Opposition Brief — Roman Flores, Petitioner v. Texas

No. 25-6793

IN THE

Supreme Court of the United States

______________________________

ROMAN FLORES,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

______________________________

On Petition for a Writ of Certiorari to

the Texas Court of Criminal Appeals

______________________________

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

________________________________

KEN PAXTON

Attorney General of Texas

TOMEE M. HEINING

Chief, Criminal Appeals Division

BRENT WEBSTER

First Assistant Attorney General

NATHAN TADEMA*

Assistant Attorney General

*Counsel of Record

JOSH RENO

Deputy Attorney General

for Criminal Justice

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 936-1400

nathan.tadema@oag.texas.gov

Counsel for Respondent

i

QUESTIONS PRESENTED

More than two decades after his conviction became final, Petitioner and

Texas convict Roman Flores claims that his trial counsel violated McCoy v.

Louisiana, 584 U.S. 414 (2018), by presenting a hypothetical during closing

argument where his client would be guilty of a lesser included offense if the

jury believed one of the State’s witnesses beyond a reasonable doubt. The state

court rejected his claim without issuing an opinion but adopted the lower

court’s finding that counsel never conceded Flores’s guilt and his state habeas

application violated the state doctrine of laches. This petition presents the

following questions before certiorari could be granted:

I. Does this Court have Article III jurisdiction to consider this petition when

(1) the state court never ruled on the issues presented, (2) the petition amounts

to a request for an advisory opinion about the breadth of McCoy, and (3) the

state’s denial of his claims pursuant to the doctrine of laches constitutes an

adequate and independent state ground for denying his petition?

II. Given that Flores’s conviction became final in 2001 and McCoy was decided

in 2018, do Flores’s McCoy claims run afoul of the anti-retroactivity principles

described in Teague v. Lane, 489 U.S. 288, 310 (1989)?

III. Does Flores present a compelling reason for granting certiorari when (1)

his petition depends on fact-based error correction, (2) his petition relies on

illusory or irrelevant circuit splits, and (3) the TCCA denied his claims through

an unpublished order that does not establish any precedent?

i

LIST OF PROCEEDINGS

State v. Roman Flores, No. 773453 (179th Dist. Ct., Harris Cnty., Tex. Jan. 31,

2000) (judgment and sentence)

Flores v. State, No. 01-00-00296-CR, 2000 WL 1753148 (Tex. App.—Houston

[1st Dist.] Nov. 30, 2000) (pet. ref’d) (affirming judgment on direct appeal)

Flores v. State, No. PD-0101-01 (Tex. Crim. App. April 18, 2001) (refusing

discretionary review)

Ex parte Flores, No. WR-96,234-01 (Tex. Crim. App. Nov. 13, 2025) (denying

state habeas application without written order “on the findings of the trial

court and on the Court’s independent review of the record”)

ii

TABLE OF CONTENTS

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

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

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

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

INTRODUCTION .......................................................................................................... 1

OPINIONS BELOW ...................................................................................................... 2

JURISDICTION............................................................................................................. 2

CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 2

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

I.

Facts of the Crime ......................................................................................... 3

II. Evidence Regarding Flores’s McCoy Claim ............................................. 4

III. The State Court Proceedings ...................................................................... 4

REASONS FOR DENYING THE WRIT ....................................................................... 6

I. This Case Is An Exceptionally Poor Vehicle For Addressing The

Questions Presented. ................................................................................... 6

A.

This Court lacks jurisdiction because the constitutional issues

raised in the Questions Presented were not decided below. ....... 7

B.

This Court lacks jurisdiction because any opinion the Court

issued would likely be advisory. ....................................................... 10

C.

This Court lacks jurisdiction because the judgment below rests

on an adequate and independent state law ground. .................... 11

II. The Court Should Deny Certiorari Because Flores’s Petition Seeks

the Application of a New Rule in Violation of the Court’s

Antiretroactivity Principles. .................................................................... 15

III. The Court Should Deny Certiorari Because Flores Fails to Identify a

Compelling Reason to Grant It. ............................................................... 18

A.

The Court should deny certiorari because Flores seeks only factbound error correction. ...................................................................... 18

iii

B.

Flores’s suggested split is illusory and unworthy of review. ..... 21

C.

The TCCA denied Flores’s state habeas application in an

unpublished order, so it does not present a jurisdictional

conflict. ................................................................................................... 23

CONCLUSION............................................................................................................. 24

iv

TABLE OF AUTHORITIES

Cases

Adams v. Robertson, 520 U.S. 83 (1997) ......................................................... 7, 8

Ancient Egyptian Arabic Order of Nobles of the Mystic Shrine v. Michaux, 279

U.S. 737 (1929) ............................................................................................... 20

Beard v. Kindler, 558 U.S. 53 (2009) .......................................................... 11, 12

Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102 (1977) ...................... 8

Brown v. State, 866 S.W.2d 675 (Tex. App.—Houston [1st] 1993) ................. 22

Butler v. McKeller, 494 U.S. 407 (1990)............................................................ 16

Camreta v. Green, 563 U.S. 692 (2011)........................................................... 8, 9

Cardinale v. Louisiana, 394 U.S. 437 (1969) ................................................... 10

Chafin v. Chafin, 568 U.S. 165 (2013) .............................................................. 11

Christian v. Thomas, 982 F.3d 1215 (9th Cir. 2020) ....................................... 17

City of Canton v. Harris, 489 U.S. 378 (1989) .................................................... 9

Coleman v. Thompson, 501 U.S. 722 (1991) ..................................................... 12

Edwards v. Vannoy, 593 U.S. 255 (2021) ......................................................... 16

Ex parte Brown, 2022 WL 215416 (Tex. Crim. App. Jun 15, 2022) ................ 22

Ex parte Hill, 632 S.W.3d 547 (Tex. Crim. App. 2021) .................................... 13

Ex parte Hill, 711 S.W.3d 221 (Tex. Crim. App. 2025) .................................... 13

Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013) .................................. 13

Flast v. Cohen, 392 U.S. 83 (1968) .................................................................... 11

Flores v. State, No. 01-00-00296-CR, 2000 WL 1753148 (Tex. App.—Houston

[1st Dist.] Nov. 30, 2000) ............................................................................. 3, 4

Gannett Co. v. DePasquale, 443 U.S. 368 (1979) ............................................. 14

Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271 (1949) .......... 20

Hernandez v. New York, 500 U.S. 352 (1991) .................................................. 20

v

Illinois v. Gates, 462 U.S. 213 (1983)............................................................ 9, 10

Jones v. Barnes, 463 U.S. 745 (1983) ................................................................ 13

Kelley v. Zoeller, 800 F.3d 318 (7th Cir. 2015) ................................................. 15

Lambrix v. Singletary, 520 U.S. 518 (1997) ..................................................... 16

Mallett v. Missouri, 494 U.S. 1009 (1990) ........................................................ 18

O’Dell v. Netherland, 521 U.S. 151 (1997)........................................................ 16

Ross v. Moffitt, 417 U.S. 600 (1974) .................................................................. 19

Smith v. Addison, 373 F. App’x 886 (10th Cir. Apr. 20, 2010) ........................ 15

Smith v. Stein, 982 F.3d 229 (4th Cir. 2020) .................................................... 17

Stewart v. Smith, 536 U.S. 856 (2002).............................................................. 12

Teague v. Lane, 489 U.S. 288 (1989) .......................................................... 15, 17

TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) .......................................... 10

Truesdale v. Aiken, 480 U.S. 527 (1987) ........................................................... 17

Walker v. Martin, 562 U.S. 307 (2011) ....................................................... 12, 15

Yee v. City of Escondido, 503 U.S. 519 (1992) ................................................ 2, 8

Statutes

Tex. Code Crim. Proc. Article 11.07 .................................................................. 12

Rules

Sup. Ct. R. 10 ..................................................................................................... 19

Supreme Court Rule 10 ..................................................................................... 23

Tex. R. App. P. 77.3...................................................................................... 22, 24

Treatises

Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court

Practice § 5.12(c)(3) (11th ed. 2019) .............................................................. 21

vi

INTRODUCTION

Petitioner Roman Flores was tried and convicted in 2000 for the capital

murder of twenty-year-old Ronnie Fisk during an armed robbery and was

sentenced to life in prison. He appealed, but his conviction was affirmed in

2001, so his conviction became final twenty-five years ago.

He now contends decades later that his trial counsel violated his Sixth

Amendment rights during his 2000 trial—in violation of the constitutional

protections this Court first recognized in 2018, in McCoy v. Louisiana, 584 U.S.

414 (2018). He specifically contends that his attorney “conceded guilt” at trial

by stating during argument, “I guess if you believe [the State’s key witness]

beyond a reasonable doubt then you could convict this man of aggravated

robbery.”

There are six reasons why his petition is unworthy of this Court’s

attention: (1) He fails to invoke Article III jurisdiction because the state court

never decided the abstract questions presented in his petition; (2) He cannot

seek retroactive application of McCoy to his 2001 conviction; (3) The state court

never published an opinion so he cannot satisfy Supreme Court Rule 10’s

“compelling reason” prerequisite for granting certiorari; (4) The untimely

nature of his state habeas application provides an adequate and independent

state ground for denying his petition; (5) Because his petition depends on

1

rebutting the state court’s factual determination, he fails to provide a

compelling reason for granting certiorari; and (6) He fails to identify a relevant

jurisdictional split to warrant this Court’s intervention.

The State discusses each of these reasons in detail below and each

argument independently establishes why certiorari review should be denied.

OPINIONS BELOW

The TCCA’s order denying Flores’s state habeas application (located at

Pet. App. at 1) is not reported. The state habeas trial court’s recommended

findings and conclusions (see Pet. App. at 8–57) is also unreported.

JURISDICTION

The state courts did not decide the sub-issues contained within Flores’s

Questions Presented. The Court has indicated that this failing may present a

jurisdictional bar to review. See, e.g., Yee v. City of Escondido, 503 U.S. 519,

533 (1992). If jurisdiction exists, the basis is 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Question Presented involves application of the Sixth Amendment

right to counsel.

2

STATEMENT OF THE CASE

I.

Facts of the Crime

The state appellate court recounted the essential facts of the crime as

follows:

Ronnie Fisk, the complainant, and two friends, Joe Osuna

and Cesar Martinez, were parked at a gas station. While returning

from the restroom, Osuna saw appellant and Freddie Motilla

approach Fisk, who was standing by the car’s trunk. Appellant told

Motilla to “get that guy right there by the trunk.” Motilla pulled a

gun from his jacket, told Fisk and Martinez to “get on the ground,”

and demanded the keys. Meanwhile, appellant jumped in the

driver's side of Fisk’s car and appeared to be looking for something.

Osuna and Martinez ran away. Less than a minute later,

they heard several gunshots, followed by Fisk’s crying out in pain.

When they looked back, they saw Fisk fall on his face. Martinez

and Osuna ran back to the car just before appellant and Motilla,

who had apparently stepped away for a moment, came back

together from around the corner of the station’s car wash. While

Motilla again aimed the gun at them and demanded the keys,

Martinez and Osuna saw appellant turn Fisk over, kick him, and

search his pockets and neck area. Appellant and Motilla ran away

together. Another eyewitness, Rosie Montalvo, testified she had

seen appellant and another man screaming at someone; the other

man with appellant shot Fisk; and appellant walked back to the

victim, “tapped” him with his feet, and put his hand in Fisk’s

pockets.

Flores v. State, No. 01-00-00296-CR, 2000 WL 1753148, at *1 (Tex. App.—

Houston [1st Dist.] Nov. 30, 2000) (pet. ref’d).

3

II.

Evidence Regarding Flores’s McCoy Claim

Flores predicates his McCoy claim on his attorney’s closing argument,

which reads in pertinent part as follows:

The real question becomes, if anything, what has the State proved

you? I guess they could make a case for an aggravated robbery. If

you believe Rosie Montalvo, that out of the clear blue she says this

man, identifies him, then at some point she looks up, she hears

gunshots, she’s nervous, looking for her friends, and at some

instance she sees him go over to Ronnie Fisk’s body and put his

hands on his pockets. I guess if you believe that beyond a

reasonable doubt then you could convict this man of aggravated

robbery. But I would submit to you that he is not guilty of capital

murder. He is darn sure not guilty of having to be reasonably sure

that Freddie Motilla—[interrupted by sustained objection]

Resp’t App. at 7–8; 1 Pet. Cert. at 7 (quoting uncontextualized excerpts of the

above text). Following this argument, Flores’s attorney further encouraged the

jury to believe Flores’s testimony over the State’s witnesses and repeatedly

emphasized the State’s burden of proof. Pet. App. at 39–40.

III.

The State Court Proceedings

Flores was convicted and sentenced to life in prison on January 31, 2000,

for the capital murder of Ronnie Fisk. Resp’t App. at 1–2; Pet. App. at 8. The

conviction and sentence were affirmed on direct appeal in November of 2000.

Pet. App. at 9; see Flores, 2000 WL 1753148, at *2. He sought discretionary

1

“Resp’t App.” refers to the Appendix attached to this brief in opposition.

4

review with the Texas Court of Criminal Appeals (TCCA), but it was refused

in April of 2001. Pet. Cert. at 8.

Twenty-three years passed.

Then, Flores filed a state habeas application in June of 2024. Pet. App.

at 9; Resp’t App. at 9–28 (amended state habeas application). He claimed a

McCoy violation among other unrelated claims. Pet. App. at 9; Resp’t App. at

16–17.

The state habeas trial court entered findings recommending the denial

of Flores’s claims in March of 2025. Pet. App. at 8–57. In those findings, the

trial court rejected his McCoy claim on the sole basis that Flores “fails to prove

[his trial counsel] admitted or conceded applicant’s guilt.” Id. at 40. The court

also concluded that, due to the 23-year delay in presenting his claims and the

resulting prejudice to the State, Flores’s entire application should be denied

under Texas’s doctrine of laches. Id. at 55.

The TCCA subsequently “denied without written order the application

for writ of habeas corpus on the findings of the trial court and on the Court’s

independent review of the record” in November of 2025. Id. at 1.

Flores then filed this petition for a writ of certiorari to challenge the

TCCA’s order rejecting his McCoy claim.

5

REASONS FOR DENYING THE WRIT

I.

This Case Is An Exceptionally Poor Vehicle For Addressing The

Questions Presented.

Flores raises multiple abstract constitutional issues for this Court to

decide. He suggests that this appeal “presents an exceptionally clean” vehicle

to clarify “a range of closely related issues that have divided [the] lower courts”

since McCoy was decided. Pet. Cert. at 25–26. For example, he asks the Court

to resolve how and whether McCoy’s protection:

(1) applies to concessions involving only an element of the charged

offense (see Pet. Cert. at 12–15),

(2) applies to concessions of lesser-included or predicate offenses (see Pet.

Cert. at 15–17),

(3) depends on different levels of “opprobrium” or stigma associated with

the concession (see Pet. Cert. at 17–19),

(4) applies outside of a death penalty context (see Pet. Cert. at 19–22),

(5) depends on the manner and degree of the defendant’s proclamation

of innocence (see Pet. Cert. at 22–25),

(6) applies to conditional or hypothetical concessions (see Pet. Cert. at

27–32).

Pet. Cert. at i–ii. But those questions were not decided by the TCCA below.

Indeed, when it responded to Flores’s state habeas application below, the State

didn’t urge the TCCA to reject his McCoy claim for any of the reasons

implicated by the Questions Presented. See generally, Resp’t App. at 53–58.

6

Instead, the TCCA denied Flores’s entire state habeas application in a

summary, single-sentence, postcard order on the findings of the state habeas

trial court, and on the TCCA’s own review of the record. Pet. App. at 1. In turn,

the trial court’s findings alternatively rejected Flores’s McCoy claim on its

merits, 2 on the sole basis that—as a matter of historic fact—there was no

concession at all. Id. at 38–40 (¶¶196–204). Even under the most generous

interpretation of this petition, the adopted findings only addressed whether

Flores’s trial counsel made a hypothetical concession of guilt, which at most

could arguably implicate the sixth issue from the above list of issues. Id.

A.

This Court lacks jurisdiction because the constitutional

issues raised in the Questions Presented were not decided

below.

With “very rare exceptions,” the Court has adhered to the rule that it

will not consider a petitioner’s federal claim unless it was either addressed by,

or properly presented to, the state court that rendered the decision the Court

has been asked to review. Adams v. Robertson, 520 U.S. 83, 86 (1997). “When

the highest state court is silent on a federal question” first raised in a certiorari

In addition to rejecting Flores’s McCoy claim on its merits, the TCCA also

procedurally barred Flores’s entire habeas application—and all of its claims—under

the equitable doctrine of laches. Pet. App. at 48–49 (¶¶262–73), 55 (¶¶ 51–55); see id.

at 1 (showing that TCCA incorporated trial court’s findings). The State will

separately address the laches default in section II, below.

2

7

petition, the Court will “assume that the issue was not properly presented,”

and the petitioner “bears the burden of defeating this assumption” by showing

the state court had “a fair opportunity” to address the federal questions raised

to the Court here. Id. at 86–87. And while this Court has not yet resolved

whether the failure to properly raise a constitutional issue in the state courts

is jurisdictional, it might be. See Yee, 503 U.S. at 533.

Where, as here, the State didn’t ask the TCCA to resolve those questions

against Flores, there are serious concerns with the justiciability of this appeal.

See Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 138 (1977)

(“[B]ecause issues of ripeness involve, at least in part, the existence of a live

‘Case or Controversy,’ we cannot rely upon concessions of the parties and must

determine whether the issues are ripe for decision in the ‘Case or Controversy’

sense.”). It is impossible to know whether Flores might ever benefit from the

Court’s resolution of the Questions Presented in his favor, or even whether the

TCCA’s summary denial was constitutionally erroneous. This is fatal because

Article III of the Constitution invests the Court with “authority to adjudicate

legal disputes only in the context of ‘Cases’ or ‘Controversies.’” Camreta v.

Green, 563 U.S. 692, 701 (2011). To enforce this limitation, a litigant must

demonstrate a “personal stake” in the suit by satisfying three conditions: That

he has “suffered an injury in fact” that is caused by “the conduct complained

8

of” and that “will be redressed by a favorable decision.” Id. Flores fails to satisfy

those conditions. In sum, because Flores never raised the sub-issues identified

above—and because the TCCA was silent on those issues in its postcard

order—the Court may lack jurisdiction to consider the Questions Presented.

Id.

Finally, even if the principles in Adams and Yee are merely prudential,

there are still good reasons to deny certiorari. 3 Flores asks the Court to

categorically resolve numerous important constitutional questions left open in

McCoy and to pronounce their application across an enormous range of

hypothetical and unrelated cases. Where such wide-ranging issues are

involved “there are strong reasons to adhere scrupulously to the customary

limitations on [the Court’s] discretion.” Illinois v. Gates, 462 U.S. 213, 224

(1983). Doing so “discourages the framing of broad rules, seemingly sensible on

one set of facts, which may prove ill-considered in other circumstances.” Id.

The failure here also informs the Court’s decision to grant certiorari. See City

of Canton v. Harris, 489 U.S. 378, 383–84 (1989) (“[T]he decision to grant certiorari

represents a commitment of scarce judicial resources with a view to deciding the

merits . . . of the questions presented in the petition.”). The State does not waive this

defect and, instead, cites the defect and urges this Court to deny review for this

reason. See id. at 384 (“Nonjurisdictional defects of this sort should be brought to our

attention no later than in respondent’s brief in opposition to the petition for certiorari;

if not, we consider it within our discretion to deem the defect waived.”).

3

9

Scrupulous adherence to this prudential rule also helps in other ways. For

example, the rule helps to ensure the adequacy of the appellate record in this

Court because, if the state court addressed the federal question, then it is likely

to have compiled the record with the constitutional issue in mind. Cardinale v.

Louisiana, 394 U.S. 437, 439 (1969). Moreover, requiring a petitioner to raise

the federal question below invests the state court with an opportunity to “rest

its decision [against the petitioner] on an adequate and independent state

ground[,]” and to thereby render the Court’s review of the federal question

unnecessary. See Gates, 462 U.S. at 222.

B.

This Court lacks jurisdiction because any opinion the

Court issued would likely be advisory.

Flores’s petition amounts to a hypothetical discussion about the contours

of McCoy and boils down to a request for an advisory opinion concerning these

issues. The fatally abstract nature of the Questions Presented in relation to

the TCCA’s judgment is apparent throughout Flores’s certiorari petition. See

Pet. Cert. at 10–33. For instance, Flores hardly mentions the TCAA’s legal

analysis and instead devotes nearly all his argument to documenting an

abstract “split” regarding McCoy’s potential application to various theoretical

facts, see id., which is reason alone to deny certiorari. See, e.g., TransUnion

LLC v. Ramirez, 594 U.S. 413, 423 (2021) (“Under Article III, federal courts do

10

not adjudicate hypothetical or abstract disputes. Federal courts do not possess

a roving commission to publicly opine on every legal question.”); see also Chafin

v. Chafin, 568 U.S. 165, 172 (2013) (“Federal courts may not decide questions

that cannot affect the rights of litigants in the case before them or give opinions

advising what the law would be upon a hypothetical set of facts.”) (quotation

marks and citation omitted); Flast v. Cohen, 392 U.S. 83, 95 (1968) (no

justiciable controversy is presented “when the parties are asking for an

advisory opinion”).

C.

This Court lacks jurisdiction because the judgment below

rests on an adequate and independent state law ground.

In addition to rejecting the merits of his claims, the TCCA also

procedurally barred Flores’s habeas application—and all its claims—under

Texas’ equitable doctrine of laches. Pet. App. at 48–49 (¶¶262–73), 55 (¶¶ 51–

55); see id. at 1 (showing that TCCA incorporated trial court’s findings). This

determination presents an independent and adequate state basis for denying

relief which makes this case an inappropriate vehicle for certiorari.

“A federal habeas court will not review a claim rejected by a state court

‘if the decision of [the state] court rests on a state law ground that is

independent of the federal question and adequate to support the judgment.’”

Beard v. Kindler, 558 U.S. 53, 55 (2009) (quoting Coleman v. Thompson, 501

11

U.S. 722, 729 (1991)). 4 The state-law ground may be a substantive rule

dispositive of the case or a procedural barrier to adjudication of the claim on

the merits. See Walker v. Martin, 562 U.S. 307, 315 (2011). To qualify as an

“adequate” procedural ground, a state rule must be “firmly established and

regularly followed.” Id. at 316 (quoting Kindler, 558 U.S. at 60). Finally, a

discretionary state procedural rule “can serve as an adequate ground to bar

federal habeas review.” Id.

Here, there is a state law ground for denying relief that is independent

of the federal questions before this court. Although Texas does not provide a

statute of limitations for state habeas applications challenging non-capital

felony convictions, see Tex. Code Crim. Proc. Article 11.07, Texas’s laches

doctrine can, nevertheless, bar habeas relief when the State is harmed due to

an applicant’s unreasonable delay in pursuing a habeas claim. Ex parte Perez,

To be sure, Coleman involved this Court’s appellate review of a state conviction

in federal habeas corpus; hence, the Court’s jurisdiction there flowed from 28 U.S.C.

§ 1254(1), and not from § 1257(a). However, the “adequate and independent” stateground doctrine exists for purposes of both the Court’s jurisdiction under § 1257, and

for federal habeas appeals under § 1254(1), and the Court often interchanges the

concepts. See Stewart v. Smith, 536 U.S. 856, 860 (2002) (“[A]ssuming that the same

standard governs the scope of a district court’s power to grant federal habeas relief

as governs this Court’s jurisdiction to review a state-court judgment on direct review

. . . .”); Coleman, 501 U.S. at 729 (“We have applied the independent and adequate

state ground doctrine not only in our own review of state court judgments, but in

deciding whether federal district courts should address the claims of state prisoners

in habeas corpus actions.”).

4

12

398 S.W.3d 206, 215 (Tex. Crim. App. 2013). “The purpose of the laches

doctrine is ‘to consider whether an applicant has slept on his rights and, if he

has, how that has affected the State, and whether, in light of the delay, it is

fair and just to grant him relief.’” Ex parte Hill, 632 S.W.3d 547, 551 (Tex.

Crim. App. 2021) (quoting Perez, 398 S.W.3d at 218–19). If laches applies, the

TCCA “will not consider an applicant’s claims and will deny relief.” Id. Finally,

“the doctrine of laches is a theory which” the Texas courts “may, and should,

employ” when determining “whether to grant relief in any given [Article] 11.07

case.” Ex parte Hill, 711 S.W.3d 221, 225 (Tex. Crim. App. 2025) (emphasis and

alteration in original).

In this case, the TCCA concluded that Flores’s tardy state habeas

application warranted the application of the doctrine laches. See Pet. App. at

48–49 (¶¶262–73), 55 (¶¶ 51–55). For example, due to the passage of twentythree years 5 before Flores filed his state habeas application, the TCCA found

Although “only” six years passed between the issuance of McCoy and Flores’s

filing of his state habeas application, the doctrine of laches still applies in this case,

especially considering the avenues for pursuing Flores’s claims prior to McCoy. If he

truly believed his attorney conceded guilt against his wishes, he could have pursued

his claim through a Strickland ineffective-assistance-of-counsel claim or one of

McCoy’s precursor precedents. See Jones v. Barnes, 463 U.S. 745, 751 (1983) (“[T]he

accused has the ultimate authority to make certain fundamental decisions regarding

the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf,

5

13

that defense counsel no longer has access to his defense file, and could no

longer recall “specific aspects of the applicant’s representation including

conversations with co-defendant Motilla, details of the entire testimony

preparation with the applicant, defense trial witnesses, and his trial strategy.”

Pet. App. at 49 (¶¶267–68). So too, the TCCA found the defense investigator,

the codefendant’s attorney, and a State’s witness (i.e., the complainant’s

mother) were all deceased. Id. (¶¶269, 271). And finally, that court found

Flores’s delay in pursuing his claims prejudiced the State’s ability to respond

to his claims and would impair the State’s ability to retry the case. Id. (¶273).

The TCCA adopted the trial court’s conclusions that “due to the applicant’s 23year delay in filing this application for habeas corpus relief, the State is

prejudiced in its ability to respond to the applicant’s claim,” and “[t]he

Applicant’s claims should be denied under the equitable doctrine of laches.”

Pet. App’x. at 55 (¶55).

Since the passage of time in this case hinders the State’s ability to retry

this case or investigate any factual questions arising out of Flores’s claims, this

case presents a poor candidate for certiorari. Moreover, the denial of Flores’s

or take an appeal”); Gannett Co. v. DePasquale, 443 U.S. 368, 382, n.10 (1979) (the

Sixth Amendment “contemplat[es] a norm in which the accused, and not a lawyer, is

master of his own defense”).

14

claims based on the laches doctrine constitutes an independent and adequate

state ground for rejecting his petition. See Walker, 562 U.S. at 317 (holding

California’s discretionary time rule is an independent and adequate state bar

preventing federal habeas review); Kelley v. Zoeller, 800 F.3d 318, 327 (7th Cir.

2015) (claim barred by laches is an independent and adequate state law ground

preventing federal habeas review); Smith v. Addison, 373 F. App’x 886, 2010

WL 1544366, at *2 (10th Cir. Apr. 20, 2010) (same).

II.

The Court Should Deny Certiorari Because Flores’s Petition

Seeks the Application of a New Rule in Violation of the Court’s

Anti-retroactivity Principles.

Flores’s petition asks this Court to apply McCoy to his conviction even

though this Court decided McCoy seventeen years after his conviction became

final. But Teague v. Lane generally prohibits the retroactive application of a

new rule of constitutional law, so his petition should be denied. 489 U.S. 288,

310 (1989).

Habeas corpus is generally not an appropriate avenue for the creation or

application of new constitutional rights. Id. Thus, with few exceptions, new

constitutional rules do not apply to convictions finalized before the new rule

was announced. Id. This principle of non-retroactivity respects comity “by

validat[ing] reasonable, good faith interpretations of existing precedents made

by state courts even though they are shown to be contrary to later decisions.”

15

Butler v. McKeller, 494 U.S. 407, 414 (1990). The Teague inquiry includes three

steps. First, the date on which the petitioner’s conviction became final must be

determined. O’Dell v. Netherland, 521 U.S. 151, 156–57 (1997). Second, the

habeas court determines whether a state court addressing the petitioner’s

claim at the time the conviction became final would have felt compelled to

conclude the rule he sought was constitutionally required. Id. If not, then the

rule is new. Id. If the rule is new, the court must determine whether it falls

within one of two exceptions: (1) new rules forbidding criminal punishment of

certain primary conduct and rules prohibiting a certain category of

punishment for a class of defendants because of their status or offense; or (2)

watershed rules of criminal procedure implicating the fundamental fairness

and accuracy of the criminal proceeding. Id. However, this Court later

abolished Teague’s second exception. See Edwards v. Vannoy, 593 U.S. 255,

272 (2021) (“New procedural rules do not apply retroactively on federal

collateral review.”).

Flores’s conviction became final in early 2001, when his time for filing a

petition for certiorari in this Court expired. See Lambrix v. Singletary, 520 U.S.

518, 527 (1997). And Flores urges this Court to review his conviction under

McCoy v. Louisiana, which was decided in 2018. Given his reliance on

precedent decided seventeen years after his final conviction date, Flores’s

16

petition depends on the retroactive application of a new constitutional rule. See

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

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

final.”).

Since Flores invites retroactive application of a new constitutional rule,

this Court must consider whether such an application of McCoy may be allowed

under Teague’s single remaining section. But McCoy plainly does not involve a

new rule forbidding criminal punishment or prohibiting a category of

punishment. Accordingly, both circuit courts which considered retroactive

application of McCoy declined to do so. See Smith v. Stein, 982 F.3d 229, 234,

235 (4th Cir. 2020) (“McCoy is not retroactively applicable on collateral

review”); Christian v. Thomas, 982 F.3d 1215, 1225 (9th Cir. 2020) (“We

therefore conclude that the Supreme Court has not made McCoy v. Louisiana

retroactive to cases on collateral review.”).

Finally, to the extent Flores might rejoin that Teague is explicitly limited

to constitutional rules that are first recognized in federal habeas corpus, he

would be incorrect. It appears that this Court has not yet analyzed the

procedural gap between the finality of a state conviction and the onset of

federal habeas corpus, at least with respect to the Court’s non-retroactivity

analysis. See Truesdale v. Aiken, 480 U.S. 527, 529–30 (1987) (Powell, J.,

17

dissenting) (“[T]he Court [has not] decided whether the same retroactivity

rules should apply to state post-conviction proceedings . . . [as] apply to federal

habeas corpus proceedings.”); see also Mallett v. Missouri, 494 U.S. 1009, 1012

(1990) (Marshall, J., dissenting from denial of certiorari) (questioning whether

Teague applies to Court’s review of state postconviction proceedings).

Despite the seventeen-year gap between his final conviction date and the

issuance of McCoy, Flores’s petition seems oblivious to applicability of the

Teague and retroactivity concerns and does not address the issue. See

generally, Pet. Cert. Given his failure to address Teague and the glaring

retroactivity problems with his McCoy claims, Flores’s petition should be

denied.

III.

The Court Should Deny Certiorari Because Flores Fails to

Identify a Compelling Reason to Grant It.

Flores fails to identify any compelling reasons to grant certiorari given

that: (1) his argument is entirely and unabashedly factbound; (2) the suggested

split is illusory; and (3) the TCCA’s order denying his McCoy claim is

unpublished.

A.

The Court should deny certiorari because Flores seeks only

fact-bound error correction.

In rejecting Flores’s McCoy claim, the TCCA relied on a determination

of historic fact that functionally nullified McCoy’s application in this case.

18

Specifically, the TCCA adopted findings rejecting Flores’s McCoy claim

because: “[Flores] fails to prove [defense counsel] admitted or conceded

[Flores]’s guilt.” Pet. App. at 40 (¶203). In reaching this conclusion, the TCCA

specifically reviewed the entire context of defense counsel’s supposed

“admission” to the jury. Id. at 38–40 (¶¶199–203). The TCCA also recognized

that defense counsel attacked the State’s key witness and argued that the jury

should believe Flores’s testimony 6 over the witness. Id. at 39 (¶201). It also

emphasized defense counsel’s “repeated emphasis on the State’s burden of

proof.” Id. at 39–40 (¶202). Only after reviewing the full context of defense

counsel’s statements, the state courts rejected Flores’s factual premise that

defense counsel admitted or conceded his guilt. Id. at 40.

To squarely rule on the issues in this case, the Court would have to

reweigh the ultimate findings of fact made by the lower courts. But this Court

rarely grants certiorari “when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated rule of law.” Sup. Ct. R. 10;

Ross v. Moffitt, 417 U.S. 600, 616–17 (1974) (Renquist, J.) (“This Court’s review

. . . is discretionary and depends on numerous factors other than the perceived

Flores “told the jury that he did not commit, assist in, or participate in any

robbery or murder.” Pet. Cert. at 6.

6

19

correctness of the judgment we are asked to review.”); see also Hernandez v.

New York, 500 U.S. 352, 366 (1991) (“Our cases have indicated that, in the

absence of exceptional circumstances, we would defer to state-court factual

findings, even when those findings relate to a constitutional issue.”). There are

strong reasons to apply this limit here because the relevant findings have “fair

support” in the record. See Ancient Egyptian Arabic Order of Nobles of the

Mystic Shrine v. Michaux, 279 U.S. 737, 745 (1929) (“[I]t is our province to

inquire, not only whether the right was denied in direct terms, but also

whether it was denied in substance and effect by interposing a nonfederal

ground of decision having no fair support.”); see also Hernandez, 500 U.S. at

369 (accepting state court fact finding because supported by one of two

permissible views of the evidence).

In sum, without any evidence suggesting an exceptional error by the

state courts, Flores’s petition should be denied because it depends on

overturning the factual findings of the state trial court and the TCCA. See

Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275 (1949) (“A

court of law, such as this Court is, rather than a court for correction of errors

in fact finding, cannot undertake to review concurrent findings of fact by two

courts below in the absence of a very obvious and exceptional showing of

error.”); see also Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb,

20

Supreme

Court

Practice

§

5.12(c)(3),

p.

5–45

(11th

ed.

2019)

(“[E]rror correction . . . is outside the mainstream of the Court’s functions and

. . . not among the ‘compelling reasons’ . . . that govern the grant of certiorari”).

B.

Flores’s suggested split is illusory and unworthy of review.

Flores asserts that the state court’s treatment of defense counsel’s

statement as a mere hypothetical “exemplifies one side of a nationwide split.”

Pet. Cert. at 31. But his supposed split topples awkwardly upon inspection. To

begin, Flores’s McCoy claim derives from an out-of-context hypothetical posed

by defense counsel during closing argument which reads as follows: “I guess if

you believe [Rosie Montalvo’s testimony] beyond a reasonable doubt then you

could convict this man of aggravated robbery.” Pet. App. at 39. The state court

found this statement inadequate to “prove [defense counsel] admitted or

conceded the applicant’s guilt.” Id. at 40.

Flores claims such a hypothetical concession of guilt exemplifies a

nationwide split, but he does not cite a single case from a competing

jurisdiction where a purely hypothetical admission of guilt (e.g. “If you believe

X, then my client is guilty”) led to a McCoy violation. See generally, Pet. Cert.

At most, Flores suggests in a footnote that the TCCA in one of its own

cases recognized a McCoy violation based on an “almost identical” hypothetical

concession. Pet. Cert. at 9, n.3 (citing Ex parte Brown, No. WR-25,632-03, 2022

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WL 215416 (Tex. Crim. App. Jun 15, 2022)). But there are three problems with

this example. First, it is a TCCA case and therefore does not suggest a

jurisdictional split such as those recognized in Rule 10. Second, the case is

unpublished and is not precedent. See Tex. R. App. P. 77.3. And third, while

defense counsel in that case made a hypothetical concession, he also made

several explicit concessions and inculpatory statements during closing

argument. See Brown v. State, 866 S.W.2d 675, 680 (Tex. App.—Houston [1st]

1993, pet. ref’d) (defense counsel stating in a delivery-of-controlled-substance

trial, e.g, “There’s no doubt that that person, the officer who was masquerading

as a dope head, was assisted in his quest to buy some dope by [my client].”).

Flores’s remaining arguments variously describe how the unique and

parochial facts attendant to each respective appeal interact with the abstract

and hypothetical legal ambiguities within McCoy’s constitutional framework,

which had largely been identified by Justice Alito in his dissenting opinion and

by Justice Gorsuch during oral argument. Pet. Cert. at 10–25. Critically, Flores

fails to show that any other courts would have reached a different result than

the TCCA did here. In other words, any supposed “conflict” or “confusion”

suggested in the cited opinions results from applying the detailed facts of each

appeal to McCoy’s well-known legal uncertainties. But none of those issues

arose in this case. None were addressed by the TCCA. The only issue this case

22

turned on is whether there was a concession at all. And Flores fails to identify

a circuit split that would apply to that question. This petition must be denied.

C.

The TCCA denied Flores’s state habeas application in an

unpublished order, so it does not present a jurisdictional

conflict.

The TCCA decided Flores’s state habeas application without issuing any

opinion, order, or binding precedent. Pet. Appx. at 1. Since this case sets no

precedent, this case presents no compelling reason to grant certiorari as

required by Rule 10 of the Rules of the Supreme Court.

Rule 10 provides that review on a writ of certiorari is not a matter of

right but of judicial discretion, and it will be granted only for “compelling

reasons.” Rule 10 identifies non-exhaustive examples of compelling reasons,

which predominantly involve a court deciding “an important federal question”

in a way that conflicts with another federal court or state court of last resort

or deciding a case in a way that presents an extraordinary departure from

accepted and usual course of judicial proceedings.

But here, the TCCA denied his petition “without written order” so it did

not opine on an important federal question or otherwise decide the issue in an

unusual way. Pet. Appx. at 1. At most, it adopted the trial court’s finding that

Flores “fails to prove [his trial counsel] admitted or conceded applicant’s guilt.”

Id. at 40. But that finding did not decide an important federal question, is

23

consistent with the holding in McCoy, and the adoption of that finding without

a written opinion establishes no precedent. See Tex. R. App. P. 77.3

(“Unpublished opinions have no precedential value and must not be cited as

authority by counsel or by a court.”).

Since this case did not establish any precedent, it does not create a

conflict between the TCCA and any other court as contemplated in Rule 10.

Similarly, the adoption of the trial court’s finding did not resolve any important

federal questions about the application of McCoy. Without any jurisdictional

conflicts or remarkable legal precedent, this case presents no compelling

reasons to grant certiorari.

CONCLUSION

Flores’s petition for a writ of certiorari should be denied.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

JOSH RENO

Deputy Attorney General

for Criminal Justice

TOMEE M. HEINING

Chief, Criminal Appeals Division

24

s/ Nathan Tadema

NATHAN TADEMA

Assistant Attorney General

Texas Bar No. 24044285

Counsel of Record

Post Office Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1400

nathan.tadema@oag.texas.gov

Counsel for Respondent

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