Respondents Brief — Ruben Gutierrez, Petitioner v. Luis Saenz, et al.

Supreme Court briefJan 17, 2025

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No. 23-7809

In the Supreme Court of the United States

RUBEN GUTIERREZ, PETITIONER

LUIS SAENZ, ET AL.,

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS

KEN PAXTON

Attorney General of Texas

AARON L. NIELSON

Solicitor General

BRENT WEBSTER

First Assistant Attorney

General

WILLIAM F. COLE

Deputy Solicitor General

Counsel of Record

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

CAMERON FRASER

Assistant Solicitor General

William.Cole@oag.texas.gov

(512) 936-1700

ERIC ABELS

JEFFERSON D. CLENDENIN

Assistant Attorneys General

QU ES TIO N P RE SEN TED

In Reed v. Goertz, 598 U.S. 230 (2023), this Court held

that when a state prisoner is denied access to post-conviction DNA testing under a state statute, a federal judgment declaring the statute unconstitutional can redress

the prisoner’s injury if (1) it would “eliminate the state

prosecutor’s justification for denying DNA testing” and

thereby (2) “significant[ly] increase . . . the likelihood

that the state prosecutor would grant access to the

requested evidence.” Id. at 234 (cleaned up).

In this case, Petitioner Ruben Gutierrez sought and

received a judgment from the district court declaring

Texas’s DNA-testing statute, Texas Code of Criminal

Procedure, Chapter 64, unconstitutional insofar as it

allows a prisoner sentenced to death to conduct postconviction DNA testing to challenge his conviction but

not his sentence. Yet the Texas Court of Criminal Appeals (“CCA”) has held, in three separate opinions over

the course of thirteen years, that Gutierrez would not be

eligible for DNA testing under state law even if he could

use the results to challenge his sentence.

Following issuance of the district court’s declaratory

judgment, Cameron County District Attorney Luis

Saenz has continued to stand on that independent statelaw ground—among others—as a basis for continuing to

deny Gutierrez DNA testing. And just last summer, the

CCA held that the district court’s declaratory judgment

did not change the fact that Gutierrez is ineligible for

DNA testing under state law.

The question presented is whether, under Reed,

Gutierrez’s injury is redressable by the declaratory

judgment he sought and obtained from the district court.

(I)

TA BLE OF C ONTE N TS

Page

Question Presented.................................................. I

Table of Authorities ...............................................IV

Introduction.............................................................. 1

Statement ................................................................. 3

I. Gutierrez’s Capital-Murder Conviction ...... 3

A. Escolastica Harrison’s murder .............. 3

B. The police’s investigation and

Gutierrez’s confession ............................ 3

C. Gutierrez’s trial, conviction, and

sentence ................................................... 6

II. Gutierrez’s Collateral Postconviction

Litigation....................................................... 8

A. Gutierrez’s first motion for DNA

testing, two state habeas applications,

and federal habeas petition .................... 8

B. Gutierrez’s second motion for DNA

testing .................................................... 11

C. Gutierrez’s federal civil rights lawsuit 13

D. Gutierrez’s third motion for DNA

testing .................................................... 16

Summary of Argument .......................................... 17

Argument................................................................ 21

I. Gutierrez Lacks Standing. ......................... 21

A. Gutierrez’s injury is not redressable

under Reed. ........................................... 22

B. Gutierrez’s arguments are meritless. . 28

1. The theoretical possibility that

Saenz could unilaterally agree to

DNA testing does not establish

redressability. ................................. 28

(II)

III

2. Gutierrez cannot establish

redressability by speculating that

Saenz might disregard the CCA’s

previous decisions. .......................... 30

3. Gutierrez cannot establish

redressability by adopting a new

theory of injury. .............................. 32

4. The Fifth Circuit did not fashion a

novel redressability test but

faithfully applied this Court’s

decision in Reed............................... 38

II. Alternatively, This Case is Now Moot. ..... 42

Conclusion .............................................................. 47

TA BLE OF AU T HOR I TIE S

Page(s)

Cases:

Allen v. Wright,

468 U.S. 737 (1984) ....................................................... 23

Already, LLC v. Nike, Inc.,

568 U.S. 85 (2013) ......................................................... 44

Arizonans for Off. Eng. v. Arizona,

520 U.S. 43 (1997) ......................................................... 43

Bank of Am., N.A. v. Caulkett,

575 U.S. 790 (2015) ....................................................... 39

California v. Texas,

593 U.S. 659 (2021) ....................................................... 23

Canales v. Stephens,

765 F.3d 551 (5th Cir. 2014) ........................................ 37

Chafin v. Chafin,

568 U.S. 165 (2013) ........................................... 21, 43, 44

Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004) ....................................................... 42

Ctr. for Biological Diversity v. Env’t Prot. Agency,

861 F.3d 174 (D.C. Cir. 2017) ................................ 36, 37

Dep’t of Educ. v. Brown,

600 U.S. 551 (2023) ........................................... 22, 36, 37

Dist. Att’ys Off. for Third Jud. Dist. v. Osborne,

557 U.S. 52 (2009) ................................................... 20, 35

Enmund v. Florida,

458 U.S. 782 (1982) ....................................................... 10

Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280 (2005) ....................................................... 45

Food & Drug Admin. v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ....................................................... 22

Franklin v. Massachusetts,

505 U.S. 788 (1992) ........................................... 23, 29, 39

Fuentes v. Shevin,

407 U.S. 67 (1972) ................................................... 34, 35

Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66 (2013) ............................................. 20, 43, 44

Ex parte Gutierrez,

No. WR-59,552-01, 2004 WL 7330936

(Tex. Crim. App. Sept. 15, 2004) ................................... 8

Ex parte Gutierrez,

No. WR-59,552-01, 2008 WL 2059277

(Tex. Crim. App. May 14, 2008) .................................... 8

Ex parte Gutierrez,

No. WR-59,552-02 (Tex. Crim. App.

Aug. 24, 2011) ................................................................ 11

Ex parte Gutierrez,

No. WR-59,552-05, 2020 WL 3118514

(Tex. Crim. App. June 12, 2020) ................................. 32

In re Gutierrez,

No. WR-59,552-03, 2019 WL 5418389

(Tex. Crim. App. Oct. 22, 2019) ................................... 11

Gutierrez v. Saenz,

141 S.Ct. 1260 (2021) .................................................... 14

Gutierrez v. State,

No. 73,462 (Tex. Crim. App. Jan. 16, 2002) ............. 7, 8

Gutierrez v. Stephens,

577 U.S. 829 (2015) ....................................................... 11

Gutierrez v. Stephens,

590 F. App’x 371 (5th Cir. 2014) ....................... 9, 10, 11

Gutierrez v. Stephens,

No. 1:09-cv-22, 2013 WL 12092544

(S.D. Tex. Oct. 13, 2013) ............................................. 8-9

Haaland v. Brackeen,

599 U.S. 255 (2023) ......................... 20, 23, 24, 29, 33, 41

Hewitt v. Helms,

482 U.S. 755 (1987) ................................................. 19, 29

Holberg v. State,

425 S.W.3d 282 (Tex. Crim. App. 2014) ................ 19, 31

Honig v. Doe,

484 U.S. 305 (1988) ....................................................... 43

Johnson v. De Grandy,

512 U.S. 997 (1994) ....................................................... 45

Knox v. Serv. Emps. Int’l Union, Loc. 1000,

567 U.S. 298 (2012) .................................................. 43-44

Lewis v. Cont’l Bank Corp.,

494 U.S. 472 (1990) ....................................................... 43

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ............................... 21, 22, 28, 36, 37

Medimmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) ....................................................... 23

Ex parte Milam,

No. WR-79,322-04, 2021 WL 197088

(Tex. Crim. App. Jan. 15, 2021)................................... 34

Montana v. United States,

440 U.S. 147 (1979) ....................................................... 41

Murphy v. Hunt,

455 U.S. 478 (1982) ....................................................... 44

Murray v. Giarratano,

492 U.S. 1 (1989) ..................................................... 20, 35

Peralta v. Heights Med. Ctr., Inc.,

485 U.S. 80 (1988) ................................................... 34, 35

Preiser v. Newkirk,

422 U.S. 395 (1975) ....................................................... 43

VII

Ramirez v. Collier,

595 U.S. 411 (2022) ....................................................... 13

Reed v. Goertz,

598 U.S. 230 (2023) . I, 1, 2, 17, 18, 21, 23, 25, 27, 28, 33,

38, 39, 40, 42, 44, 45

Reed v. State,

541 S.W.3d 759 (Tex. Crim. App. 2017)...................... 31

Rocha v. Thaler,

626 F.3d 815 (5th Cir. 2010) ........................................ 37

Rooker v. Fid. Tr. Co.,

263 U.S. 413 (1923) ....................................................... 45

S. Pac. Ry. Co. v. United States,

168 U.S. 1 (1897) ........................................................... 41

Skinner v. Switzer,

562 U.S. 521 (2011) ....................................................... 45

Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg’l Plan. Agency, Inc.,

535 U.S. 302 (2002) ....................................................... 26

Tison v. Arizona,

481 U.S. 137 (1987) ....................................................... 10

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ................................................. 22, 29

U.S. Parole Comm’n v. Geraghty,

445 U.S. 388 (1980) ....................................................... 43

United States v. Juv. Male,

564 U.S. 932 (2011) ........................................... 19, 33, 36

United States v. Sineneng-Smith,

590 U.S. 371 (2020) ....................................................... 39

Utah v. Evans,

536 U.S 452 (2002) ...................................... 24, 28, 38, 39

VIII

Ex parte Weathers, No. WR-64,302-02,

2012 WL 1378105 (Tex. Crim. App.

Apr. 18, 2012) ................................................................ 34

Webster v Fall,

266 U.S. 507 (1925) ....................................................... 42

Constitutional Provisions and Statutes:

U.S. Const.:

amend. I......................................................................... 13

amend. VIII .................................................................. 13

amend. XIV ......................................................... 1, 13, 15

5 U.S.C.:

§ 553(b) .......................................................................... 37

§ 553(c) ........................................................................... 37

16 U.S.C. § 1536(a)(2)......................................................... 37

20 U.S.C. § 1098a(a)-(b) ..................................................... 37

28 U.S.C.:

§ 1257(a) ........................................................................ 45

§ 2201(a) ........................................................................ 43

42 U.S.C:

§ 1983 ....................................................... 8, 13, 39, 42, 45

§ 4332(2)(C) ................................................................... 37

Tex. Code Crim. Proc.:

art. 11.071 ................................................................ 34, 36

art. 11.071, § 5(a) ........................................ 11, 32, 33, 37

art. 11.071, § 5(a)(1) ...................................................... 37

art. 11.071, § 5(a)(3) .......................................... 15, 36, 37

art. 37.071(b)(1)-(2) ......................................................... 7

art. 37.071(e)(1) ............................................................... 7

art. 64.01(b)(1)(B) ........................................................... 9

art. 64.03(a)(1)(C) ............................................. 10, 26, 41

art. 64.03(a)(2) ............................................................... 12

art. 64.03(a)(2)(A) ................................................... 10, 25

art. 64.03(a)(2)(B) ................................................... 26, 41

Tex. Penal Code § 7.01(a) .................................................... 7

Other Authorities:

Act of May 20, 2011, 82nd Leg., R.S., ch.

366, § 1, 2011 Tex. Gen. Laws 1016)

(S.B. 122, eff. Sept. 1, 2011) ......................................... 10

Brief for Defendants-Appellants,

Gutierrez v. Saenz, No. 21-70009

(5th Cir. Feb. 14, 2022) ................................................ 34

Brief for Respondent, Reed v. Goertz,

No. 21-422 (U.S. Aug. 23, 2022) ............................ 24, 42

Brief of Plaintiff-Appellee, Gutierrez v. Saenz,

No. 21-7009 (5th Cir. Aug. 1, 2022) ............................. 33

Order, Gutierrez v. Davis, No. 1:09-CV-22

(S.D. Tex. Aug. 22, 2018) ............................................. 11

Order of Dismissal, Gutierrez v. Saenz, et al.,

No. 1:19-CV-185 (S.D. Tex. Mar. 10, 2023) ................ 13

Subsequent Appl. For Post-Conviction Writ

of Habeas Corpus, Ex parte Gutierrez,

No. 98-CR-1391 (107th Dist. Ct.,

Cameron County, Tex. June 8, 2020) ......................... 32

INT RODU C TION

In 1998, Ruben Gutierrez and two other individuals

concocted a plot to rob 85-year-old Escolastica Harrison

of the nearly $600,000 in cash Gutierrez knew she stored

in her mobile home. During the robbery, Mrs. Harrison

was beaten to death and repeatedly stabbed with screwdrivers in the face and neck. Multiple witnesses placed

Gutierrez at the scene of the crime, and Gutierrez confessed to planning the robbery and then carrying it out

in the very room where Mrs. Harrison was being murdered. After a jury trial, Gutierrez was convicted and

sentenced to death. His conviction was affirmed on direct

appeal, and his efforts to win habeas relief from state and

federal courts have been repeatedly rejected.

For the last fourteen years, Gutierrez has also unsuccessfully sought access to DNA testing of certain evidence that he aims to use to challenge his death sentence

in a future (second) subsequent state habeas application.

The Texas Court of Criminal Appeals (“CCA”) has rejected those efforts three separate times, finding that

Gutierrez was not entitled to DNA testing because he

could not meet the required elements under Texas Code

of Criminal Procedure, Chapter 64. Following his second

failed attempt to win DNA testing, Gutierrez filed this

federal civil rights lawsuit seeking to hold various aspects of Chapter 64 unconstitutional under the Due Process Clause. The district court accepted one of those theories, declaring Chapter 64 unconstitutional insofar as it

allows a prisoner sentenced to death to conduct postconviction DNA testing to challenge his conviction but

not his capital sentence. Yet following this Court’s decision in Reed v. Goertz, 598 U.S. 230 (2023), the Fifth Circuit reversed on Article III standing grounds, holding

that Gutierrez failed to prove redressability. The court

(1)

observed that the CCA had already held twice that even

if Gutierrez could use that evidence to challenge his sentence, he would still not be entitled to DNA testing under

Texas law. And Saenz was “quite likely to follow” the

CCA’s holdings rather than a declaratory judgment that

has no effect on Gutierrez’s ultimate eligibility for DNA

testing under Texas law. Pet.App.12.

This Court should affirm. The district court’s declaratory judgment does not “eliminate the state

prosecutor’s justification for denying DNA testing,”

Reed, 598 U.S. at 234, because that judgment affects only

one of multiple, independent state-law grounds that

support District Attorney Saenz’s decision to deny

access to the evidence. Likewise, the declaratory

judgment does nothing to “significant[ly] increase . . . the

likelihood that the state prosecutor would grant access

to the requested evidence.” Id. (cleaned up). That was

affirmatively proven when Saenz continued to stand on

his objections in response to Gutierrez’s attempt to use

the declaratory judgment in support of a third motion for

DNA testing in state court. And just last summer, the

CCA affirmed the denial of Gutierrez’s motion,

reiterating for a third time that Gutierrez was not

entitled to DNA testing under state law even if he could

use the evidence to challenge his sentence. Thus, the declaratory judgment Gutierrez won does not redress the

injury he suffers from denial of access to DNA testing,

and he lacks Article III standing to pursue it. For similar

reasons, these events now render Gutierrez’s case moot,

robbing him of any personal stake in the outcome of the

case and making the district court’s declaratory judgment purely advisory.

The Court should therefore affirm the Fifth Circuit’s

decision dismissing the case for lack of jurisdiction.

ST ATE MEN T

I. Gutierrez’s Capital-Murder Conviction

A. Escolastica Harrison’s murder

In September 1998, Avel Cuellar discovered the lifeless body of his aunt, 85-year-old Escolastica Harrison,

laying in a pool of her own blood in the bedroom of the

mobile home they shared in Brownsville, Texas.

17.RR.37, 117-18.1 Mrs. Harrison had extensive bruising

to her face and neck as well as at least thirteen stab

wounds, one of which punctured her skull, inflicted by

what appeared to be flathead and Phillips-head screwdrivers. 19.RR.226-27, 234-39. The nearly $600,000 in

cash that she kept in her trailer from her management of

the mobile-home site was nowhere to be found, and her

home office had been ransacked. 18.RR.106-110; see

17.RR.81-82. Mrs. Harrison’s ultimate cause of death

was “[h]omicidal blows to the left eyebrow area of the

face and the right side of the head,” which “severely and

fatally damaged her brain.” 19.RR.224-25.

B. The police’s investigation and Gutierrez’s

confession

The police’s investigation of this crime led detectives

to Ruben Gutierrez. Gutierrez was a friend of Mrs. Harrison’s nephew, Cuellar, and had drawn close to Mrs.

Harrison while befriending Cuellar. 17.RR.88-95. That

friendship led to Gutierrez being one of the few people

who knew that Mrs. Harrison kept large quantities of

cash in her home because she did not trust banks.

17.RR.96-97. Acting on multiple reports that Gutierrez

“RR,” preceded by volume number and followed by page numbers, refers to the court reporter’s record of Gutierrez’s capitalmurder trial.

was spotted in the mobile-home park around Mrs. Harrison’s home during the evening of her murder, detectives sought to bring Gutierrez in for questioning.

18.RR.133-34. Gutierrez voluntarily appeared at the police station and told detectives that he had encountered

Cuellar and another friend while he was visiting the mobile-home park on the Friday before the murder, but

that he was driving around with another friend on the

Saturday of the murder. 18.RR.120-21, 131-32. Yet the

detectives had already spoken with multiple witnesses

who placed Gutierrez outside of Mrs. Harrison’s home on

Saturday—the day she was murdered—so the detectives pressed him on this point, asking whether he was

sure about those dates. 18.RR.133. At that point,

Gutierrez abruptly ended the interview and left the police station. 18.RR.134-35.

Upon the detectives’ further investigation, the individual Gutierrez claimed he was with the night of

Mrs. Harrison’s murder contradicted his alibi.

18.RR.137-38. A tip also led detectives to Gutierrez’s two

accomplices, Rene Garcia and Pedro Gracia, who were in

possession of large quantities of cash and newly purchased vehicles and electronics. 18.RR.142-44. The police

then obtained, and later executed, a capital-murder warrant for Gutierrez’s arrest. 18.RR.148-49. After learning

that his two accomplices were in custody and had given

statements to the police,2 Gutierrez volunteered another

Although they were “referred to but not admitted at trial,”

JA.578a, the police secured a statement from Rene Garcia “that

places [Gutierrez] in Mrs. Harrison’s home and stabbing her,” along

with a statement from Pedro Gracia “that places [Gutierrez] inside

Mrs. Harrison’s home at the time of the murder,” JA.587a. The CCA

held that it could properly, and constitutionally, consider those

statement to the police. 18.RR.162; see 30.RR.Ex.45. In

this statement, Gutierrez claimed that Gracia approached him and asked for his help in robbing

Mrs. Harrison. 18.RR.168. Gutierrez agreed, recruited

Garcia, and then came up with a plan for the robbery:

while Gracia distracted Mrs. Harrison by pretending to

be interested in renting a lot in her mobile-home park,

Garcia would slip into her house to steal the money from

her bedroom closet, where Gutierrez knew it would be.

18.RR.169.

Though Gutierrez confessed that “[t]here was no

doubt about the fact that I planned the whole ripoff,” he

claimed that he “never wanted for either one of them to

kill Ms. Harrison.” 18.RR.172. Gutierrez insisted that,

while Gracia and Garcia took off to Mrs. Harrison’s home

with two screwdrivers in hand, he waited at a nearby

park for Gracia and Garcia to complete the robbery.

18.RR.169-71. And according to Gutierrez, when the two

returned with a blue suitcase containing Mrs. Harrison’s

files and a toolbox full of her cash, Garcia was holding a

bloody screwdriver and confessed to killing Mrs. Harrison. 18.RR.170. At that point, Gutierrez “decided that

[he] did not want any money that they had just ripped

off” and insisted he would walk home. 18.RR.170-71, 172.

Following this confession, Gutierrez led detectives right

to the location of the blue suitcase (he claimed Gracia told

him where it was). 18.RR.178-79, 183-89.

The next day, Gutierrez agreed to give a third statement to the police. 19.RR.52-53; see 30.RR.Ex.66. In this

statement, Gutierrez admitted that he had previously

“lied” about not “being in [Mrs. Harrison’s] house”

statements when assessing Gutierrez’s eligibility for DNA testing

under Chapter 64. See JA.582a-585a.

during her murder. 19.RR.67. Instead, Gutierrez now

confessed that Gracia was the driver and Gutierrez “was

in the house looking for the money while [Garcia] was

stabbing that lady.” 19.RR.68. He stated that Garcia was

supposed to lure Mrs. Harrison outside of her home on

the pretense of renting a mobile-home lot while

Gutierrez would enter the house to take the money.

19.RR.68. But when Gutierrez entered the home, Garcia

and Mrs. Harrison were still inside talking, so Garcia

punched her in the face, knocking her out, and then

dragged her by her hair into her bedroom, where

Gutierrez searched for her money. 19.RR.68-69. While

he was rooting around in Mrs. Harrison’s closet,

Gutierrez claimed, Garcia began repeatedly stabbing

Mrs. Harrison with a screwdriver that “had a clear handle with red,” which was one of the two screwdrivers he

said “we” brought to the house (the other being “a star

type” screwdriver). 19.RR.68-69. Even after Gutierrez

located the money and “tossed it to” Garcia, Gutierrez

contended that Garcia “put it on the bed,” “told [him]

that [Mrs. Harrison] didn’t want to die,” and then went

back to “stabbing the old lady,” only stopping after

Gutierrez “told him to blow it off” as he “was walking

out” the door “with the blue suitcase” to catch a getaway

ride from Gracia. 19.RR.69.

C. Gutierrez’s trial, conviction, and sentence

Gutierrez was eventually indicted and tried for capital murder. “The prosecution’s theory at trial was that

[Gutierrez], either as a principal or as a party, intentionally murdered Mrs. Harrison during a robbery.”

JA.571a. In addition to Gutierrez’s confession placing

himself inside Mrs. Harrison’s home and, at minimum,

burglarizing her home while she was being murdered,

the prosecution’s case-in-chief also emphasized “the

medical examiner’s testimony that two different instruments caused the stab wounds”—flathead and Phillipshead screwdrivers—and the fact that “four different people,” including one who did not know him at all, placed

Gutierrez at the mobile-home park the day of Mrs. Harrison’s murder. JA.571a. The jury was instructed that it

could convict Gutierrez of capital murder “if it found that

Gutierrez[,] ‘acting alone or as a party’ with the accomplice[,] intentionally caused the victim’s death.” JA.571a;

20.RR.52; see Tex. Penal Code § 7.01(a). The jury returned a general verdict of guilt. JA.571a; 21.RR.3-5.

At the punishment stage of Gutierrez’s trial, the jury

was instructed that Gutierrez could be sentenced to

death if it found that he: (1) posed a “continuing threat to

society,” (2) “intended to kill the deceased or another or

anticipated that a human life would be taken,” and

(3) there was a lack of “a sufficient mitigating circumstance or circumstances to warrant that a sentence of life

imprisonment without parole rather than a death sentence be imposed.” Tex. Code Crim. Proc.

art. 37.071(b)(1)-(2), (e)(1); see 24.RR.126-33. At the punishment stage, the jury heard evidence of Gutierrez’s

lengthy involvement with the criminal-justice system, including: his commission of several burglaries, assault of

a police officer, threats to kill a teacher, instigation of “an

‘almost riot’ because county jail employees would not

give him any Kool-Aid,” threat to “shank” a prison guard

if the guard interfered with his attempt to escape, and

threat to kill an assistant district attorney following his

conviction. See Gutierrez v. State, No. 73,462, slip op. at

6 (Tex. Crim. App. Jan. 16, 2002). The jury answered the

first two special issues in the affirmative and, as to the

third, found a lack of sufficient mitigating evidence.

25.RR.3-5. Based on those findings, the trial judge sentenced Gutierrez to death. 25.RR.7-8.

The CCA affirmed Gutierrez’s conviction on direct

appeal, overruling each of his ten asserted points of error, including challenges to the legal sufficiency of the

evidence at the guilt-innocence stage, the legal sufficiency of the evidence as to the first two special issues at

the punishment stage, and the voluntariness of his confession. See Gutierrez, No. 73,462, supra, slip op. at 5-21.

II. Gutierrez’s Collateral Postconviction Litigation

More than two decades of collateral litigation have

followed Gutierrez’s conviction and its affirmance on direct appeal. That litigation includes three state habeas

applications, one federal habeas petition, three motions

for DNA testing, and the instant lawsuit under 42 U.S.C

§ 1983 challenging the constitutionality of Texas’s DNAtesting statute, Chapter 64.

A. Gutierrez’s first motion for DNA testing, two

state habeas applications, and federal habeas

petition

Following affirmance of his conviction on direct appeal, Gutierrez first filed a state habeas application raising “twenty allegations in which he challenge[d] the validity of his conviction and resulting sentence.” Ex parte

Gutierrez, No. WR-59,552-01, 2004 WL 7330936, at *1

(Tex. Crim. App. Sept. 15, 2004). The CCA rejected most

of those claims but remanded the case to the trial court

for fact development on two ineffective assistance of trial

counsel claims related to the voluntariness of his confession. Id. The CCA later rejected those two remaining

claims upon the case’s return to that court. Ex parte

Gutierrez, No. WR-59,552-01, 2008 WL 2059277, at *1

(Tex. Crim. App. May 14, 2008); see Gutierrez v.

Stephens, No. 1:09-cv-22, 2013 WL 12092544, at *18-*21,

*23 (S.D. Tex. Oct. 13, 2013).

Gutierrez then turned to federal court, filing a federal

habeas petition in January 2009. But “[b]ecause his petition included two claims that he had not raised in his initial state habeas [application], the district court stayed

and administratively closed the case to allow him to fully

exhaust his state court remedies.” Gutierrez v. Stephens,

590 F. App’x 371, 374 (5th Cir. 2014).

Once back in state court, Gutierrez initiated a lawsuit

making a request for DNA testing under Chapter 64.

Gutierrez sought DNA testing of five items: (1) a blood

sample taken from Mrs. Harrison; (2) a shirt belonging

to Cuellar containing apparent blood stains; (3) nail

scrapings taken from Mrs. Harrison; (4) blood samples

from Cuellar’s bathroom, a raincoat found in or just outside of that bathroom, and Mrs. Harrison’s sofa; and (5) a

single loose hair found on Mrs. Harrison. JA.572a.

Gutierrez’s theory was that “exculpatory results” from

this testing “would tend to support his assertion that ‘he

was not present during, did not participate in, and did

not know or anticipate the victim’s murder.’” JA.577a578a.

The trial court issued findings of fact and conclusions

of law denying the request for DNA testing, and the CCA

affirmed. JA.574a, 588a-604a. The CCA identified four

independent grounds for rejecting Gutierrez’s request

for DNA testing. First, the court held that Gutierrez was

“at fault” for not previously testing the evidence because

his counsel made a strategic decision not to test the evidence so that he could argue that the police’s own failure

to test the evidence demonstrated a “lack of investigation” and that they “fell down on the job.” JA.588a-593a

(citing Tex. Code Crim. Proc. art. 64.01(b)(1)(B)

(amended by Act of May 20, 2011, 82nd Leg., R.S., ch.

366, § 1, 2011 Tex. Gen. Laws 1016, 1016) (S.B. 122, eff.

Sept. 1, 2011)). Second, the court held that “the trial

judge acted within his discretion in finding that identity

was and is not an issue in this case,” given that the case

was tried under Texas’s law of parties, see supra at 7,

and, among other things, Gutierrez’s own confession and

multiple witnesses placing him at the scene of the murder. JA.597a-598a; see also JA.582a-587a; Tex. Code

Crim. Proc. art. 64.03(a)(1)(C) (requiring a convict seeking to obtain DNA testing to show that “identity was or

is an issue in the case”). Third, the court held that “[t]he

statute does not authorize testing when exculpatory testing results might affect only the punishment or sentence

that he received.” JA.602a; see Tex. Code Crim. Proc.

art. 64.03(a)(2)(A) (requiring a convict seeking to obtain

DNA testing to “establish[] by a preponderance of the

evidence that” he “would not have been convicted if exculpatory results had been obtained through DNA testing” (emphasis added)). Finally, the court held that

“even if Chapter 64 did apply to evidence that might affect the punishment stage as well as conviction,”

Gutierrez “still would not be entitled to testing” because

“the record facts satisfy the Enmund/Tison[3] culpability requirements that he played a major role in the underlying robbery and that his acts showed a reckless indifference to human life.” JA.603a.

In response to the CCA’s rejection of his request for

DNA testing—and in an effort to exhaust his claims for

purposes of his federal habeas petition, Gutierrez, 590 F.

App’x at 374—Gutierrez filed a second state habeas

Tison v. Arizona, 481 U.S. 137 (1987); Enmund v. Florida, 458

U.S. 782 (1982).

application, this time arguing, among other things, that

the State violated its Brady obligations by failing to submit certain biological evidence for DNA testing. JA.551a.

The CCA dismissed that application as an abuse of the

writ under state law. JA.551a (citing Ex parte Gutierrez,

No. WR-59,552-02 (Tex. Crim. App. Aug. 24, 2011)); see

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

Having run out of options in state court, Gutierrez returned to federal court and filed an amended habeas petition. The district court eventually denied that petition,

and the Fifth Circuit declined to issue a certificate of appealability. Gutierrez, 590 F. App’x at 384. This Court

thereafter denied his certiorari petition. Gutierrez v. Stephens, 577 U.S. 829 (2015).

B. Gutierrez’s second motion for DNA testing

Following the conclusion of federal habeas proceedings, Gutierrez’s court-appointed counsel withdrew from

the case, and the district court appointed new counsel.

Order, Gutierrez v. Davis, No. 1:09-CV-22 (S.D. Tex.

Aug. 22, 2018), ECF No. 79. To allow new counsel time

to gain familiarity with the case, the district court stayed

Gutierrez’s then-pending execution. Id. After that stay

expired and a new execution date was set, new counsel

also succeeded in obtaining a stay of that second execution due to state-law issues concerning the warrant of execution. In re Gutierrez, No. WR-59,552-03, 2019 WL

5418389, at *1 (Tex. Crim. App. Oct. 22, 2019) (per curiam).

About a month after the second execution date was

set, Gutierrez filed a second motion for postconviction

DNA testing in state court, seeking testing of the same

items he sought in his first motion, in addition to Mrs.

Harrison’s “nightgown, robe, and slip.” JA.554a. The

trial court denied his motion in a written order. Tracking

two of Chapter 64’s statutory requirements, the court

held that Gutierrez was not entitled to DNA testing because: (1) he “ha[d] not shown by a preponderance of the

evidence that a reasonable probability exists that” he

“would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing,”

and (2) his “request for the proposed DNA testing is

made for the purpose of unreasonably delaying the execution of [his] sentence or [the] administration of justice.” JA.555a.

The CCA affirmed on three independent state-law

grounds. First, the court independently analyzed each of

the five items of which Gutierrez sought testing and concluded that, for each one, he had “not met the requirements of Article 64.03(a)(2),” because he had “not established by a preponderance of the evidence that he would

not have been convicted if exculpatory results were obtained through DNA testing.” JA.561a-564a. Second, the

court reaffirmed its prior conclusion that Chapter 64

“does not authorize testing when exculpatory testing results might affect only the punishment or sentence that

he received.” JA.564a. Third, the court separately reaffirmed its alternative finding that “even if Chapter 64 did

apply to evidence that might affect the punishment

stage,” Gutierrez “still would not be entitled to testing”

because “the record facts satisfy the Enmund/Tison culpability requirements that he played a major role in the

underlying robbery and that his acts showed a reckless

indifference to human life.” JA.564a-565a. The court did

not reach, and therefore left undisturbed, the trial

court’s finding that Gutierrez was not entitled to DNA

testing for another independent state-law reason: his request for DNA testing was “made to unreasonably delay

the execution of [his] sentence or the administration of

justice.” JA.565a-566a.

C. Gutierrez’s federal civil rights lawsuit

While Gutierrez was litigating his second DNA-testing motion in state court, he filed the instant lawsuit in

federal district court under 42 U.S.C. § 1983 against the

Cameron County, Texas District Attorney, Luis Saenz,

and the Chief of the Brownsville, Texas Police, Felix

Sauceda, Jr. JA.32a. Because the CCA had not yet ruled

on his second request for DNA testing, the district court

stayed the case pending resolution of that motion.

JA.32a.

Following the CCA’s denial of his second DNA-testing motion, supra at 12, the district court lifted the stay

and Gutierrez filed an amended complaint. JA.427a-466a.

In that operative complaint, Gutierrez sought, as relevant here, a declaratory judgment holding that Chapter

64 violated his procedural due process rights under the

Fourteenth Amendment.4 Gutierrez advanced two procedural-due-process theories. The first challenged Chapter

Gutierrez also brought claims under the Eighth Amendment

and the First Amendment (the latter under an access-to-courts theory) related to the denial of DNA testing. JA.458a-459a. He also

brought claims under the First Amendment and the Religious Land

Use and Institutionalized Persons Act challenging the Texas Department of Criminal Justice’s then-existing policy excluding outside spiritual advisors from the execution chamber. JA.459a-463a.

None of these claims is at issue here. The First and Eighth Amendment claims related to DNA testing were dismissed at the pleading

stage, JA.239a-240a, and Gutierrez did not appeal that dismissal.

The spiritual-advisor claims were ultimately dismissed as moot after the policy was changed following this Court’s decision in

Ramirez v. Collier, 595 U.S. 411 (2022). Order of Dismissal,

Gutierrez v. Saenz, et al., No. 1:19-CV-185 (S.D. Tex. Mar. 10, 2023),

ECF No. 213.

64’s requirement that a convict demonstrate by a “preponderance of evidence” that he “would not have been

convicted if exculpatory results had been obtained

through DNA testing,” which Gutierrez argued was too

“high” of a standard. JA.448a-449a. In particular,

Gutierrez contended that the CCA’s application of that

standard in affirming the rejection of his two motions for

DNA testing showed that, “as construed by the CCA, the

statute effectively precludes DNA testing.” JA.448a455a. Gutierrez’s second theory was that the statute’s

limitation of DNA testing to challenges to a prisoner’s

conviction but not his sentence deprived him of a liberty

interest in obtaining a reduced sentence. JA.456a-458a.

Saenz and Sauceda initially moved to dismiss

Gutierrez’s complaint on several grounds, including

standing, sovereign immunity, statute of limitations, and

failure to state a claim. JA.370a-372a, 379a-389a, 392a412a. The district court denied the motion in relevant

part. JA.286a-327a. After ancillary litigation over

Gutierrez’s claim demanding the presence of an outside

spiritual advisor in the execution chamber that eventually reached this Court, see Gutierrez v. Saenz, 141 S.Ct.

1260 (2021), the district court ordered briefing on “what,

if any, DNA claims remain in this case and the merits of

those claims.” JA.26a.

After receiving briefing on the DNA claim, the court

entered a declaratory judgment holding Chapter 64

partly unconstitutional. JA.61a. The court first rejected

Gutierrez’s challenge to Chapter 64’s “preponderance of

the evidence . . . standard,” holding that Gutierrez failed

to show that it is impossible to receive DNA testing under Chapter 64 or that the standard “offends historical

practice or a fundamental principle of justice.” JA.53a56a. But the court nevertheless accepted Gutierrez’s

theory that limiting DNA testing to challenges to a prisoner’s conviction but not his sentence was unconstitutional. JA.56a-61a. In the court’s view, because Texas law

permits prisoners to file a “subsequent habeas application” challenging their death sentence under Texas Code

of Criminal Procedure article 11.071, § 5(a)(3), precluding them from obtaining DNA testing to attack that sentence renders Texas’s abuse-of-the-writ statute “illusory” in violation of the Due Process Clause because it

“barricades the primary avenue for” a prisoner to “make

use of that right.” JA.59a-60a. The district court thereafter entered a final judgment disposing of Gutierrez’s

DNA testing claims. JA.63a-71a. Although Saenz and

Sauceda appealed the district court’s declaratory judgment to the Fifth Circuit, Gutierrez did not cross-appeal

the district court’s rejection of his procedural due process challenge to Chapter 64’s preponderance-of-the-evidence standard.

On appeal, the Fifth Circuit held that Gutierrez

lacked standing to seek a declaratory judgment because

he failed to establish redressability. Pet.App.7-15. Applying this Court’s recent decision in Reed, the court held

“there is not a substantial likelihood that a favorable ruling by a federal court on Gutierrez’s claims would cause

the prosecutor to order DNA testing,” because the CCA

“has already found that Gutierrez would have no right to

DNA testing even if the statutory bar to testing for evidence about sentencing were held to be unconstitutional.” Pet.App.14, 15. Moreover, the court concluded

that “a state prosecutor is quite likely to follow what his

state’s highest criminal court has already held should be

the effect of such a decision,” and “a state court, if presented with Gutierrez’s request for DNA testing, would

be bound by the Texas Court of Criminal Appeals’

holding that such testing would be meaningless.”

Pet.App.12, 15.

This Court granted Gutierrez’s petition for a writ of

certiorari.

D. Gutierrez’s third motion for DNA testing

Shortly after securing a declaratory judgment from

the district court holding Chapter 64 partly unconstitutional—but before the Fifth Circuit reversed that decision on standing grounds—Gutierrez filed a third motion

for DNA testing in state court, “seek[ing] testing of the

same items for which he sought testing in his first two

motions.” JA.467a-468a. After initial litigation over jurisdictional questions was resolved by the CCA, see

JA.481a-490a, the trial court rejected Gutierrez’s request for DNA testing on the merits. The court held that

Gutierrez’s request was “collaterally estopped, barred

by the doctrine of res judicata, and barred by the doctrine of law of the case,” given the CCA’s two prior opinions rejecting Gutierrez’s requests for testing. JA.476a.

After the Fifth Circuit issued its opinion and while

Gutierrez’s certiorari petition was pending in this Court,

the CCA affirmed the trial court’s denial of Gutierrez’s

motion. JA.480a. Gutierrez argued that his motion was

not barred by res judicata or the law-of-the-case doctrine

because this time he had the benefit of the district

court’s declaratory judgment. But the CCA rejected

Gutierrez’s argument that the district court’s declaratory judgment (which by then had been reversed by the

Fifth Circuit) changed the analysis. JA.477a-479a. As the

CCA explained, its two prior opinions rested on a statelaw ground that was independent of the one the district

court held unconstitutional, and that ground “continues

to apply here.” JA.479a. For a third time, the CCA held

that “[e]ven if, Chapter 64 applied to evidence affecting

the punishment stage, given the evidence in this case,

[Gutierrez] cannot show that the jury would have answered the punishment issues differently should he obtain exculpatory DNA results.” JA.479a. Consequently,

“[g]iven the evidence presented the statute did not operate unconstitutionally as to” Gutierrez. JA.479a.

SU M MA RY O F A RGU MENT

I. The Court should affirm because the Fifth Circuit

correctly held that Gutierrez lacks Article III standing.

In Reed, this Court held that a Texas prisoner who had

been denied access to DNA testing under Chapter 64 had

standing to seek a federal-court judgment declaring

Chapter 64 unconstitutional. 598 U.S. at 234. And under

Reed, Gutierrez’s injury—denial of access to DNA

testing—is redressable if the declaratory judgment

(1) would “eliminate the state prosecutor’s justification

for

denying

DNA

testing”

and

thereby

(2) “significant[ly] increase . . . the likelihood that the

state prosecutor would grant access to the requested

evidence.” Id.

Under this standard, Gutierrez failed to prove

redressability. The district court declared Chapter 64

unconsitutional insofar as it allows a prisoner sentenced

to death to conduct post-conviction DNA testing to

challenge his conviction but not his capital sentence.

JA.56a-61a. Yet the CCA has held three times over

thirteen years that Gutierrez would be ineligible for

DNA testing even if he could use it to challenge his

sentence, because exculpatory DNA evidence would not

change that sentence. See JA.603a; JA.565a; JA.479a.

And over the course of its three detailed opinions

denying Gutierrez’s motions for DNA testing, the CCA

has identified other statutory grounds that Saenz relied

on to deny Gutierrez DNA testing under state law.

JA.597a-598a; JA.555a. Because multiple, independent

state-law grounds that were unaffected by the district

court’s declaratory judgment continue to support

Saenz’s decision to deny Gutierrez access to evidence for

DNA testing, the district court’s declaratory judgment

does not “eliminate the state prosecutor’s justification

for denying DNA testing,” and therefore it will not

redress his injury attributable to the denial of access to

that evidence. Reed, 598 U.S. at 234

For similar reasons, Gutierrez cannot show that the

district

court’s

declaratory

judgment

would

“significant[ly] increase . . . the likelihood” that Saenz

“would grant access to the requested evidence.” Id. To

the contrary, as the Fifth Circuit correctly explained, a

Texas prosecutor is “quite likely to follow” the CCA’s

holdings rather than a declaratory judgment that has no

effect on Gutierrez’s ultimate eligibility for DNA testing

under Texas law. Pet.App.12. But the Court need not

speculate about what Saenz would do. After Gutierrez

obtained the declaratory judgment from the district

court, he took it to state court and filed a third motion for

DNA testing, seeking to compel Saenz to turn over the

evidence. Saenz refused, and the CCA upheld that refusal, holding that the declaratory judgment did not alter

the preclusive effect of its two prior decisions denying

DNA testing on other state-law grounds. See JA.477a479a. Accordingly, Gutierrez’s theory that the district

court’s declaratory judgment would “significant[ly] increase . . . the likelihood” that Saenz “would grant access

to the requested evidence,” Reed, 598 U.S. at 234, has already been disproven.

Gutierrez resists these straightforward conclusions

in several ways, but none has merit. First, he argues (at

5, 25, 27, 37-38, 40) that his injury is redressable because

Saenz might one day “unilaterally” decide to hand over

the requested evidence. This argument, founded entirely

on speculation, is an admission that it is not the district

court’s declaratory judgment that would redress his injury but the voluntary actions of Saenz. This Court’s

precedents are clear, however, that though redress is

sought “from the defendant,” it must come “through the

court.” Hewitt v. Helms, 482 U.S. 755, 761 (1987).

Second, Gutierrez contends (at 14, 33, 37, 38-39, 40)

that his injury is redressable because Saenz might

choose to disregard the CCA’s repeated holding that he

is not eligible for DNA testing even if he could use it to

challenge his death sentence, because the CCA based

that conclusion on only the “record facts” at trial and not

on the supposedly new theories and evidence he wishes

to present. But this argument disregards the fact that

the CCA was required under state law to consider only

those record facts when adjudicating Gutierrez’s right to

DNA testing under Chapter 64. See Holberg v. State, 425

S.W.3d 282, 285 (Tex. Crim. App. 2014). Moreover, this

argument is just as speculative as the first, disproven by

Saenz’s actual conduct when confronted with this allegedly new evidence and theories, and yet another admission that it is not the district court’s declaratory judgment providing the redress.

Third, Gutierrez attempts to reconceptualize his injury (at 31-35) as a “procedural injury” that sounds in

due process: a denial of his right to file a subsequent

state habeas application. But that right is not at issue in

this case; only Gutierrez’s right to access evidence for

DNA testing is. And Gutierrez’s argument that the district court’s declaratory judgment might have a “possible, indirect benefit in a future lawsuit,” United States v.

Juv. Male, 564 U.S. 932, 937 (2011) (per curiam), here a

hypothetical third state habeas application, “does not

preserve standing” in this lawsuit, Haaland v. Brackeen,

599 U.S. 255, 294 (2023). Nor does this refashioning of his

injury help him cure his redressability problem. Multiple, independent state-law grounds that are unaffected

by the district court’s declaratory judgment continue to

support Saenz’s decision to deny Gutierrez access to the

evidence for DNA testing—and thus block his path to filing a state habeas application accompanied by the DNA

testing results.

Because Gutierrez has no constitutional right to DNA

testing, Dist. Att’ys Off. for Third Jud. Dist. v. Osborne,

557 U.S. 52, 68 (2009), or to state habeas review, Murray

v. Giarratano, 492 U.S. 1, 7-8 (1989), his analogy to cases

involving deprivations of constitutionally protected property interests without notice and a hearing are inapt.

And because the procedural right he now attempts to assert here—the right to file a subsequent state habeas application with a particular mix of evidence—is different

in kind from the ones at issue in the Administrative Procedure Act (“APA”) and environmental-law cases he

cites (at 6-7, 35), those cases are inapposite.

Finally, Gutierrez accuses (at 5, 22, 27) the Fifth Circuit of fashioning a “novel” test for redressability that

was not envisioned by this Court’s decision in Reed. But

the Fifth Circuit’s decision represents a straightforward

application of Reed to the facts of this case. Gutierrez’s

caricature of the Fifth Circuit’s decision is inaccurate

and ultimately fails to identify any error.

II. Alternatively, the Court should hold that this case

is now moot, because an “intervening circumstance

deprives” Gutierrez of a “personal stake in the outcome

of the lawsuit.” Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66, 72 (2013). That circumstance is Saenz’s

refusal to provide Gutierrez with access to the requested

evidence even after the district court issued its declaratory judgment, and the CCA’s holding that the declaratory judgment did not change Gutierrez’s ineligibility for

DNA testing under state law. JA.477a-479a.

Because the CCA’s decision is the final, binding

determination of Gutierrez’s eligibility for DNA testing

under Texas law in the light of the declaratory judgment,

the district court lacks any power “to grant any effectual

relief” to Gutierrez, Chafin v. Chafin, 568 U.S. 165, 172

(2013), in the form of a declaratory judgment making it

more likely that Saenz “would grant access to the requested evidence,” Reed, 598 U.S. at 234. And because

the district court’s declaratory judgment is now entirely

advisory, this case is now moot.

ARGU MEN T

I. Gutierrez Lacks Standing.

This case is not justiciable because Gutierrez lacks

Article III standing. The narrow declaratory judgment

that Gutierrez sought and received from the district

court would not redress his injury—the denial of access

to evidence for DNA testing under Chapter 64—because

District Attorney Saenz’s5 decision to deny Gutierrez

In Reed, this Court identified “[t]he state prosecutor” as the

relevant state actor for purposes of traceability because the prosecutor “denied access to the evidence and thereby caused Reed’s injury.” 598 U.S. at 234. Though Gutierrez alleged that Sauceda, the

Brownsville Police Chief, “has custody of certain evidence,”

JA.432a, he provided no evidence, see Lujan v. Defs. of Wildlife, 504

U.S. 555, 561 (1992), showing that Sauceda, in addition to Saenz,

“denied him access to evidence,” Reed, 598 U.S. at 234. Thus,

Gutierrez has not established traceability as to Sauceda. But if the

Court disagrees, the redressability problems discussed in this brief

apply equally to Sauceda.

DNA testing is supported by multiple, independent

state-law grounds, only one of which was affected by the

district court’s declaratory judgment. Indeed, the CCA

has held three times that Gutierrez would be ineligible

for DNA testing even if he could use the results to challenge his sentence. Gutierrez’s efforts to avoid this

straightforward conclusion fail.

A. Gutierrez’s injury is not redressable under

Reed.

The Court should affirm the Fifth Circuit’s decision

dismissing Gutierrez’s case for lack of jurisdiction because he did not establish the redressability element of

the test for Article III standing.

1. Article III limits the federal judiciary to deciding

“‘Cases’ and ‘Controversies.’” TransUnion LLC v.

Ramirez, 594 U.S. 413, 423 (2021) (quoting U.S. Const.

art. III). And an “essential and unchanging part of the

case-or-controversy requirement of Article III” is the

doctrine of standing. Lujan, 504 U.S. at 560. Standing

“tends to assure that the legal questions presented to the

court will be resolved, not in the rarified atmosphere of

a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of

judicial action.” Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 379 (2024) (citation omitted).

To establish standing, a plaintiff “must plead and—ultimately—prove” three familiar elements. Dep’t of Educ.

v. Brown, 600 U.S. 551, 561 (2023). Those elements are

“(i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury

was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.”

TransUnion, 594 U.S. at 423.

At issue in this case is the third element: redressability. “To determine whether an injury is redressable, a

court will consider the relationship between ‘the judicial

relief requested’ and the ‘injury’ suffered.” California v.

Texas, 593 U.S. 659, 672 (2021) (citing Allen v. Wright,

468 U.S. 737, 753 n.19 (1984)). “[R]edressability requires

that the court be able to afford relief through the exercise

of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its

power.” Brackeen, 599 U.S. at 294 (citing Franklin v.

Massachusetts, 505 U.S. 788, 825 (1992) (Scalia, J., concurring in part and concurring in the judgment)). After

all, “[i]t is a federal court’s judgment, not its opinion, that

remedies an injury; thus it is the judgment, not the opinion, that demonstrates redressability.” Id. “[T]his means

that the dispute must ‘be “real and substantial” and “admit of specific relief through a decree of a conclusive

character, as distinguished from an opinion advising

what the law would be upon a hypothetical state of

facts.”’” California, 593 U.S. at 672 (quoting Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126-27

(2007)). This requirement applies equally to declaratoryjudgment actions and “suits for every other type of remedy,” including coercive relief such as injunctions or

damages. Id.

Just two Terms ago, this Court articulated the circumstances under which a prisoner like Gutierrez, who

has been denied post-conviction DNA testing under a

state statute, has standing to seek a federal-court judgment declaring that statute unconstitutional. See Reed,

598 U.S. at 234. The Court first identified the nature of

the “injury in fact: denial of access to the requested evidence.” Id. It then held that such an injury would be

traceable to “[t]he state prosecutor, who is the named

defendant,” because that prosecutor “denied access to

the evidence and thereby caused [the] injury.” 6 Id. Finally, the Court held that a federal court’s declaratory

judgment concluding that “Texas’s post-conviction DNA

testing procedures violate due process” would redress

the injury if “that court order would eliminate the state

prosecutor’s justification for denying DNA testing” and

thereby “‘significant[ly] increase . . . the likelihood’ that

the state prosecutor would grant access to the requested

evidence.” Id. (quoting Utah v. Evans, 536 U.S 452, 464

(2002)). That is because “[i]t is ‘substantially likely’ that

the state prosecutor would abide by such a court order,”

even though it does not formally coerce that prosecutor

to do so. Id. (quoting Evans, 536 U.S at 464); see Brackeen, 599 U.S. at 293 (holding that it is the “preclusive effect” of declaratory judgments that save them from being “little more than an advisory opinion”).

2. Under Reed, Gutierrez failed to establish redressability. The district court declared Chapter 64 unconstitutional because it allows a convict access to evidence for

DNA testing to challenge his conviction but not his sentence. JA.61a. Yet that singular ground for declaring

part of the statute unconstitutional was only one of several independent state-law grounds supporting District

Attorney Saenz’s decision to deny access to the requested evidence. Indeed, over the course of its three

In so holding, the Court rejected Goertz’s argument that the

denial of DNA testing under Chapter 64 was neither traceable to

the state prosecutor nor redressable by a declaratory judgment

against him, because “[n]o state actor enforces Chapter 64” and instead “Texas courts independently” apply the statute’s requirements. Brief for Respondent 38, Reed v. Goertz, No. 21-422 (U.S.

Aug. 23, 2022) (“Reed Respondent’s Br.”); cf. Reed, 598 U.S. at 248249 (Thomas, J., dissenting).

opinions denying Gutierrez’s motions for DNA testing,

the CCA identified three independent reasons, grounded

in Chapter 64, that Saenz has advanced for denying access to the evidence. Each of those reasons has been upheld by either the CCA itself or the state trial court, and

each stands unaffected by the district court’s narrow declaratory judgment in this case. The district court’s declaratory judgment therefore in no way “eliminate[s]”

Saenz’s “justification for denying DNA testing.” Reed,

598 U.S. at 234.

Start with the CCA’s repeated holding, made three

times over thirteen years, that “even if Chapter 64 did

apply to evidence that might affect the punishment stage

as well as conviction, [Gutierrez] still would not be entitled to testing.” JA.603a; see also JA.564a-565a; JA.478a.

As the CCA has explained, “given the evidence in this

case, [Gutierrez] cannot show that the jury would have

answered the punishment issues differently should he

obtain exculpatory DNA results.” JA.479a. And there is

no constitutional problem with his sentence because “the

record facts satisfy the” Eighth Amendment’s “culpability requirements that he played a major role in the underlying robbery and that his acts showed a reckless indifference to human life.” JA.603a; JA.565a; JA.478a.

Nothing about the district court’s declaratory judgment purports to address—let alone “eliminate,” Reed,

598 U.S. at 234—this freestanding basis for denying

DNA testing. In fact, the CCA’s holding tracks Chapter

64’s statutory “preponderance of the evidence” requirement as applied to sentencing challenges. Tex. Code

Crim Proc. art. 64.03(a)(2)(A). Gutierrez challenged the

constitutionality of that preponderance of the evidence

standard in the district court, but the court expressly rejected that argument. JA.53a-56a. That is a final

judgment that Gutierrez chose not to appeal to the Fifth

Circuit and which he therefore cannot contest in this

Court. See, e.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, Inc., 535 U.S. 302, 334 (2002).

Two other independent statutory criteria under

Chapter 64 further support Saenz’s decision to deny

Gutierrez DNA testing and likewise remain unaffected

by the district court’s declaratory judgment. First, in its

2011 decision denying Gutierrez’s first DNA testing motion, the CCA held that Gutierrez was not entitled to

DNA testing because he failed to meet Chapter 64’s statutory requirement to prove that “identity was or is an

issue in the case,” Tex. Code Crim. Proc.

art. 64.03(a)(1)(C). JA.597a-598a. Saenz continued to

maintain that Gutierrez failed to satisfy this statutory requirement throughout proceedings on Gutierrez’s second DNA-testing motion, though the CCA did not end up

reaching this issue. JA.556a-557a. Second, in rejecting

Gutierrez’s second DNA-testing motion, the state trial

court expressly found that Gutierrez’s motion was “made

for the purpose of unreasonably delaying the execution

of [his] sentence or administration of justice,” JA.555a,

which is a freestanding statutory hurdle Gutierrez was

required to clear to win DNA testing under Chapter 64,

see Tex. Code Crim. Proc. art. 64.03(a)(2)(B). Because

the CCA did not reach that issue in affirming the trial

court’s order, JA.565a-566a—thereby leaving the trial

court’s finding undisturbed—Saenz remains free to deny

DNA testing on that independent statutory ground, too.

Again, the district court’s narrow declaratory judgment

in this case does not purport to address either of these

two independent statutory grounds for rejecting

Gutierrez’s request for DNA testing, so that judgment

does not “eliminate the state prosecutor’s justification

for denying DNA testing.” Reed, 598 U.S. at 234.

For similar reasons, there is no “likelihood,” much

less a “significant[ly] increase[d]” one, that the district

court’s declaratory judgment would induce “the state

prosecutor [to] grant access to the requested evidence.”

Id. As the Fifth Circuit correctly observed, “a state prosecutor is quite likely to follow what his state’s highest

court has already held should be the effect of such a decision.” Pet.App.12. And because the CCA has held three

times that Gutierrez would still not be entitled to DNA

testing even if he could use the results to challenge his

sentence—and one time that identity was not an issue in

the case—Saenz is likely to follow those independent

state-law grounds to deny Gutierrez access to DNA testing.

But this Court need not speculate about what Saenz

might do—we already know. After securing a declaratory judgment from the district court, Gutierrez raced to

state court to file his third motion for DNA testing, arguing that the district court’s declaratory judgment

changed the legal landscape, allowed him to avoid the

preclusive effect of the CCA’s two prior denials of testing, and required granting him access to the evidence.

See JA.475a-479a. Yet Saenz refused—even though

Gutierrez had the district court’s freshly inked declaratory judgment in hand—and the CCA upheld that decision by denying Gutierrez’s motion for DNA testing for

a third time. JA.477a-479a. The district court’s declaratory judgment therefore did not allow Gutierrez to “obtain relief that directly redresses the injury suffered,”

because it did not ultimately win him “access to the requested evidence.” Reed, 598 U.S. at 234. Thus, on the

unique facts of this case, the redressability question

posed by Reed—whether a declaratory judgment would

“‘significant[ly] increase . . . the likelihood’ that the state

prosecutor would grant access to the requested evidence,” id. (quoting Evans, 536 U.S. at 464)—has already been answered concretely in the negative.

B. Gutierrez’s arguments are meritless.

Gutierrez offers a jumble of arguments in an effort to

establish redressability and cast doubt on the Fifth Circuit’s application of Reed. None has merit.

1. The theoretical possibility that Saenz

could unilaterally agree to DNA testing

does not establish redressability.

Gutierrez’s primary theory of redressability (at 5, 25,

27, 37-38 40) is that his injury is redressable because

Saenz could “unilaterally agree to testing” and possesses

the theoretical “capabil[ity] of” voluntarily agreeing to

hand over the evidence “in accordance with the declaration.” Indeed, he surprisingly contends (at 36) that “[t]he

question” in this case “is not whether Gutierrez will be

ultimately successful in obtaining DNA testing,” but instead “whether there remains at least the possibility”

that a declaratory judgment would cause Saenz to “revisit” his decision to deny access.

This argument cannot be squared with this Court’s

holding in Reed that the declaratory judgment must “significant[ly] increase . . . the likelihood,” not just raise the

possibility, that “the state prosecutor would grant access

to the requested evidence.” 598 U.S. at 234 (emphasis

added). And it runs headlong into the well-established

principle that “‘speculat[ion]’ that the injury will be ‘redressed by a favorable decision’” is not enough to demonstrate Article III standing. Lujan, 504 U.S. at 561. Speculation is the most Gutierrez could possibly offer here,

since the district attorney has resisted Gutierrez’s efforts to obtain DNA testing since 2011.7 Worse yet,

Gutierrez’s speculation about what Saenz might do in response to a declaratory judgment has now been affirmatively disproven, given that Saenz declined to hand over

the evidence even after the district court issued its declaratory judgment.

Gutierrez’s argument is also a tacit concession that

his injury cannot “be redressed by judicial relief.”

TransUnion, 594 U.S. at 423 (emphasis added). After all,

if Gutierrez were to obtain DNA testing through the

“unilateral” efforts of Saenz, Pet. Br. 27, then definitionally the district court’s declaratory judgment would play

no role in that decision. But this Court has been clear:

though redress is sought “from the defendant,” it must

come “through the court.” Hewitt, 482 U.S. at 761. And

“redressability requires that the court be able to afford

relief through the exercise of its power, not through the

persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power.” Brackeen, 599 U.S.

at 294 (citing Franklin, 505 U.S. at 825 (Scalia, J., concurring in part and concurring in the judgment)). So, to

the extent that Gutierrez means to argue that the “persuasive” force of the district court’s reasoning might

someday induce Saenz to voluntarily wave the white flag,

that is simply not enough to establish redressability for

purposes of Article III standing.

The fact that a different district attorney voluntarily agreed to

allow a different defendant access to evidence for DNA testing does

not suggest anything about the likelihood that Saenz would agree to

that testing here. See Pet. Br. 37 (citing Skinner v. State, No. AP76,675, 2012 WL 2343616, at *1 (Tex. Crim. App. June 20, 2012)

(per curiam) (not designated for publication)).

2. Gutierrez cannot establish redressability

by speculating that Saenz might disregard

the CCA’s previous decisions.

Gutierrez does not directly address the Fifth Circuit’s holding that “a state prosecutor is quite likely to

follow what his state’s highest court has already held

should be the effect of” a declaratory judgment holding

a state DNA-testing statute unconstitutional.

Pet.App.12. Nor does he seriously contend with the fact

that multiple independent state-law grounds support

Saenz’s decision to deny access to the requested evidence. See supra at 25-26. Instead, he tries to circumvent

the CCA’s long-final determinations by suggesting that

“the CCA’s findings do not preclude” Saenz “from granting access to the evidence” voluntarily, Pet. Br. 37, because its determinations “do not embrace” a new version

of “the sentencing claim that [Gutierrez] seeks to develop and present” based on supposedly new evidence

and theories, Pet. Br. 33; see id.at 38-43.8

The “new evidence” that Gutierrez spills much ink describing

(at 38-43) constitutes variations on themes and arguments he has

pressed for years. For example, Gutierrez claims (at 39) that he has

new evidence that Avel Cuellar spoke with his nephew about stealing from his aunt and then told that nephew after she was murdered

that he had money buried in the mobile-home park. But one of

Gutierrez’s primary trial themes was that Cuellar was the true

killer. See 20.RR.92-102. Similarly, Gutierrez argues (at 39) that he

would like to attack the credibility of one of the detectives by arguing that his trial testimony was untruthful. But Gutierrez’s trial

strategy was built on the notion that the police did a poor job investigating and lied about the voluntariness of Gutierrez’s confession.

JA.592a-593a. Regardless, Gutierrez’s overarching theory is that

such evidence would “severely undercut the trial prosecution’s theory that Gutierrez was present during the murder and masterminded the plot.” Pet. Br. 41. Yet these new theories and evidence

are marked by a significant flaw: they contradict Gutierrez’s own

As an initial matter, this theory of redressability is

also speculative, foreclosed by Saenz’s decision to deny

testing even after the declaratory judgment was issued,

and an admission that it is not the declaratory judgment

that would redress his injury, but a voluntary act by

Saenz. See supra at 28-29. Yet it suffers from an additional flaw. Gutierrez criticizes the CCA (at 14, 40) for

relying only on “the facts in the trial record” when denying his requests for DNA testing under Chapter 64. But

it was required to do so: For purposes of Chapter 64 eligibility, Texas courts consider only “the mix of evidence

that was available at the time of trial.” Holberg, 425

S.W.3d at 285. Indeed, Reed made the same argument,

in the same context, before the CCA, and the CCA rejected it. As the CCA explained, “Reed’s brief on this

point claims post-trial factual developments undermine

the State’s theory at trial, but our review in this context

does not consider post-trial factual developments.” Reed

v. State, 541 S.W.3d 759, 774 (Tex. Crim. App. 2017). “Instead, we limit our review to whether exculpatory results

‘would alter the landscape if added to the mix of evidence

that was available at the time of trial.’” Id. (citing Holberg, 425 S.W.3d at 285).

Because the CCA has held that new evidence compiled post-trial cannot be considered when determining

a convict’s eligibility for DNA testing under Chapter 64,

Gutierrez has no basis to assert that his new evidence

and theories would cause Saenz to disregard the CCA’s

previous holdings. To the contrary, Gutierrez admits,

Pet. Br. 39, that he already presented this evidence to

confession admitting to planning the robbery and putting himself at

the scene of the murder, eyewitness testimony placing him at the

scene, and the incriminating statements of Garcia and Gracia. See

supra at 4 & n.2, 5-6; accord JA.585a-587a.

the state courts in conjunction with his second motion for

DNA testing, yet Saenz nevertheless “stated his opposition” to that motion, Pet. Br. 38.9 Gutierrez offers no reason to think Saenz will suddenly have a change of heart.

3. Gutierrez cannot establish redressability

by adopting a new theory of injury.

Unable to show how the narrow declaratory judgment he obtained would redress the injury he suffers—

namely the “denial of access to the requested [DNA] evidence,” Pet. Br. 28—Gutierrez attempts to reconceptualize (at 32-34, 35) his Article III injury as a “procedural

injury” sounding in due process: the deprivation of “his

right to be heard, that is, his right to develop and assert

his death-eligibility claim” via another subsequent state

habeas application. The Court should reject this sleight

of hand.

a. At the outset, the notion that the district court’s

declaratory judgment could have a “possible, indirect

benefit in a future lawsuit,” here a hypothetical third

In addition to presenting his allegedly new evidence and theories to a trial court “in support of his [second] Chapter 64 motion”

for DNA testing, Pet. Br. 39, Gutierrez also presented them to the

CCA when he filed a third state habeas application (his second subsequent one). Compare Pet. Br. 39, with Subsequent Appl. For

Post-Conviction Writ of Habeas Corpus 12, 13, 75 n.8, Ex parte

Gutierrez, No. 98-CR-1391 (107th Dist. Ct., Cameron County, Tex.

June 8, 2020) (per curiam). The CCA dismissed that application as

an abuse of the writ because the “specific facts,” Tex. Code Crim.

Proc. art. 11.071, § 5(a), Gutierrez marshalled did not meet the

standards for overcoming Texas’s bar on subsequent habeas applications, Ex parte Gutierrez, No. WR-59,552-05, 2020 WL 3118514,

at *1 (Tex. Crim. App. June 12, 2020). So while Gutierrez is correct

that no court has considered these supposedly new facts on plenary

merits review, he is wrong to say (at 39) that “no court has ever considered” them.

subsequent state habeas application, does not allow

Gutierrez to bootstrap redressability for the injury he

asserts in this lawsuit: access to DNA testing. Juv. Male,

564 U.S. at 937; see Brackeen, 599 U.S. at 294. Under

Reed, the only question is whether a declaratory judgment would significantly increase the likelihood that “the

state prosecutor would grant access to the requested evidence.” 598 U.S. at 234. Whether the district court’s declaratory judgment might prove useful in facilitating a

future state habeas application “does not preserve standing” here. Brackeen, 599 U.S. at 294.

Moreover, Gutierrez’s newfound reformulation of his

injury is inconsistent with the way he has described that

injury throughout this litigation. In his operative complaint, he alleged that his injury was Saenz’s “refus[al] to

release the biological evidence for testing,” which

“thereby prevent[s] Plaintiff from gaining access to exculpatory evidence.” JA.457a. In his merits brief to the

Fifth Circuit, he defined his injury as an “inability to access DNA testing.” Brief of Plaintiff-Appellee 19,

Gutierrez v. Saenz, No. 21-7009 (5th Cir. Aug. 1, 2022).

And in this Court, Gutierrez relied on Reed to identify

his injury as denial of access to evidence for DNA testing, both at the certiorari stage, Pet. 3, 14, and at the

merits stage, Pet. Br. 28. But regardless of how

Gutierrez chooses to characterize his Article III injury,

that still does not solve his redressability problem. After

all, even assuming that access to DNA testing is necessary to facilitate his ability to challenge his death sentence via a subsequent state habeas application,10 he still

As described more fully in Respondents’ brief to the Fifth Circuit, it is not. The district court wrongly held that Article 11.071,

§ 5(a) would be rendered illusory if convicts cannot obtain DNA

testing to challenge their sentence under Chapter 64. But even

cannot not show how the district court’s declaratory

judgment will redress that injury. Multiple, independent

state-law grounds that are unaffected by the district

court’s declaratory judgment continue to support

Saenz’s decision to deny Gutierrez access to the evidence—and thus block his path to acquiring and presenting such evidence in a state habeas application, too. See

supra at 25-26.

Gutierrez argues (at 34) that finding a lack of redressability here because other state-law grounds continue to

make Gutierrez ineligible for the death penalty would be

akin to a court approving the government’s seizure of

property without a pre-deprivation hearing because the

owner is behind on installment payments, Fuentes v.

Shevin, 407 U.S. 67, 83-84 (1972), or entering a default

judgment against a party without notice because the defendant did not have any meritorious defense, Peralta v.

Heights Med. Ctr., Inc., 485 U.S. 80, 86-87 (1988).

These analogies are inapt. A convict has no “freestanding” constitutional “right to DNA evidence”—or

for that matter a constitutional right to state habeas

without the availability of such DNA testing, the CCA regularly considers applications under that provision and, in fact, has granted

merits review of claims alleging ineligibility for the death penalty

under it. See, e.g., Ex parte Milam, No. WR-79,322-04, 2021 WL

197088, at *1 (Tex. Crim. App. Jan. 15, 2021) (per curiam); Ex parte

Weathers, No. WR-64,302-02, 2012 WL 1378105, at *1 (Tex. Crim.

App. Apr. 18, 2012) (per curiam). See Brief for Defendants-Appellants 32, Gutierrez v. Saenz, No. 21-70009 (5th Cir. Feb. 14, 2022).

More fundamentally, the district court’s holding discounts the possibility that other evidence apart from DNA material may provide

viable support in an Article 11.071 proceeding. Id. For example, the

defendant might discover new phone records, a witness might recant crucial testimony, or the defendant might find newly discovered video or audio evidence. Id.

review, Murray, 492 U.S. at 7-8—but a State may afford

him a liberty interest via a “state-created right” to such

evidence, Osborne, 557 U.S. at 68. In creating such a

right, a State “has more flexibility in deciding what procedures are needed in the context of postconviction relief,” given the diminished liberty interests of a convict

as compared to a “free man.” Id. at 68-69. And “[f]ederal

courts may upset a State’s postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.” Id. at 69. But it

is hardly a constitutional problem that Texas’s DNA

testing statute imposes “conditions and limits on access

to DNA evidence,” “just as the federal statute and all

state statutes” do. Id. at 70. Nor has Gutierrez shown

that Chapter 64’s prerequisites “are fundamentally inadequate to vindicate the substantive rights provided.” Id.

at 69. So Gutierrez’s analogy to outright denials of the

right to be heard are simply wrong.

In all events, Fuentes and Peralta establish the proposition that “[t]he right to be heard does not depend upon

an advance showing that one will surely prevail at the

hearing.” Fuentes, 407 U.S. at 87. But Gutierrez’s inability to meet Chapter 64’s requirements is not analogous

to the denial of notice or the opportunity to be heard. Indeed, such a claim would be difficult to make here, where

Gutierrez has filed three separate motions for DNA testing (each of which was carefully considered by the CCA),

three state habeas applications, and one federal habeas

petition. See supra at 8-13, 16-17, 32 n.9.

b. Even further afield is Gutierrez’s invocation (at

35) of the concept of a “procedural injury” by reference

to the principle that a “person who has been accorded a

procedural right to protect his concrete interests can assert that right without meeting all the normal standards

for redressability and immediacy.” Lujan, 504 U.S. at

572 n.7. Gutierrez cannot use this rule to duck his obligation to prove redressability.

Gutierrez claims (at 35) that Texas’s statute governing subsequent state habeas applications in death-penalty cases, Tex. Code Crim. Proc. art. 11.071, § 5(a)(3),

provides him a “procedural right to protect [his] concrete

interest in seeking relief from [his] death sentence[].”

Yet Gutierrez errs out of the gate because, even if Article

11.071 confers a procedural right on Gutierrez, he is not

“asserting that right,” Lujan, 504 U.S. at 572 n.7, to file

a subsequent habeas application in this federal civil

rights lawsuit. Instead, this suit challenges the constitutionality of a separate statute that governs access to

DNA testing. Tex. Code Crim. Proc. ch. 64. Thus,

Gutierrez is not entitled to take advantage of any rule

that allows for a relaxed showing of redressability in

“procedural rights” cases because he is not asserting in

this case the procedural right he claims he was denied.

And again, a “possible, indirect benefit in a future lawsuit” is not enough to ground redressability. Juv. Male,

564 U.S. at 937.

Furthermore, the procedural right Gutierrez asserts

here—filing a subsequent state habeas application—is

different in kind from the procedural rights in the APA

and environmental-law cases he cites. See Pet. Br. 6-7,

35. Those cases involve freestanding procedural rights,

such as the preparation of an environmental impact

statement, Lujan, 504 U.S. at 572 n.7, an opportunity for

notice-and-comment and negotiated rulemaking, Brown,

600 U.S. at 557-58, and a “statutory consultation obligation” under the Endangered Species Act, Ctr. for Biological Diversity v. Env’t Prot. Agency, 861 F.3d 174, 182

(D.C. Cir. 2017). Nothing in the rights-creating language

of those statutes requires a plaintiff to show the unlawfulness of the federal agency’s underlying substantive

action—licensing a dam, Lujan, 504 U.S. at 572 n.7, forgiving loans, Brown, 600 U.S. at 559, or authorizing the

use of a pesticide, Ctr. for Biological Diversity, 861 F.3d

at 177—before those rights can be vindicated. See, e.g., 5

U.S.C. § 553(b), (c) (APA notice and comment);

16 U.S.C. § 1536(a)(2)

(consultation);

U.S.C.

§ 1098a(a)-(b) (negotiated rulemaking); 42 U.S.C.

§ 4332(2)(C) (environmental impact statement).

But here, the right to file a subsequent habeas application is dependent upon an applicant making a preliminary showing that the government’s underlying substantive conduct—imposition of a death sentence—was unlawful. See Tex. Code Crim. Proc. art. 11.071, § 5(a)(1),

(3). Specifically, that applicant must make a showing of

“specific facts” that the claim was previously unavailable

as well as a “prima facie showing of merit,” Canales v.

Stephens, 765 F.3d 551, 565 (5th Cir. 2014) (citing Tex.

Code Crim. Proc. art. 11.071 § 5(a)(1)), 11 or specific facts

showing by clear and convincing evidence that no rational factfinder would have found in the State’s favor on

one of the special issues but for a constitutional violation,

Tex. Code Crim. Proc. art. 11.071 § 5(a)(3), Rocha v. Thaler, 626 F.3d 815, 832 (5th Cir. 2010). Because this procedural right incorporates a substantive standard that

must be met, Gutierrez, in this instance, must indeed

make a preliminary showing that “he will be successful

in vacating his death sentence” in order to show that his

“procedural right” has been violated. Pet. Br. 36.

Gutierrez is therefore wrong to argue (at 31-32, 35) that

As Canales explained, the CCA applies § 5(a) sequentially,

and if a claim is dismissed because it was previously available, the

dismissal is a procedural one. Canales, 765 F.3d at 565.

the APA and environmental-law cases are “illuminat[ing]” here or would be “call[ed] into question.” Instead, they are simply inapposite.

4. The Fifth Circuit did not fashion a novel

redressability test but faithfully applied

this Court’s decision in Reed.

Lastly, Gutierrez contends (at 5, 22, 27) that the Fifth

Circuit fashioned a “novel” test for redressability by requiring courts to “speculate” or “predict” what a defendant “might do following a declaratory judgment” and to

“scour” the state-court record to make that determination. He then argues (at 22, 31) that the Fifth Circuit’s

rule will encourage prosecutors to ignore court orders.

All three arguments are meritless.

a. Gutierrez first criticizes the Fifth Circuit (at 5, 25,

27, 31) for deploying a redressability test that depends

upon making a “predictive judgment” or “speculative

compliance-prediction” about what the state prosecutor

would do following entry of a declaratory judgment. But

Gutierrez is fighting this Court’s own precedent. It is

Reed itself that requires courts to make “a prediction

about what the state Respondents would do in the event

that a declaration were entered against them,” Pet. Br.

25, by considering whether entry of a declaratory judgment “‘would amount to a significant increase in the likelihood’ that the state prosecutor would grant access to

the requested evidence,” Reed, 598 U.S. at 234 (emphasis

added) (quoting Evans, 536 U.S. at 464); see also id. (observing that it is “‘substantially likely’ that the state

prosecutor would abide by” the district court’s declaratory judgment (emphasis added)).

Nor did Reed conjure this rule out of thin air: it expressly derived this principle from Evans, a case in

which this Court held that a declaratory judgment or

injunction requiring the Secretary of Commerce to “recalculate” population data in certain states for the 2000

decennial census due to the use of “legally improper

counting methods” and then “recertify the official result,” would redress Utah’s injury of receiving one less

member in the House of Representatives. 536 U.S. at

460-61. The Court explained that the Secretary’s submission of a new census report containing corrected population calculations “would amount to a significant increase

in the likelihood that the plaintiff would obtain relief that

directly redresses the injury suffered” because the

Court deemed it “substantially likely that the President

and other executive and congressional officials would

abide by an authoritative interpretation of the census

statute and constitutional provision.” Id. at 464 (quoting

Franklin, 505 U.S. at 803).

It is thus this Court’s redressability precedent, not

some newfound test manufactured by the Fifth Circuit

or Saenz, that requires a “predictive judgment,” Pet.

Br. 27, about whether issuance of the declaratory judgment “would amount to a significant increase in the likelihood” that Gutierrez would obtain DNA testing, Reed,

598 U.S. at 234. Gutierrez does not ask this Court to

overrule or modify Reed or Evans, so he must litigate

within their confines. See, e.g., Bank of Am., N.A. v.

Caulkett, 575 U.S. 790, 795 & n.† (2015); see also United

States v. Sineneng-Smith, 590 U.S. 371, 375-76 (2020).

b. Gutierrez is also wrong to argue (at 5, 22, 27) that

the Fifth Circuit grafted onto Reed’s redressability test

a new requirement that courts “scour[] the state court

record” to assess redressability in a Section 1983 DNAtesting case.

The Fifth Circuit held that “Reed does not apply

when a Section 1983 plaintiff is seeking a declaratory

judgment that some state statute or rule violates federal

law, but the highest state court already considered that

possible violation and found it would not justify the relief

being sought.” Pet.App.12. That is not a “novel test,” Pet.

Br. 5, but a particular application of Reed’s rule that a

declaratory judgment must “significant[ly] increase” the

“likelihood that the state prosecutor would grant access

to the requested evidence” for it to redress the injury associated with the denial of access to such evidence, Reed,

598 U.S. at 234. And applying the Fifth Circuit’s decision

does not require a court to plumb the depths of the statecourt record, but simply to consult judicial opinions from

the State’s highest court to assess what it has already

said about the state statute or rule at issue in the federal

case. True, the Fifth Circuit did briefly examine the federal- and state-court briefing in Reed to determine

whether “the proposed distinction . . . actually distinguishes Reed.” Pet.App.12-13 & n.4. But that examination was part of the Fifth Circuit’s determination

whether to “adopt” the rule, Pet.App.12—not a component of how courts will apply it going forward.

c. Finally, there is no merit to the argument that the

Fifth Circuit’s test would allow a defendant to defeat

standing by simply refusing to comply with a declaratory

judgment. Pet. Br. 22, 31; CAC Amicus 20-23.

Saenz has never indicated that he would not comply

with the district court’s declaratory judgment by, for example, continuing to withhold the requested evidence on

the ground that Gutierrez can only obtain DNA testing

to challenge his conviction but not his sentence. See Pet.

Br. 38 (acknowledging that Saenz previously argued that

the declaratory judgment was “law of the case” and

“binding”). But the fact that Saenz can continue to deny

access to DNA-testing evidence by relying on other,

independent state-law grounds, supra at 25-26, hardly

amounts to “noncompliance” with that declaratory judgment. Pet. Br. 31. It is the “preclusive effect” of a declaratory judgment that binds parties to that judgment and

“saves proper declaratory judgments from a redressability problem.” Brackeen, 599 U.S. at 293. But a declaratory judgment cannot have preclusive effect on issues or

claims it did not decide: “A fundamental precept of common-law adjudication, embodied in the related doctrines

of collateral estoppel and res judicata, is that a ‘right,

question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot

be disputed in a subsequent suit between the same parties or their privies . . .’” Montana v. United States, 440

U.S. 147, 153 (1979) (emphasis added) (quoting S. Pac.

Ry. Co. v. United States, 168 U.S. 1, 48-49 (1897)).

Here, the district court did not declare unconstitutional Chapter 64’s requirement that a trial court find

that “identity was or is an issue in the case,” Tex. Code

Crim. Proc. art. 64.03(a)(1)(C), and that a convict show

that “the request for the proposed DNA testing is not

made to unreasonably delay the execution of [the] sentence or administration of justice,” id. art. 64.03(a)(2)(B).

So Saenz remains free to rely on those two grounds—the

former endorsed by the CCA and the latter by a state

trial court—to deny access to DNA testing without running afoul of the district court’s declaratory judgment.

See supra at 26-27. Similarly, the district court’s declaratory judgment did not disturb the CCA’s repeat holding

that Gutierrez would not be entitled to DNA testing even

if Chapter 64 applied to challenges to a convict’s sentence

because he “cannot show that the jury would have answered the punishment issues differently should he obtain exculpatory DNA results,” JA.479a; see JA.565a-

566a; JA.603a. Saenz does not in any sense defy the district court’s declaratory judgment by continuing to rely

on this state-law finding to deny access to the evidence

Gutierrez seeks.12

II. Alternatively, This Case Is Now Moot.

Alternatively, this case should be dismissed for lack

of jurisdiction because it is now moot. Through this Section 1983 action, Gutierrez seeks a declaration that his

procedural due process rights are violated by Chapter

64’s restriction of access to DNA testing to only those

who are challenging their convictions but not those who

are challenging their sentences. JA.456a-458a. To show

that this declaratory judgment will redress his injury—

“denial of access to the requested [DNA] evidence,” Pet.

Br. 28—Gutierrez must demonstrate that the declaratory judgment would “significant[ly] increase . . . the

likelihood that the state prosecutor would grant access

to the requested evidence.” Reed, 598 U.S. at 234. But

Gutierrez already attempted to use the district court’s

declaratory judgment to compel Saenz to hand over the

In his certiorari petition, Gutierrez supplied (at 18-19) an additional argument: the Fifth Circuit erred in distinguishing Reed because in that case the CCA also offered additional state-law grounds

for denying Reed access to DNA testing besides the chain-of-causation requirement he challenged in federal court; yet this Court did

not look to those grounds in assessing standing. But in Reed, Goertz

did not argue that independent state-law grounds not at issue in the

case demonstrated a lack of redressability. See Reed Respondent’s

Br., supra, at 37-39. So the Fifth Circuit correctly invoked,

Pet.App.13, this Court’s longstanding principle that “[q]uestions

which merely lurk in the record, neither brought to the attention of

the court nor ruled upon, are not to be considered as having been so

decided as to constitute precedents.” Cooper Indus., Inc. v. Aviall

Servs., Inc., 543 U.S. 157, 170 (2004) (quoting Webster v Fall, 266

U.S. 507, 511 (1925)).

evidence for testing, and Saenz refused—a decision that

was upheld by the CCA under state law. Any declaratory

judgment issued by the district court, then, cannot affect

Gutierrez’s rights or provide him any effectual relief—

i.e., access to evidence for DNA testing. The proceedings

surrounding Gutierrez’s third motion for DNA testing

have therefore rendered this case moot.

Article III permits federal courts to adjudicate only

“actual, ongoing controversies.” Honig v. Doe, 484 U.S.

305, 317 (1988); see U.S. Const. art. III; see also 28 U.S.C.

§ 2201(a) (explaining that a federal court may only issue

a declaratory judgment in “a case of actual controversy”). Thus, “[t]o qualify as a case fit for federal-court

adjudication, ‘an actual controversy must be extant at all

stages of review, not merely at the time the complaint is

filed.’” Arizonans for Off. Eng. v. Arizona, 520 U.S. 43,

67 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401

(1975)). But “[i]f an intervening circumstance deprives

the plaintiff of a ‘personal stake in the outcome of the

lawsuit,’ at any point during litigation, the action can no

longer proceed and must be dismissed as moot.” Genesis

Healthcare Corp., 569 U.S. at 72 (quoting Lewis v. Cont’l

Bank Corp., 494 U.S. 472, 477-78 (1990)).

“Mootness has been described as ‘the doctrine of

standing set in a time frame.’” Arizonans for Off. Eng.,

520 U.S. at 68 n.22 (quoting U.S. Parole Comm’n v.

Geraghty, 445 U.S. 388, 397 (1980)). It reflects the principle that “[f]ederal courts may not ‘decide questions

that cannot affect the rights of litigants in the case before

them’ or give ‘opinion[s] advising what the law would be

upon a hypothetical set of facts.’” Chafin, 568 U.S. at 172

(quoting Lewis, 494 U.S. at 477). True, “a case ‘becomes

moot only when it is impossible for a court to grant any

effectual relief whatever to the prevailing party.’” Id.

(quoting Knox v. Serv. Emps. Int’l Union, Loc. 1000,

567 U.S. 298, 307 (2012)). Nevertheless, “when the issues

presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome” a court should dismiss the case as moot. Already, LLC v. Nike, Inc., 568

U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S.

478, 481 (1982) (per curiam)).

In this case, an “intervening circumstance deprives”

Gutierrez of a “personal stake in the outcome of this lawsuit,” Genesis Healthcare Corp., 569 U.S. at 72: his unsuccessful effort to use the district court’s declaratory

judgment as a hook for compelling Saenz to turn over the

requested evidence for DNA testing. Gutierrez’s theory

of redressability is built on the notion that issuance of the

district court’s declaratory judgment would redress his

injury by “significant[ly] increas[ing] . . . the likelihood

that” Saenz “would grant access to the requested evidence.” Pet. Br. 28 (quoting Reed, 598 U.S. at 234). But

this theory has now been affirmatively disproven by

Gutierrez’s failed attempt to use the declaratory judgment as the basis for filing a third Chapter 64 motion to

compel Saenz to turn over the evidence. Indeed, the CCA

agreed with Saenz that the district court’s declaratory

judgment did nothing to alter Gutierrez’s ultimate ineligibility for DNA testing under Chapter 64. Consequently, the district court’s declaratory judgment is

purely advisory and “cannot affect the rights of”

Gutierrez to obtain DNA testing. Chafin, 568 U.S. at 172.

This is, therefore, the unique case where it is “impossible” for the district court “to grant any effectual relief”

to Gutierrez. Id. (emphasis added). The CCA’s decision

is the final, binding determination of the effect of the district court’s declaratory judgment on Gutierrez’s right to

DNA testing under Texas law. Saenz has already

indicated that he does not view the declaratory judgment

as changing Gutierrez’s ineligibility for DNA testing under Chapter 64 (a view the CCA agreed with), and

Gutierrez can offer nothing but speculation that Saenz

might someday change his mind on his own volition (not

because of the district court’s declaratory judgment).

Gutierrez cannot use this appeal to belatedly challenge the CCA’s decision holding that he is ineligible for

DNA testing notwithstanding the declaratory judgment,

because he did not seek certiorari review of that decision.

Only this Court may review the decisions of a state’s

highest court, and only through a petition for a writ of

certiorari. 28 U.S.C. § 1257(a); see also Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292

(2005) (explaining that section 1257(a) “vests authority to

review a state court’s judgment solely in this Court”).

Thus, Gutierrez cannot now attack the CCA’s 2024 holding. Nor, under the Rooker-Feldman doctrine, can he

later file a complaint in federal court “inviting district

court review and rejection” of the CCA’s 2024 holding.

Skinner v. Switzer, 562 U.S. 521, 532 (2011). That is because federal district courts have “strictly original” jurisdiction and have no authority to exercise what would

effectively be appellate jurisdiction over state appellate

courts. Rooker v. Fid. Tr. Co., 263 U.S. 413, 416 (1923).

Nor, finally, can Gutierrez repackage an impermissible

appeal of the CCA’s decision as an original Section 1983

action that “in substance would be appellate review of the

state judgment.” Johnson v. De Grandy, 512 U.S. 997,

1005-06 (1994); see also Reed, 598 U.S. at 244 (Thomas,

J., dissenting) (explaining that “a case or controversy is

appellate in nature when the relief-seeking party’s injury

is traceable to the allegedly erroneous action of another

court”).

Because intervening proceedings have demonstrated

that Gutierrez’s request for declaratory relief is now

moot, the Court can also dismiss this appeal on this independent jurisdictional ground.

CONC LU SION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

AARON L. NIELSON

Solicitor General

BRENT WEBSTER

First Assistant Attorney

General

WILLIAM F. COLE

Deputy Solicitor General

Counsel of Record

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

William.Cole@oag.texas.gov

(512) 936-1700

CAMERON FRASER

Assistant Solicitor General

JANUARY 2025

ERIC ABELS

JEFFERSON D. CLENDENIN

Assistant Attorneys General

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.