raised the same argument, but

couched it as an ineffective-assistance-of-appellate-counsel (IAAC) claim.

1.SHCR-01 46–50. He alleged that the voir-dire claim was a “dead bang

winner” that appellate counsel had failed to adequately brief. Id. at 48–50. The

CCA rejected the IAAC-voir-dire claim as well, finding that the trial court did

not err and that Tong could not show that “an unqualified juror served.” App.

44–50.

Tong raised both the standalone voir-dire claim and the IAAC-voir-dire

claim in federal district court. App. 25–32. The district court found the voirdire claim procedurally defaulted due to CCA’s dismissal on inadequatebriefing grounds but found that Tong could show cause and prejudice through

his exhausted IAAC claim if it were meritorious. Id. at 25–30. The district court

held that Tong failed to show any prejudice arising from the peremptory-strike

procedure, thus the voir-dire claim and the IAAC-voir-dire claim failed. Id. at

25–32. Because the IAAC version of the claim failed, the voir-dire claim was

also procedurally defaulted. Id. at 29–30. The district court, however, granted

Tong a certificate of appealability on the voir-dire claim. Tong, 2016 WL

5661698, at *37. 11

On appeal, the Fifth Circuit agreed with the district court’s rationale. It

found that, under this Court’s precedents, Tong cannot win on his claim

without showing that any biased juror was seated. App. 12. It therefore held

that appellate counsel was not ineffective and Tong could not show cause to

overcome the procedural default of the voir-dire claim. Id.

Tong seeks error correction of an already-correct decision.

The Fifth Circuit rejected Tong’s voir-dire argument finding that, “Tong

fails to identify any biased juror seated as a result of the change in procedure.”

App. 12 (citing Skilling v. United States, 561 U.S. 358, 398 (2010)). Tong alleges

that the Fifth Circuit’s “opinion conflicts with this Court’s prior opinions

concerning procedural due process and misapplies this Court’s prior

precedent.” Pet. at 33.

Contrary to Tong’s overstatement, the Fifth Circuit’s analysis was on

point. This Court has indeed held that “peremptory [strikes] are not of

There was some confusion regarding whether the district court’s granting a

COA on the voir-dire claim was also a COA grant on the corresponding IAAC claim.

On remand, the district court made clear that it only granted a COA on the voir-dire

claim, and not the corresponding IAAC claim. ECF No. 181. Thus, the IAAC aspect

of the claim discussed on appeal only addresses IAAC as a procedural mechanism to

show cause for the default of the underlying voir-dire claim. App. 11 (“Tong does not,

however, independently appeal the denial of his IAAC claim. He instead addresses

IAAC simply as a means to address the merits of his underlying voir dire claim. We

therefore do not address the TCCA’s ruling on his independent IAAC claim.”).

constitutional dimension.” Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (citing

Gray v. Mississippi, 481 U.S. 648, 663 (1987); Swain v. Alabama, 380 U.S. 202,

219 (1965); Stilson v. United States, 250 U.S. 583, 586 (1919)). “[R]ather, they

are one means to achieve the constitutionally required end of an impartial

jury.” United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000)). And it is

for the “State to determine the number of peremptory challenges allowed and

to define their purpose and manner of their exercise.” Ross, 487 U.S. at 89

(citing Stilson, 250 U.S. at 587; Frazier v. United States, 335 U.S. 497, 505 n.11

(1948)).

Leaving such procedural decisions to the states, this Court held that the

“Due Process Clause . . . safeguards not the meticulous observance of state

procedural prescriptions, but the ‘fundamental elements of fairness in a

criminal trial.’” Rivera v. Illinois, 556 U.S. 148, 158 (2009) (quoting Spencer v.

Texas, 385 U.S. 554, 563–64 (1967)). In Rivera, this Court addressed a

situation in which a defendant was improperly denied a statutorily required

peremptory strike, thus resulting in the seating of a juror against the

defendant’s preference. Id. at 159. This Court held that the “trial judge’s

refusal to excuse” the undesired juror “did not deprive Rivera of his

constitutional right to a fair trial before an impartial jury” because “no member

of his jury was removeable for cause.” Id. Similarly, where a defendant loses a

peremptory strike by using one on a venireperson that should have been struck

for cause, this Court has found no error of constitutional dimension so long as

no biased or disqualified juror sat on the jury. Ross, 487 U.S. at 89–91;

Martinez-Salazar, 528 U.S. at 315–17.

The Fifth Circuit’s analysis therefore correctly identified that the

touchstone of peremptory-strike claims is whether a biased or disqualified

juror sat on the jury. App. 11–12. Tong attempts to distinguish his case from

Rivera and Ross by focusing on the fact there was no suggestion in those cases

that the trial court “repeatedly and deliberately misapplied the law or acted in

an arbitrary or irrational manner.” Pet. at 32 (quoting Ross, 487 U.S. at 91 n.5

and Rivera, 556 U.S. at 160). But the quotes pulled from those cases are dicta.

Both Ross and Rivera hinged their analyses on the fact that the defendant’s

right to an impartial jury was not violated. See Ross, 487 U.S. at 87 (holding

that a defendant’s use of a peremptory strike to cure an improper denial for

cause did not “mandate[] reversal” because no biased juror was seated); Rivera,

556 U.S. at 158–59 (holding that improper denial of peremptory strike did not

violate the Due Process Clause where “Rivera’s jury was impartial for Sixth

Amendment Purposes”). The Fifth Circuit’s adherence to precedent can hardly

be called error.

And even assuming the Fifth Circuit should have given more weight to

the dicta in these cases, that is not reason to grant certiorari review. Certiorari

is generally reserved for resolving splits in authority or novel and undecided

questions of federal law. Sup. Ct. R. 10; Citibank, N.A. v. Wells Fargo Asia Ltd.,

495 U.S. 660, 674 (1990) (Rehnquist, C.J., concurring) (questioning why

certiorari was granted when the opinion decided “no novel or undecided

question of federal law” and merely “recanvasse[d] the same material already

canvassed by the Court of Appeals”). As such, “[a] Petition for a writ of

certiorari is rarely granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly stated rule of law.” Sup. Ct.

R. 10.

Tong has not cited to any split in authority or compelling question that

needs to be resolved here. He only seeks error correction of the Fifth Circuit’s

(already correct) holding that the trial court’s decision on peremptory strikes

did not fall within the ambit of this Court’s precedent. Such an uncompelling

question is not worthy of certiorari review. See Trevino v. Davis, 138 S. Ct.

1793, 1794 (2018) (Sotomayor, J., dissenting) (noting that “this Court is not

usually in the business of error correction”). Moreover, this case illustrates a

one-off departure of state procedure that is better left to the state-court

corrective process. See BMW of North America, Inc. v. Gore, 517 U.S. 559, 610

(1996) (Ginsburg, J., dissenting) (contending that an “idiosyncratic” situation

that is “unlikely to recur . . . does not call for error correction by this Court”);

see also Rivera, 556 U.S. at 158 (holding that the Due Process Clause does not

safeguard “the meticulous observance of state procedural prescriptions”).

This case is a poor vehicle to address Tong’s question

presented.

As explained above, Tong’s citation to dicta in Rivera and Ross doesn’t so

much demonstrate error in the lower courts; rather, it suggests a new rule:

That, where the deprivation of peremptory strikes “does not involve good faith

error on the part of the trial court”, some different rubric applies. Pet. at 33.

Tong’s case is a poor vehicle to entertain such a new rule because (1) Tong

benefitted from the trial court’s decision to deviate from statutory procedure,

(2) Tong’s claim is procedurally defaulted, and (3) Tong’s proposed new rule is

barred under nonretroactivity principles.

First, Tong’s argument ignores that the Fifth Circuit entertained his

argument that he might have been harmed by his reliance on the trial court’s

change in procedure. App. 12. The Fifth Circuit held that Tong’s argument was

purely speculative and that Tong in fact benefitted from the trial court’s

decision to deviate from statutory procedure:

[Tong] feebly argues that he was prejudiced because one cannot

know how voir dire would have played out had the judge followed

Texas’s rules on peremptory strikes. That is pure speculation.

Tong, moreover, ignores that the judge’s error benefited him by

giving him 10 extra peremptory strikes.

Id. This makes Tong’s situation an exceptionally poor vehicle to explore the

dicta in Rivera and Ross. While the complained-of error those cases did not rise

to the level of constitutional dimension, at least the complained-of harm was

apparent—the defendants in those cases lost statutorily afforded peremptory

strikes due to the trial court’s erroneous rulings. Conversely, Tong benefitted

from the trial court’s decision to give him more peremptory strikes than the

statutory maximum. 12 App. 12. Whatever door was left open in Rivera to

constitutionalize the use peremptory strikes (if it was left open at all), it was

surely left open to address those who lost peremptory strikes, not gained them.

Second, this claim is procedurally defaulted, and it can only be revived

upon a showing that appellate counsel was ineffective. App. 10–12. But, as

explained above, Tong in truth seeks a newly created exception to Rivera and

Ross. Even if this Court created such an exception, appellate counsel certainly

could not have been ineffective for failing to anticipate a novel rewrite of this

Court’s jurisprudence on peremptory strikes. See Smith v. Robbins, 528 U.S.

259, 285–88 (2000) (adopting the Strickland13 framework for analyzing IAAC

claims); see also United States v. Fields, 565 F.3d 290, 296 (5th Cir. 2009)

(holding that “counsel need not anticipate changes in the law or raise meritless

objections”); Green v. Johnson, 116 F.3d 1115, 1125 (5th Cir. 1997) (“[T]here is

Tellingly, Tong doesn’t explain what harm analysis he envisions under his

proposed rule, nor does he argue harm at all. To the extent Tong claims that the

decision amounted to structural error, that is foreclosed by precedent. See Rivera, 556

U.S. at 161–62. And, as the Fifth Circuit noted, the claim of structural error is also

procedurally defaulted. App. 12. To the extent Tong urges this Court to adopt a new

rule of structural error, his argument is foreclosed by the same default and

nonretroactivity obstacles listed in this section.

Strickland v. Washington, 466 U.S. 668 (1984).

no general duty on the part of defense counsel to anticipate changes in the

law[.]”). Thus, even if this Court announced a new rule, Tong could not avail

himself of it; he would not be able to show appellate counsel was ineffective

and he therefore could not overcome the procedural default of his claim.

And third, because Tong proposes a new rule, this claim is barred by the

non-retroactivity principles of Teague v. Lane, 489 U.S. 288, 310 (1989). “New

procedural rules” that “alter ‘only the manner of determining the defendant’s

culpability’ . . . do not apply retroactively on federal collateral review.”

Edwards v. Vannoy, 593 U.S. 255, 276 (2021) (quoting Schriro v. Summerlin,

542 U.S. 348, 353 (2004)). Tong effectively asks this Court to impose such a

new rule of procedure constitutionalizing the process of granting peremptory

strikes to state-court litigants based on the conduct of the trial court. See

Teague, 489 U.S. at 301 (“[A] case announces a new rule if the result was not

dictated by precedent existing at the time the defendant’s conviction became

final.”). But he is precluded from doing so here—on federal collateral review.

See Edwards, 593 U.S. at 276.

CONCLUSION

For these reasons, this Court should deny Tong’s petition for certiorari.

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/ Ali Mustapha Nasser

ALI MUSTAPHA NASSER

Assistant Attorney General

State Bar No. 24098169

Counsel of Record

Post Office Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1400

ali.nasser@oag.texas.gov

Attorneys for Respondent–Appellee

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