     Case: 15-20475      Document: 00513482011         Page: 1    Date Filed: 04/27/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-20475                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JACOB ESTRADA,                                                              April 27, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

JOHN FRANCIS HEALEY, JR.; MARK HAROLD HANNA,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:15-CV-92


Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Jacob Estrada (“Estrada”) is a former Texas inmate
who pleaded guilty to possession of a controlled substance and was sentenced
to an eight-year prison term. Estrada alleges that following his conviction, the
district attorney’s office that prosecuted him—the Fort Bend County, Texas,
District Attorney’s Office—learned of exculpatory evidence in his case but
failed to disclose it to him in a timely fashion. The State of Texas ultimately


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 15-20475
overturned Estrada’s conviction in habeas corpus proceedings based on that
exculpatory evidence; this suit under 42 U.S.C. § 1983 followed.
      Citing Brady v. Maryland, 373 U.S. 83 (1963), Estrada claims on appeal
that Defendants-Appellees District Attorney John Healey, Jr. (“Healey”) and
Assistant District Attorney Mark Hanna (“Hanna”) violated his due process
rights by allegedly withholding exculpatory evidence discovered after his
conviction and therefore delaying his release from prison. The district court
dismissed Estrada’s due process claim, concluding, inter alia, that Hanna and
Healey were entitled to qualified immunity. Because the Supreme Court has
declined to extend Brady to the post-conviction context and Estrada fails to
otherwise demonstrate a violation of a clearly established right, we AFFIRM.
                                         I.
      This case concerns the actions of the Fort Bend County, Texas, District
Attorney’s Office in response to revelations of the misconduct of Jonathan
Salvador (“Salvador”), a forensic scientist formerly with the Texas Department
of Public Safety (“DPS”). Salvador was responsible for testing drug samples
from criminal suspects but was caught falsifying samples in early 2012.
Estrada’s 2007 prosecution for possession of a controlled substance was
amongst the cases potentially impacted by Salvador’s misconduct—Salvador
prepared the lab report in Estrada’s case and the parties relied upon this report
during plea bargaining.     The district court’s opinion provides a thorough
recitation of the facts alleged in the complaint; here we briefly recount the
portions relevant to this appeal.
      DPS first became aware that Salvador had falsified test results in a
criminal case in February 2012, and it subsequently notified district attorney’s
offices throughout Texas. DPS stated that it would re-analyze the evidence in
certain cases. Hanna and Healey received this communication but did not
notify Estrada. Later, in April 2012, DPS notified district attorney’s offices
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                                       No. 15-20475
potentially affected by Salvador’s misconduct—including the Fort Bend
County District Attorney’s Office—that: (1) it had found multiple instances of
Salvador’s misconduct; (2) it deemed it “prudent to review his entire body of
work”; and (3) it e-mailed each office a spreadsheet of the criminal defendants
whose cases were affected; this spreadsheet included Estrada’s case. Though
some district attorney’s offices promptly notified the affected individuals, the
Fort Bend County District Attorney’s Office chose not to and instead sought to
have the samples retested. Estrada’s sample, however, was destroyed in July
2012 pursuant to a judicial order. 1
       On July 24, 2012, DPS provided the Fort Bend County District
Attorney’s Office with a report issued by the DPS Office of the Inspector
General. The report explained that Salvador had been fired by DPS for “dry-
labbing”—essentially, Salvador reported finding contraband in criminal cases
without actually conducting an analysis of the samples provided to him. No
one from the Fort Bend County District Attorney’s Office apprised Estrada of
the findings in this report.
       After a March 6, 2013, decision by the Texas Court of Criminal Appeals
(“TCCA”) granted habeas relief to a criminal defendant whose case was
affected by Salvador’s misconduct, defendant Healey contacted Estrada for the
first time and sent two letters on March 14: one to Estrada advising him of the
TCCA opinion, but not explaining that the evidence in his case had been
destroyed, and one to Estrada’s trial counsel allegedly stating that Healey’s
office requested that DPS retest the evidence in Estrada’s case and that they
would forward the results once received. In April 2013, a report from the Texas
Forensic Science Commission publicly condemning Salvador’s actions led to



       1 The order to destroy the evidence in Estrada’s case was issued in October 2011, i.e.,
before the revelations about Salvador’s misconduct came to light.
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                                  No. 15-20475
local media coverage of Salvador’s misconduct. During the following months,
the Fort Bend County District Attorney’s Office allegedly took no action to
notify any affected criminal defendants and would not release the names of
those affected to the local criminal defense bar.      The Fort Bend County
Criminal Defense Association was eventually able to obtain the names of the
affected criminal defendants in July 2013, and in August 2013, Estrada was
provided appointed counsel.
      Estrada filed a petition for a writ of habeas corpus in state court in
October 2013. Healey’s office initially filed an answer opposing habeas relief,
but in December 2013 reversed course and indicated that it would not oppose
relief “in the interest of judicial economy.” In February 2014, however, the
TCCA remanded the case to the trial court due to the State’s lack of specificity
in not opposing habeas relief. After proceedings and fact-finding at the trial
court, in June 2014 the TCCA issued an opinion granting Estrada habeas relief
and overturning his conviction.
      Estrada then filed this § 1983 action against Hanna and Healey in their
individual and official capacities in state court, which they timely removed to
federal court. Estrada alleged that the defendants violated his rights under
the Due Process Clause and Eighth Amendment by failing to disclose the
exculpatory evidence of Salvador’s misconduct in a timely fashion in violation
of Brady v. Maryland, 373 U.S. 83 (1963).        Hanna and Healey moved to
dismiss, asserting Eleventh Amendment immunity as well as absolute and
qualified immunity.    The district court granted the motion, holding that
Supreme Court precedent dictates that there is no prosecutorial duty under
Brady to disclose exculpatory evidence in the post-conviction context.
Consequently, the district court held that Healey and Hanna were entitled to
qualified immunity as to Estrada’s individual-capacity claims, and, in the
alternative, that they were entitled to absolute prosecutorial immunity.
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                                      No. 15-20475
Finally, the court held that, whether construed as an action against the State
of Texas, the Fort Bend County District Attorney’s Office, or Fort Bend County
itself, Estrada’s official capacity claims were not colorable.
      On appeal, Estrada challenges only the district court’s conclusions
regarding Healey’s and Hanna’s entitlement to absolute and qualified
immunity on his due process claim. 2 He argues that Healey and Hanna (1) are
not entitled to qualified immunity because Brady and its progeny establish a
prosecutorial duty to disclose exculpatory evidence that extends to the post-
conviction context and their derivation from this clearly established law was
objectively unreasonable, (2) are not entitled to absolute prosecutorial
immunity because they were not engaging in prosecutorial activity at the time
of the alleged violation, and (3) waived absolute and qualified immunity by
removing the case from state court to federal court.
                                            II.
      Although the facts alleged in the amended complaint are troubling, we
hold that Healey and Hanna are entitled to qualified immunity. We therefore
need not address Estrada’s arguments regarding absolute prosecutorial
immunity.
      The doctrine of qualified immunity protects government officials
performing discretionary functions “from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “The basic steps of our qualified-immunity inquiry
are well-known: a plaintiff seeking to defeat qualified immunity must show:
‘(1) that the official violated a statutory or constitutional right, and (2) that the
right was ‘clearly established’ at the time of the challenged conduct.’” Morgan


      2   Estrada does not raise the dismissal of his Eighth Amendment claim on appeal.
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v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting Ashcroft v. al-
Kidd, 131 S. Ct. 2074, 2080 (2011)). “We may address either prong first.” Cole
v. Carson, 802 F.3d 752, 757 (5th Cir. 2015).
       Estrada fails to establish that Healey or Hanna violated a “clearly
established” right. “To be clearly established, a right must be sufficiently clear
that every reasonable official would have understood that what he is doing
violates that right.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (brackets
and internal quotation marks omitted). “When properly applied, [qualified
immunity] protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” al–Kidd, 131 S. Ct. at 2085 (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)). “We do not require a case directly on point, but existing
precedent must have placed the statutory or constitutional question beyond
debate.” Id. at 2083.
       Estrada cites no case law establishing a due process right to the timely
disclosure of exculpatory evidence discovered after his conviction, i.e.,
Salvador’s misconduct. Instead, he relies exclusively on the rule announced in
Brady that due process requires a prosecutor to disclose material, exculpatory
evidence to a defendant before trial. See Brady, 373 U.S. at 87. His argument
is undercut by the Supreme Court’s decision in District Attorney’s Office for the
Third Judicial District v. Osborne, which explicitly declined to extend Brady’s
pre-trial protections to the post-conviction context. 557 U.S. 52, 68–69 (2009). 3


       3 In his appellate brief, Estrada alludes to Healey and Hanna having knowledge of
Salvador’s misconduct prior to his conviction. However, he does not pursue this argument
on appeal—instead, he states that “[t]he issue in this case is whether a prosecutor has a duty
under Brady to disclose Brady material to a defendant after a conviction.” And, regardless,
even if Hanna and Healey were aware of the exculpatory evidence of Salvador’s misconduct
pre-conviction, Estrada waived his right to raise a Brady violation when he pleaded guilty.
See United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009) (“[A] guilty plea precludes the
defendant from asserting a Brady violation.”); Matthew v. Johnson, 201 F.3d 353, 361–62
(5th Cir. 2000) (“Because a Brady violation is defined in terms of the potential effects of
undisclosed information on a judge’s or jury’s assessment of guilt, it follows that the failure
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                                       No. 15-20475
In noting that “Brady is the wrong framework” for analyzing a criminal
defendant’s liberty interest in obtaining exculpatory evidence in the post-
conviction context, the Court stated that the pertinent inquiry is whether a
State’s post-conviction procedures are “fundamentally inadequate to vindicate
the substantive rights provided.” Id. Estrada has not advanced such a claim,
and, indeed, Estrada’s rights were vindicated when Texas’s post-conviction
process resulted in overturning his conviction and his release from prison.
       Although Estrada takes great pains to distinguish Osborne and press his
due process argument under Brady, he points to no existing precedent
“plac[ing] the . . . constitutional question beyond debate.” 4 al–Kidd, 131 S. Ct.
at 2083. Appellees are therefore entitled to qualified immunity. 5
                                             III.
       The district court’s judgment is AFFIRMED.




of a prosecutor to disclose exculpatory information to an individual waiving his right to trial
is not a constitutional violation.”).
        4 In the portion of his brief discussing absolute immunity, Estrada does cite two cases

analyzing efforts by prosecutors to suppress potentially exculpatory evidence in the post-
conviction context; however, neither case supports Estrada’s qualified immunity argument.
In Houston v. Partee, the Seventh Circuit held that prosecutors who discovered exculpatory
evidence while a criminal appeal was pending were not entitled to absolute immunity but
noted that the prosecutors were entitled to assert qualified immunity on remand. 978 F.2d
362, 368–69 (7th Cir. 1992). In Peterson v. Bernardi, the court held that a prosecutor who
opposed post-conviction DNA evidence testing was entitled to qualified immunity. 719 F.
Supp. 2d 419, 437–38 (D.N.J. 2010).
        5 Estrada also makes the strange argument that Hanna and Healey waived their

entitlement to qualified immunity by removing the case from state court to federal court.
This contention warrants little discussion. In support of his argument, Estrada cites the
Supreme Court’s statement in Lapides v. Board of Regents of University System of Georgia
“that a State’s voluntary appearance in federal court amount[s] to a waiver of its Eleventh
Amendment immunity.” 535 U.S. 613, 619 (2002). Estrada erroneously confuses a state’s
sovereign immunity under the Eleventh Amendment and a government official’s qualified
immunity from individual suit.
                                              7
