                     REVISED AUGUST 21, 2013

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit

                                                                  FILED
                                 No. 07-70031                  August 13, 2013

                                                                Lyle W. Cayce
                                                                     Clerk
NELSON GONGORA,

                                           Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                           Respondent - Appellee



                Appeal from the United States District Court
                     for the Northern District of Texas


                ON PETITION FOR REHEARING EN BANC


Before STEWART, Chief Judge, HIGGINBOTHAM and OWEN, Circuit Judges.
PER CURIAM:
      The court having been polled at the request of one of the members of the
court and a majority of the judges who are in regular active service and not
disqualified not having voted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the
Petition for Rehearing En Banc is DENIED.
      Voting for en banc rehearing were: Judge E. Grady Jolly, Judge Edith H.
Jones, Judge Jerry E. Smith, Judge Edith B. Clement, Judge Priscilla R. Owen,
                                No. 07-70031

and Judge Jennifer W. Elrod. Voting against en banc rehearing were: Chief
Judge Carl E. Stewart, Judge Carolyn D. King, Judge W. Eugene Davis, Judge
James L. Dennis, Judge Edward C. Prado, Judge Leslie H. Southwick, Judge
Catharina Haynes, Judge James E. Graves, and Judge Stephen A. Higginson.
     Upon the filing of this order, the clerk shall issue the mandate forthwith.
See FED. R. APP. P. 41(b).


ENTERED FOR THE COURT:


___________________________
PATRICK E. HIGGINBOTHAM
UNITED STATES CIRCUIT JUDGE




                                      2
                                   No. 07-70031

PATRICK E. HIGGINBOTHAM, Circuit Judge, respecting the denial of
rehearing en banc:
      I write here to explain my reasons for opposing en banc rehearing. The
relevant legal principles in this case are settled and challenged only in their
application. That this is a capital case sounds no greater call for studied and
evenhanded application than ought always be at hand. At the same time and as
I will insist, the binary choice of life or death tolerates no mediating, graduating
scale of consequences for slippage in protecting rights constitutionally secured
to persons whose life the State would take. Ours was no watery eyed decision.
When a prosecutor with a close case repeatedly asks the jury to do what it must
not — infer the accused’s guilt from his insistence that the state prove its case
without his testimony — the conviction cannot stand.


                                         I.
      Facts matter — at every level. And the events at trial must be mastered
to give to grandly stated constitutional norms their content, meaning, and force.
To these eyes, the undisputed record of what occurred at this trial permits no
answer in service of the constitutional principle at issue but the one we gave.
The question is not whether the jury could have convicted Gongora of capital
murder absent the error; rather, it is whether the admissible evidence of
Gongora’s guilt presented the State with a difficult case, and whether the
comments on silence closed the evidentiary gap. The prosecutor persisted in
asking the jury to infer Gongora’s guilt from his not taking the stand. Such a
blatant violation of a primer rule of criminal trials by a felony prosecutor from
a major metropolitan city is no accident. It is in the heat of trial with close cases
that able counsel sometimes give way to the frustration of being denied an
opportunity to shore their case. Viewed objectively, the effort was to enhance
the opportunity for conviction. Whatever other post hoc speculation may be

                                         3
                                  No. 07-70031

offered, it cannot erase the record — of the arguments made and the evidence
presented of Gongora’s participation in the robbery and death of Delfino Sierra.
      The responsive path of the law here reflects the power of prosecutorial
comment. Our jurisprudence long tolerated comment on a defendant’s silence,
persuaded that the Fifth Amendment was adopted only to forbid a defendant’s
coerced testimony. But the very force of these prosecutorial comments came to
be viewed in pragmatic terms as being coercive in fact, not to be turned by
anemic, routinized instructions to disregard. Alluding to this history here is only
to remind that the effectiveness of such comments has not changed — and that
their temptation for a prosecutor with a less-than-compelling case remains great.
So an effort to save a verdict tainted by such violations with contentions that the
State’s case was overwhelming at least demands close scrutiny of the facts. I
resolve no facts. I only recount the versions competing for the jury’s verdict,
leaving them to reject with their own voice the view that there were none that
offered succor to the defendant. There were, and I will describe them.


                                       II.
      The State’s theory was that six men in a van spotted Delfino Sierra
walking on Northside Drive in Fort Worth, Texas, that two of the men
approached Delfino Sierra, that one was the shooter, and that the other was the
accomplice. After sorting and re-sorting this deck of six, the State rested its
capital case against Gongora upon its ability to persuade the jury that he was
one of those two men — specifically, the shooter. Gongora admitted, in a pre-
indictment statement to police investigators introduced into evidence at trial,
that he was in the van when the men spotted Sierra walking and that “we
wanted to . . . get a little money.” He did not admit that he was one of the two
men who approached Sierra. Rather, his account of events, accepted as true and
understood together with Juan Vargas’s initial sworn statement to police, can


                                        4
                                      No. 07-70031

lead to no other conclusion than that Gongora remained in the van after Vargas,
the van driver, dropped off the shooter and his accomplice in a parking lot across
the street and to the east of the intersection where Sierra was shot.1
       Gongora recounted that “we passed [Sierra on Northside Drive] . . . and
pulled into the little store before you pass the railroad tracks,” that “we did a
U-turn in the parking lot and went back towards where [Sierra] was walking,”
that “next thing I remember the side door opened, all of us were going to get out
then there were gunshots,” that “I turned around and saw the guy that was
wearing the cowboy hat laying on the ground,” and that “[r]ight after the shots
all of us jumped back in the van and we left.”2 For his part, Vargas — an
indicted co-conspirator who testified under plea as the State’s star witness —
insisted in his initial, pre-plea statement that he stopped at the “little store” on
Northside Drive before the railroad tracks; that Carlos Almanza (the shooter)
and James Luedtke (the accomplice) jumped out in the store’s parking lot and


       1
          To assist the reader, I attach in an appendix my own diagrams of Vargas’s two
competing accounts of the crime, drawn from the undisputed testimony and Defense Exhibit
15 (introduced into evidence at trial without objection by the prosecution).
       2
        Gongora’s full statement, which was taken by police detective Carlos A. Ortega on the
morning of June 19, 2001, read:
      Me, Carlos, Albert, and Little Wero got in Juan’s van and we all took off to my
      house. We came up 28th and then took a right to 25th and headed to Main St.
      Then we went down Main St. and turned on Northside Dr. When we made the
      turn we saw this guy walking by himself on the right side of the street if you are
      going towards I-35. I’m not sure what he was wearing but I remember he was
      wearing a cowboy hat. We passed him up and pulled into the little store before
      you pass the railroad tracks. We did a U-turn in the parking lot and went back
      towards where the guy was walking. All we wanted to do is get a little money
      and go about our business. Next thing I remember the side door opened, all of
      us were going to get out then there were gunshots, I turned around and saw the
      guy that was wearing the cowboy hat laying on the ground. I think there was
      about three fast shots fired. Right after the shots all of us jumped back in the
      van and we left. . . . Q. This deal here was this suppose [sic] to go down the way
      it did? A. No, we were just suppose [sic] to get some money and don’t do
      anything stupid. Q. Who got down with the gun? A. I don’t know.
(Emphasis added.)

                                             5
                                       No. 07-70031

crossed Northside Drive on foot toward Sierra; and that Vargas did a U-turn in
the parking lot, drove back toward Sierra, and stopped in a driveway on Calhoun
Street.3 The only part of Vargas’s story that changed at trial was the identity of
the two men who jumped out of the van and walked across the street — this,
after extensive plea negotiations between Vargas, his lawyer, and both
prosecutors. The prosecution presented Vargas’s trial version of the respective
routes of the van and its six passengers as undisputed fact — a characterization
that is accurate, except for the identity of the two assailants. The store, the
driveway, and Vargas’s route are all clearly depicted in Defense Exhibit 15, an
oversized map of the crime scene drawn by a detective in open court based on the
Vargas accounts and the account of the only neutral eyewitness, Sonia Ramos.
The exhibit was admitted into evidence without objection by the prosecution.4




       3
           Though Vargas’s initial statement to police was introduced for the record only,
Vargas clearly and repeatedly testified at trial that the shooter and his accomplice got out in
the parking lot and crossed the street on foot. See 37 RR 106–109, 124–125. Moreover, the
jury heard — from Vargas, the police detective, and the prosecution itself — that the only
aspect of Vargas’s story that changed was the identity of the two men who jumped out in the
parking lot and assailed Sierra. See, e.g., 37 RR 135–137; 38 RR 151–52. The record reflects
that this characterization of Vargas’s initial statement is accurate.
       4
          The record is replete with examples of the prosecution’s reliance on Vargas’s account
as set forth in Defense Exhibit 15, but I ought provide at least one example:
        [Prosecutor:] Now, the rest of the chart, though — the rest of this chart — the
        details never changed, did they, from [Vargas’s] first statement and second
        statement, correct?
        [Detective:] Correct.
        [Prosecutor:] All of this, the passing the victim, pulling into the gas station,
        doing a U-turn and, ultimately, picking up the shooters, that all remained
        exactly the same, right?
        [Detective:] Correct.
        [Prosecutor:] The only difference was the identity of the people who got out to
        do the robbing, right?
        [Detective:] Correct.
        [Defense:] Could you identify which chart you’ve just —
        [Prosecutor:] Yeah. I’m talking about Defendant’s Exhibit 15.
38 RR 151–52.

                                              6
                                  No. 07-70031

      Putting Gongora’s account together with Vargas’s initial statement and
accepting both as true, Gongora must have remained in the van after Vargas
dropped off Almanza and Luedtke in the parking lot and until the van arrived
in the driveway on Calhoun Street south-east of Sierra and his two assailants.
In this version of events, Gongora’s statement that “all of us were going to get
out then there were gunshots” refers to Gongora and the remaining three men
in the van. Indeed, the apparent absence of any time gap between the moment
when Gongora was “going to get out” of the van and the “gunshots” not only
maps perfectly onto Vargas’s testimony that he heard the shots shortly after he
pulled into the driveway, but makes sense only if the shooter and the accomplice,
who had to walk for some distance to cross the street and intercept Sierra (and
whom Ramos spotted walking with Sierra for some time) were already long since
out of the van. And the fact that Gongora had to “turn[] around” to see “[Sierra]
laying on the ground” is consistent with the location of the van at the time of the
shooting (in the driveway) as well as Vargas’s testimony that he could see the
shooting from the van. Finally, both of Vargas’s accounts had the shooter
jumping out of the front passenger seat, whereas Gongora noted only that “the
side door opened.” It bears reminding that Gongora gave his statement without
the benefit of counsel — before the criminal complaint was filed and the grand
jury returned an indictment.
      At best, Gongora admits that he briefly exited the van after Vargas looped
the van back toward Sierra and temporarily stalled out his engine in the
driveway on Calhoun Street. Gongora stated that “all of us were going to get out
then there were gunshots” and that “I turned around and saw the guy that was
wearing the cowboy hat laying on the ground.” By this language, Gongora was
still in the van or about to get out when he heard the gunshots. With that in
mind, the jury could have reasonably concluded that Gongora’s statement that
“all of us jumped back in the van” refers to the fact that the two men who

                                        7
                                       No. 07-70031

accosted Sierra got back into the van (i.e., “everyone was back inside”). This
point was not lost on the defense, which reminded the jury that “if you read the
statement, he never got out of the van . . . that’s one version you can take from
this.” Or, Gongora could have been referring to himself and the remaining
passengers — after all, in Vargas’s accounts, the shooter and accomplice did not
reenter the van until it pulled back out of the driveway onto Calhoun Street.5
What is certain is that Gongora did not, as suggested by the CCA, admit that he
was one of the two men who approached Sierra — an admission that would have
directly contradicted his insistence that he did not know “who got down with the
gun.”6 And the jury heard sharply diverging accounts of the identity of the
shooter and his accomplice — two from Vargas, the State’s key witness.
       In Vargas’s initial sworn statement to police, Carlos Almanza and James
Luedtke (“Guero”/“Wero”) jumped out of the van in the parking lot and walked
across the street toward Sierra. Almanza was the shooter, and the other three
men in the van were left unmentioned. This account was corroborated by
Vargas’s wife as well as by Almanza’s former cell mate Ramiro Enriquez, who
had no stake in the case and testified that Almanza admitted to the killing in
prison.7 According to Enriquez, Almanza gave an account in which Vargas


       5
         That Gongora was the “only” person in the van to give an account that suggested that
more than two people got out of the van at some point does not travel against the narrative
line that I am lifting from the record. It would not have been lost on the jury that Vargas and
Luedtke had an incentive to downplay their own level of participation in the crime: admitting
any overt act in furtherance of the robbery could serve to inculpate them as parties. And the
remaining men in the van — Orosco, Almanza, and Steven Gongora — all refused to testify.
       6
        This is no appellate finding, but a recitation by the CCA of what the jury might have
concluded, viewing the evidence in the light most favorable to the prosecution.
       7
         The corroboration by Vargas’s wife requires some explanation. As the CCA observed
on direct review:
       [Vargas’s wife Maria] Morales [gave a sworn statement to police] that on a night
       around the time of the offense, Vargas came home crying. Although he would
       not initially tell her the reason, Vargas eventually explained that he and some
                                                                                 (continued...)

                                              8
                                        No. 07-70031

parked his van across the street from Sierra and Almanza got out of the van
“with some of his homeboys (I’m not sure how many),” crossed the street toward
Sierra, said “what’s up” in Spanish, shot Sierra in the back of his head, stood
over his body, and, finally, got picked up by Vargas — an account that closely
resembles Sonia Ramos’s eyewitness account, Vargas’s initial statement, and
Luedtke’s trial testimony.8 The prosecution’s ballistics expert could not rule out
the possibility that the bullets recovered from Sierra’s body came from the same
gun that Almanza used in a second, non-fatal shooting later that night.
       The State’s case against Gongora did not exist until Vargas, the driver,
made one critical change to his story, substituting Gongora for Almanza and
Albert Orosco for Luedtke as the two men who walked across the street.9 That
was Vargas’s proffer to the prosecution, conditioned, as the jury was well aware,
on his receipt of a 23-year sentence instead of a trial for capital murder. With


       7
          (...continued)
         others had been in the van when they saw a man (apparently referring to
         Sierra) that [Carlos] Almanza claimed owed him money. When they stopped the
         van, Almanza killed the man for no reason.
Gongora v. State, 2006 WL 234987, at *4 (Tex. Crim. App. 2006). However, Gongora’s jury
only heard a police detective testify that Morales’s statement was “consistent with” Vargas’s
initial account, that the detective had “interviewed her independently,” that he “didn’t interject
anything as to who I had spoken to or anything else like that,” and that he “allowed her to tell
me what she knew and without any other guidance or pushing or anything like that.” The trial
court refused to allow Gongora to introduce Morales’s full statement or cross-examine her.
Gongora raised the issue on direct appeal, but the CCA flatly concluded that “even if the trial
court abused its discretion . . . , [Gongora] was not harmed by this error.” Id. Three judges
dissented, concluding that the error warranted a new trial. See id. at *15. Gongora did not
raise the issue before our panel.
       8
          Of course, Luedtke testified that Gongora, not Almanza, was the shooter who spoke
to Sierra and stood over his dead body — but only after Vargas cut Luedtke loose with the plea
agreement, substituting Gongora for Almanza and Orosco for Luedtke.
       9
          Gongora’s trial counsel made sure that this point was not lost on the jury. See, e.g.,
40 RR 69–70 (“I do want you to notice one thing about the State’s presentation. It hinges on
Juan Vargas. . . . Did he tell a police officer the truth the first time he came in
contact? . . . That’s when he said that Carlos [Almanza] and Guero [(James Luedtke)] did this.
Carlos did the shooting. Doesn’t have a lawyer then. It’s just him and the cops. . . . And now,
no, it’s not Carlos and Guero. No. It’s got to be Albert [Orosco] and my client.”).

                                                9
                                        No. 07-70031

this exculpation, Luedtke, of course, followed with the same account, clearing
himself from the risk of capital charges and giving the State a second witness.10
Even as he took the stand, however, Luedtke gave testimony consistent with his
initial role as the accomplice, offering minute details about the shooting and
stating that he heard the shooter utter specific words to Sierra (“casa la febio”)11
when the jury could have very reasonably concluded, based on common sense
and Vargas’s testimony that the shots rang out immediately after he pulled into
the driveway, that only the shooter and the accomplice would have been able to
hear what passed between themselves and Sierra.12
       Sonia Ramos, the sole independent eyewitness, testified only that she
spotted two men walking with Sierra about a block ahead of her as she was
driving west on Northside Drive and that the man walking to Sierra’s left shot
him in the intersection of Northside and Calhoun. Ramos testified that she did



       10
            The prosecution did not deliver a coherent narrative of why Vargas initially
inculpated Luedtke while “covering” for Albert Orosco. Luedtke was a card-carrying member
of the Puero Li’l Mafia, of which Vargas was a leader, while Orosco had no affiliation with the
gang. Police did not talk to Luedtke until six months before Gongora’s trial — over a year after
the shooting. Dylan Griffith, another PLM member not involved in Sierra’s shooting, testified
at trial that Luedtke told him “I ain’t — I ain’t going down for it. I’ll put it on whoever I got
to, as long as I don’t go down for it.”
       11
           Luedtke testified that “casa la febio” means “give me your money” in Spanish. On
cross, he acknowledged that he wasn’t sure what the words meant. He insisted, however, that
he heard the shooter utter those specific words.
       12
           The defense was well aware of the problems with Luedtke’s testimony and
highlighted them to the jury during closing arguments:
       Guero [(Luedtke)] . . . says they were so close he could hear something that was
       being said. It’s interesting Juan Vargas didn’t hear it. He never said it. Not
       once. In fact, he said he couldn’t hear anything . . . If he heard those words,
       then he was three or four or five feet away from Delfino Sierra, which makes
       him one of the culprits, which makes Juan Vargas’[s] first declaration that he
       gave to the detective correct. . . . And I want you to think about it when you go
       back there, because there’s no way he could have heard anything from his
       position in that — in that van.
40 RR 76, 86–67. The jury also learned that Vargas’s initial account implied that he did not
see which of the two assailants (at that point, Almanza and Luedtke) did the shooting.

                                              10
                                        No. 07-70031

not even notice the van until she glanced over her shoulder while turning right
on the opposite corner of the next cross-street past the intersection, a block away
(“I looked back, I seen the van, and then I took off”). Ramos twice stated that
she did not see who got back into the van, nor did she indicate whether she was
in a position to see anyone around the van. She noticed the van because its
reverse lights were on,13 suggesting that Vargas and the three passengers were
already backing out into Calhoun Street (where, according to Vargas, they
intercepted the shooter and the accomplice). As the State conceded during its
closing argument, Ramos’s placement of the shooter to Sierra’s left ran headlong
into Vargas’s revised account, casting doubt not only on Gongora’s role as the
shooter, but on Vargas’s revised account more generally.14
       This was the posture of the State’s case-in-chief when the prosecutor
repeatedly reminded the jury, in the face of sustained objections and in a closing
rebuttal that could not be answered by the defense, that Gongora — unlike, say,
James Luedtke — failed to testify to explain his “role” in Sierra’s robbery and
shooting. That the prosecutor unrelentingly pounded on Gongora’s silence —



       13
           The shooting occurred between 9:30PM and 10:00PM in April. Ramos testified that
she was able to see Sierra and his two assailants walking because the street was well lit. She
also testified that there was some oncoming traffic.
       14
          Ramos testified that she first spotted Sierra flanked by two men about a block ahead
of her, with all three men walking west on Northside Drive (in her driving direction). Ramos
insisted that the shooter walked to the left of Sierra; that the other man walked to Sierra’s
right; and that none of the men changed their relative positions before the shooting. There was
no confusion as to what Ramos meant by “left” and “right,” as she repeatedly testified that the
three men were walking on the left side of the street (recall that Ramos and the men were
moving in the same direction, so that her left was their left). Moreover, her testimony was
consistent with forensic evidence that a bullet hit the back, left side of Sierra’s head. Vargas,
however, placed Gongora to Sierra’s right, again relative to Sierra’s walking direction. And
though the detective’s intake sketch of the crime scene (not in evidence) does not clearly reflect
Vargas’s placement of Gongora and Orosco, the panel’s focus was on the defense’s unobjected-to
Exhibit 15. The exhibit, a map, clearly placed Gongora to Sierra’s right and Orosco to Sierra’s
left; moreover, the detective who drew it insisted that it reflected Vargas’s account of the men’s
respective positions — in the teeth of sharp questioning by the prosecution.

                                               11
                                         No. 07-70031

first directly and later by implication — cannot seriously be disputed.15 And
understood in the context of the narratives competing for the jury’s verdict, the
effect of these comments was deadly. After all, “[w]ho do you expect to hear
from? The person who wasn’t involved at all, that had nothing at all, just
present during that deal? Of course you hear from that person.” (Left unstated
was the reality that those who did testify were heard from only after their
exculpation through the plea deal struck with Vargas.)
       It is no answer that there was sufficient evidence to convict Gongora as a
party to capital murder even if he remained in the van after the shooter and the
accomplice jumped out and headed toward Sierra.16 Brecht focuses not on the
sufficiency of the evidence sustaining the conviction, but on actual prejudice to
the jury’s verdict.17 Here, the prosecution itself repeatedly emphasized that the
six van-inhabitants’ respective “roles” in Sierra’s robbery and murder were


       15
           See Gongora v. Thaler, 710 F.3d 267, 275–80 (5th Cir. 2013); see also id. at 287
(Owen, J., dissenting) (“I agree [with the panel majority] that the [initial] statements . . . were
an impermissible comment on Gongora’s assertion of his Fifth Amendment rights.”); Gongora
v. Quarterman, 498 F. Supp. 2d 919, 929 (N.D. Tex. 2007) (“Having thoroughly reviewed the
prosecutor’s remarks, the court concludes that the prosecutor did, in fact, intend to comment
on Gongora’s silence. The court further concludes that the character of the remarks were such
that the jury would necessarily construe them as comments on Gongora’s silence.”). During
oral argument, the State conceded that the comments were clearly improper. And the
prosecutor himself characterized his initial comments as a “big mistake.”
       16
          Had the State attempted to convict Gongora on the basis of his agreement to the
conspiracy and mere presence in the van, it would have had a difficult time explaining its 23-
year plea deal with Juan Vargas. Vargas, the van driver, was arguably nearly as culpable as
the accomplice, admitting not only that he joined the conspiracy to rob Sierra, but that he
played a critical role in carrying out the robbery, dropping off and picked up the two assailants.
The State’s solution was to argue that whereas Vargas was merely “technically” guilty of
capital murder under the law of the parties, Gongora was “a stone-cold killer,” meaning that
“the only sane verdict in this case is guilty as charged.”
       17
          O’Neal v. McAnich, 513 U.S. 432, 438 (1995) (“The [Brecht] inquiry cannot be merely
whether there was enough to support the result, apart from the phase affected by the error.
It is rather, even so, whether the error itself had substantial influence. If so, or if one is left
in grave doubt, the conviction cannot stand.” (quoting Kotteakos v. United States, 328 U.S. 750,
764–65 (1946)).

                                               12
                                         No. 07-70031

critical to gauging their culpability. And as reflected in the jury instructions, the
State’s law-of-the-parties theory was narrow, hinging on the notion that Gongora
was either the shooter or the accomplice. The prosecution knew that its case
rested on the testimony that it had plea bargained for — and that there was
significant evidence in the record to support either of Vargas’s diverging
accounts. And it perceived, correctly, that reasonable doubts remained. It is in
this context that the comments on Gongora’s silence took their toll.
       I am keenly aware of the Supreme Court’s strong enforcement of AEDPA
and the principles of federalism in which the Act is grounded — a command
anticipated in and subsumed by Brecht.18                    I remain convinced that the
prosecutor’s unrelenting Fifth Amendment violations here infected every aspect
of Gongora’s trial; that they had a real, substantial, and injurious effect on the
jury’s verdict, causing the jury to accept the State’s theory that Gongora was
either the shooter or the accomplice when the evidence identifying him as such
came from the shifting and contradicted testimony of co-conspirators who were
high on heroin and drunk at the time of the shooting, questioned their own


       18
          Fry v. Pliler, 551 U.S. 112, 117–18 (2007) (“In Brecht . . . we considered whether the
Chapman standard of review applies on collateral review of a state-court criminal judgment
under 28 U.S.C. § 2254. Citing concerns about finality, comity, and federalism, we rejected the
Chapman standard in favor of the more forgiving standard of review applied to
nonconstitutional errors on direct appeal from federal convictions.”); id. at 119–20 (“It is
implausible that, without saying so, AEDPA replaced the Brecht standard of ‘actual prejudice’
with the more liberal AEDPA/Chapman standard which requires only that the state court’s
harmless-beyond-a-reasonable-doubt determination be unreasonable.”); see also Burbank v.
Cain, 535 F.3d 350, 356–57 (5th Cir. 2008) (“Although the District Court set forth certain
provisions of the [AEDPA] as the governing standard of review, it actually applied the
standard of review that the Supreme Court set forth in Brecht . . . . Indeed, the Supreme Court
recently explained [in Fry] that the Brecht standard subsumes the standards announced in
AEDPA.”); Ayala v. Wong, 693 F.3d 945, 961 & n.14 (9th Cir . 2012) (same); Wiggins v. Boyette,
635 F.3d 116, 121 (4th Cir. 2011) (same); Wood v. Ercole, 644 F.3d 83, 94 (2d Cir. 2011) (same);
Ruelas v. Wolfenbarger, 580 F.3d 403, 412 (6th Cir. 2009) (same); Foxworth v. St. Amand, 570
F.3d 414, 435 (1st Cir. 2009) (same); Bond v. Beard, 539 F.3d 256, 275–76 (3rd Cir. 2008)
(same); see also Vining v. Sec’y, Dep’t of Corr., 610 F.3d 568, 571 (11th Cir. 2010) (applying only
Brecht, citing Fry); Welch v. Workman, 639 F.3d 980, 992–93 (10th Cir. 2010) (same); Jackson
v. Norris, 573 F.3d 856, 858 (8th Cir. 2009) (same).

                                               13
                                       No. 07-70031

recollection of events, changed their stories prior to trial, and testified under
plea or fear of charges. It signifies that during oral argument, counsel for the
State conceded that the prosecutor who handled the closing rebuttal may have
become “emotional” and may have reached “the point where this guy feels like
he’s got to say something to establish the credibility of these accomplice
witnesses.”19 Even were AEDPA/Chapman to govern our review, declaring the
Griffin errors in this case “harmless beyond a reasonable doubt” would drain the
right to silence of all meaning. Such a conclusion cannot, by any stretch of
language, be characterized as fairminded or reasonable.
       I have lifted from the record one narrative that the jury could have drawn.
That another, the State’s, can be drawn is no answer to the prosecutor’s
impermissible argument — one born of a fear that the jury would not accept that
version of events as true beyond a reasonable doubt. So, I say only that I share
this felony prosecutor’s doubts — grave doubts that caused him to make what
he well knew was an argument that was potent, and forbidden because it is.




       19
          The jury deliberations suggest that the prosecution had good reason to fear that its
reliance on Vargas’s testimony would leave reasonable doubt: the jurors requested all exhibits
and sent out a number of notes — including several requests for evidence and testimony
bearing on Vargas’s conflicting accounts of who approached and assailed Sierra.

                                             14
No. 07-70031




    15
No. 07-70031




    16
                                         No. 07-70031

JERRY E. SMITH, Circuit Judge, joined by JOLLY, JONES, CLEMENT, and
OWEN, Circuit Judges, dissenting from the denial of rehearing en banc:


       In disposing of habeas corpus petitions, this court is not permitted to sub-
stitute its judgment for that of the state courts.1 But that is what this panel
majority has done.2 Although it pretends to apply the strict standard of Brecht

       1
          “Habeas corpus serves as ‘a guard against extreme malfunctions in the state criminal
justice system, not a substitute for ordinary error correction through appeal.’” Dorsey v. Ste-
phens, 720 F.3d 309, 314–15 (5th Cir. 2013) (quoting Harrington v. Richter, 131 S. Ct. 770, 786
(2011)).
       2
           In defense of his panel majority opinion, Judge Higginbotham takes the unusual step
of filing a spirited statement “respecting the denial of rehearing en banc.” Responding to this
dissent, he not only presents his judgment as a substitute for that of the state courts, but he
additionally offers his proposed verdict for that of the state-court jury. Ignoring the double lay-
ers of deference with which we review state-court habeas rulings, Judge Higginbotham also
announces the following per se rule: “When a prosecutor with a close case repeatedly asks the
jury to do what it must notSSinfer the accused’s guilt from his insistence that the stare prove
its case without his testimonySSthe conviction cannot stand.” Such an inflexible standard of
review would contravene decades of habeas jurisprudence, not to mention caselaw on harmless
error.

        Although purporting to “resolve no facts,” Judge Higginbotham credits some state-
ments, disregards others, and generally approaches the case as would a fact-finder in the first
instance—all before addressing the prosecutor’s comments on Gongora’s failure to testify. (See,
for example, Judge Higginbotham’s conclusion that Gongora’s use of the future tense—“all of
us were going to get out then there were gunshots”—definitively indicates that he had not left
the van when the shots were fired, then speculating that a simultaneous statement—“all of
us jumped back in the van”—does not bear its plain meaning, i.e., that Gongora had left the
van.) Once he reaches the prosecutor’s scattershot comments, Judge Higginbotham unpersua-
sively characterizes them an “unrelenting[] pound[ing].”

        Almost entirely missing from Judge Higginbotham’s thoughtful analysis of the record
is precisely what Gongora must show: some meaningful nexus between the error and the ver-
dict. Judge Higginbotham contends that the prosecutor’s comments must have swayed the
jury because, before they were made, the state’s case was lacking. But Judge Higginbotham
offers no explanation—beyond his ipse dixit—for how the prosecutor’s borderline-incoherent
statementsSSwhich the jury was swiftly and repeatedly instructed to disregardSS“closed the
evidentiary gap.” See Gongora v. Thaler, 710 F.3d 267, 285–87 (5th Cir. 2013) (Owen, J., dis-
senting) (quoting the prosecutor).

       Judge Higginbotham maintains that “reasonable doubts remained” before the prose-
cutor impermissibly commented on Gongora’s silence. If that is so, however, it is highly
                                                                          (continued...)

                                               17
                                      No. 07-70031

v. Abrahamson, 507 U.S. 619 (1993), its gross misapplication of that standard
evades the Supreme Court’s recent habeas instructions and circumvents the
comity and federalism that Brecht was intended to safeguard. See id. at 635–38.
This is grave error that infects this circuit’s habeas jurisprudence, so I respect-
fully dissent from the denial of rehearing en banc.


                                             I.
       Gongora “confessed in writing that he intended to rob the victim . . . [and]
that he left the van [in which he was riding with five others] to rob the victim.”
Gongora, 710 F.3d at 289–90 (Owen, J., dissenting). Irrespective of whether
Gongora was the shooter, those facts establish his guilt under Texas’s law of
parties. See id. at 290–91 (Owen, J., dissenting). On direct appeal, Gongora
claimed the prosecutor impermissibly commented on his failure to testify. The
Texas Court of Criminal Appeals (“TCCA”) concluded to the contrary:
          When viewed in context, the complained-of comments appear to
       be the prosecutor’s attempt to comment on [Gongora’s] failure to
       produce witnesses other than [himself], which is a permissible area
       of comment. . . . Nonetheless, the prosecutor’s actual comments
       tended to be inartful and often confusing, leading the trial judge to
       sustain [Gongora’s] objections to the remarks and to instruct the
       jury to disregard them. However, the court did not abuse its discre-
       tion in thereafter overruling [Gongora’s] various motions for mis-
       trial on this issue. On this record, the prosecutor’s comments were
       not so blatant that they rendered the instructions to disregard inef-
       fective. Thus, the judge reasonably concluded that the instructions
       to disregard effectively removed any prejudice caused by the prose-
       cutor’s comments.[3]




       2
        (...continued)
unlikely that the prosecutor’s error did anything to dispel them.
       3
         Gongora v. State, 2006 WL 234987, at *10 (Tex. Crim. App. Feb. 1, 2006) (citation
omitted), cert. denied, 549 U.S. 860 (2006).

                                             18
                                        No. 07-70031

      On collateral review, the federal district court determined that, although
“the prosecutor’s remarks concerning Gongora’s failure to testify amount to con-
stitutional error,” the so-called Griffin error4 was harmless absent “any evidence
in the record that his remarks ‘had substantial and injurious effect or influence
in determining the jury’s verdict’ as required for the granting of federal habeas
relief.” Gongora v. Quarterman, 498 F. Supp. 2d 919, 927 (N.D. Tex. 2007) (cita-
tion omitted) (emphasis added). “Gongora only argues in conclusory fashion that
the jury struggled in reaching its verdict, because the state’s case against him
was weak . . . . Even if this were true, there is no evidence, substantial or other-
wise, of a nexus between the prosecutor’s improper remarks during argument
and the jury’s decisions.” Id. (citation omitted) (emphasis added).
      Some 5½ years after receiving Gongora’s appeal, and 3½ years after oral
argument, a sharply-divided panel of this court disagreed with both the TCCA
and the district court. After determining that the Fifth Amendment violation
was not harmless, the majority granted the habeas petition and ordered that he
“be released from custody unless within six months of the mandate of this court
he is again brought to trial or the case is otherwise terminated by plea or other
disposition under state law.” Gongora v. Thaler, 710 F.3d at 283 (per curiam).


                                              II.
      In Fry v. Pliler, 551 U.S. 112, 120 (2007), the Court clarified that Brecht
“provides the appropriate standard of review when constitutional error in a
state-court trial is first recognized by a federal court.” Under that standard—
applied, to different effect, by both the panel majority and Judge Owen’s dissent
—an error is harmless unless it “had substantial and injurious effect or influence
in determining the jury’s verdict.” Brecht, 507 U.S. at 637 (citation and internal



      4
          See Griffin v. California, 380 U.S. 609 (1965).

                                              19
                                     No. 07-70031

quotation marks omitted). Courts applying Brecht to determine harmlessness
must bear in mind why it provides “the appropriate standard”: Fry teaches that
the stricter Brecht standard “subsumes” the “more liberal” test articulated by
AEDPA, under which “a federal court may not award habeas . . . unless [a state
court’s] harmlessness determination itself was unreasonable.” Fry, 551 U.S.
at 119–20 (citation omitted).
      In Fry, the Court reasoned that Brecht had survived the subsequent enact-
ment of AEDPA “because the purpose of AEDPA is to ‘limit[ ] rather than
expand [ ] habeas relief,’ and Brecht is the more stringent standard.” Burbank
v. Cain, 535 F.3d 350, 357 (5th Cir. 2008) (quoting Fry, 551 U.S. at 119). “That
is to say, where an error is harmful under Brecht, any state court decision
declaring it harmless must have unreasonably applied [clearly established fed-
eral law]. As a result, any error satisfying Brecht will also satisfy AEDPA’s
deference requirements.” Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011)
(Wilkinson, J.).


                                           III.
      Because Gongora’s Fifth Amendment claim fails under AEDPA, it neces-
sarily cannot surmount the even stricter Brecht standard.5 “A state court’s
determination that a claim lacks merit precludes federal habeas relief so long as
fairminded jurists could disagree on the correctness of the state court’s decision.”
Richter, 131 S. Ct. at 786 (internal quotation marks omitted).
      As a condition for obtaining habeas corpus from a federal court, a
      state prisoner must show that the state court’s ruling on the claim

      5
         Although the TCCA did not specifically address the prosecutor’s impermissible com-
ments on collateral review, see Ex parte Gongora, 2006WL 3308713, at *1 (Tex. Crim. App.
Nov. 15, 2006) (per curiam), AEDPA’s relitigation bar nonetheless applies. See Johnson v.
Williams, 133 S. Ct. 1088, 1096 (2013) (“When a state court rejects a federal claim without
expressly addressing that claim, a federal habeas court must presume that the federal claim
was adjudicated on the merits. . . .”).

                                            20
                                  No. 07-70031
      being presented in federal court was so lacking in justification that
      there was an error well understood and comprehended in existing
      law beyond any possibility for fairminded disagreement.

Id. at 786-87 (emphasis added) (citation and internal quotation marks omitted).
      Here the AEDPA inquiry is easy, in part because fairminded jurists have
disagreed. In thoughtful and detailed opinions, two federal judges (the district
court and Judge Owen) have concluded the error was harmless; two federal
judges (comprising the panel majority) have disagreed. No amount of hyperbole
(nor a resort to the less familiar Brecht standard) can transform a close call by
the state court into an “extreme malfunction[],” id. at 786, especially here, where
the TCCA reasonably declined to find reversible error based on garbled com-
ments, about Gongora’s failure to testify, that the jury was repeatedly instructed
to disregard. In concluding otherwise, the panel majority maintains the incoher-
ent position that, although fairminded jurists could disagree regarding harm-
lessness, Gongora is somehow entitled to relief under a standard that is even
stricter than that required by AEDPA.


                                       IV.
      Measuring Gongora’s claim against AEDPA illustrates just how blatantly
the majority misapplied Brecht: Because the error was not harmful under
AEDPA, it cannot be harmful under the definitionally “more stringent” Brecht
standard. Burbank, 535 F.3d at 357; see also Bauberger, 632 F.3d at 104. More-
over, although Fry, 551 U.S. at 120, determined that Brecht provides an “appro-
priate standard of review,” Fry does not bar a court from considering AEDPA.
“Per that case, a habeas court remains free to, before turning to Brecht, inquire




                                        21
                                       No. 07-70031
whether the state court’s [harmlessness] analysis was reasonable. If it was rea-
sonable, the case is over.”6
       In analyzing the interplay of AEDPA and Brecht, it is important to bear
in mind the asymmetry inherent in Fry, in which the court of appeals had denied
habeas relief under Brecht, and the petitioner alleged that it was error for the
court not to have also evaluated his claim under AEDPA. The Supreme Court
determined that Fry’s claim “makes no sense,” because its rejection under Brecht
necessarily implied rejection under “the more liberal AEDPA[] standard[.]” Id.
       In sum, Fry boldly stands for the proposition that a habeas court is not
required “formal[ly] [to] appl[y]” both AEDPA and Brecht, because “the latter
obviously subsumes the former.” Id. Nothing in that case precludes a court from
applying AEDPA to deny habeas relief or as part of a two-step analysis.7 Even
a brief consideration of AEDPA, arguendo or otherwise, casts the inadequacy of
Gongora’s Fifth Amendment claim into sharp relief.


                                             V.
       It follows that Gongora’s claim fails under Brecht, a result that is rein-
forced by considering whether the prosecutor’s comments “had substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S.
at 637 (citation and internal quotation marks omitted). Because Judge Owen
has persuasively analyzed Gongora’s claim under Brecht, see Gongora, 710 F.3d




       6
          Ruelas v. Wolfenbarger, 580 F.3d 403, 413 (6th Cir. 2009). Another circuit has con-
cluded that, where Brecht applies, AEDPA’s “‘unreasonable application of [clearly established
federal law]’ standard does not survive Fry.” Wood v. Ercole, 644 F.3d 83, 94 (2d Cir. 2011).
That view contradicts the plain language of Fry, 551 U.S. at 119, which expressly reaffirmed
the AEDPA standard as articulated by Mitchell v. Esparza, 540 U.S. 12 (2003).
       7
         See Ruelas, 580 F.3d at 413; see also Johnson v. Acevedo, 572 F.3d 398, 404 (7th Cir.
2009) (asserting that a habeas court must apply AEDPA before applying Brecht).

                                             22
                                      No. 07-70031
at 289–90 (Owen, J., dissenting), I offer only brief additional comments, drawn
from a similar case in which the Supreme Court recently granted certiorari:
          The majority compounds its error by engaging in a form of
       possible-harm review that verges on a presumption of prejudice.
       This leniency appears both in its emphasis on dicta opining about
       the likelihood that juries draw adverse inferences, and in its ulti-
       mate finding of a “very real risk” of prejudice. Alas, the correct
       harmless-error standard does not permit such speculation, and nei-
       ther does the undisputed evidence . . . .[8]

       Under the “possible-harm review” conducted by the Sixth Circuit in Wood-
all and the instant panel majority—and exemplified by Judge Higginbotham’s
determined portrayal of key facts in the light most favorable to Gongora—“no
error will ever be harmless because one can never know what led a jury to its
decision and it is always possible that a jury based its decision on the alleged
error in question. But that is not the standard under Brecht . . . .”9 Not only did
the evidence establish Gongora’s guilt, but “[t]he trial judge, in addition to issu-
ing curative instructions during the prosecutor’s closing argument, admonished
the jurors several times that they could not and must not consider Gongora’s
choice not to testify as evidence of guilt.” Gongora, 710 F.3d at 289 (Owen, J.,
dissenting).
       Judge Higginbotham’s latest response dismisses the instructions to disre-
gard as “anemic [and] routinized” without explaining why theySSfrom his read-
ing of a long-cold recordSSwere ineffective. He further contends that finding the
Griffin error harmless would “drain the right to silence of all meaning” (empha-
sis added). That hyperbolic assessment is difficult to square with Judge Higgin-
botham’s observation that commenting on a defendant’s silence was “long toler-


       8
         Woodall v. Simpson, 685 F.3d 574, 586 (6th Cir. 2012) (Cook, J., dissenting), cert.
granted sub nom. White v. Woodall, 133 S. Ct. 2886 (2013) (No. 12-794).
       9
          Brief for Petitioner, 2012 WL 6762488, at *22, Woodall, 2013 WL 3213542
(No. 12-794).

                                            23
                                        No. 07-70031
ated” because the Fifth Amendment was interpreted, in accordance with its
plain language, “only to forbid a defendant’s coerced testimony.”10
       Judge Higginbotham’s response also imbues the prosecutor’s confused
comments with almost talismanic significance: So great was their purported
effect on the jury that, to Judge Higginbotham, they “infected every aspect of
Gongora’s trial.” By far the better inference is that, after carefully weighing the
conflicting evidence—and notwithstanding the Griffin error, which had no dis-
cernible impact on the strength of the prosecution’s case—the jury, having
heeded the trial court’s instructions, concluded that Gongora was one of the two
men who approached the victim before he was shot. Viewed in light of the defer-
ence owed to the fact-finder and to the state courts, the record compels the con-
clusion that “Gongora has not shown that the prosecutor’s violations of the Fifth
Amendment substantially influenced the jury’s verdict that he was guilty of capi-
tal murder.” Gongora, 710 F.3d at 290 (Owen, J., dissenting).


                                               VI.
       In response to any suggestion that the panel majority’s error in applying
Brecht is not grounds for en banc review, I note that Judge Higginbotham has
elsewhere opined that “[t]his is a court of error,” and its refusal to consider mat-
ters en banc “leaves litigants at the mercy of panel roulette—the ‘law’ being the
unchartered and legally indefensible view of two judges.”11 The Supreme Court
itself, moreover, routinely engages in error-correction in the habeas arena.12

       10
             See also Salinas v. Texas, 133 S. Ct. 2174, 2177 (2013) (Thomas, J., concurring)
(internal quotation marks omitted) (“Griffin lacks foundation in the Constitution’s text, history,
or logic.”).
       11
          Huss v. Gayden, 585 F.3d 823, 832 (5th Cir. 2009) (Higginbotham, J., dissenting from
denial of rehearing en banc).
       12
          See, e.g., Nevada v. Jackson, 133 S. Ct. 1990 (2013) (per curiam); Marshall v. Rod-
gers, 133 S. Ct. 1446 (2013) (per curiam); Metrish v. Lancaster, 133 S. Ct. 1781 (2013); Parker
                                                                                  (continued...)

                                               24
                                          No. 07-70031
Because the Court reserves summary reversal for “matter[s] of sufficient
national importance,”13 it follows that any case evading AEDPA’s relitigation
barSSto say nothing of Brecht’s even more stringent standardSS“involves a ques-
tion of exceptional importance.”14
       By declaring the error harmful under Brecht, the majority implicitly
brands the determination of the TCCA as worse than unreasonable and the thor-
ough analysis of two federal judges as beyond fairminded disagreement. Adding
injury to insult, the panel majority not only has vacated Gongora’s conviction but
has done so after several years of deliberation. The prospect of retrial has
dimmed with the passage of time and the death of the prosecution’s key witness.
There is a real possibility that Gongora will go free, despite having confessed.
The panel majority “undermines the State[’]s[ ] interest in finality and infringes
upon [its] sovereignty over criminal matters.” Brecht, 507 U.S. at 637.
       In light of the panel majority’s stubborn refusal to reconsider, the en banc
court should grant rehearing, deny the Fifth Amendment claim under Brecht
and AEDPA, and return the case to the panel for expedited consideration of Gon-
gora’s Eighth Amendment claim, which the majority did not reach. See Gongora,
710 F.3d at 273. Instead, the en banc court, with six judges disagreeing,15 has
declined to disturb a flagrant grant of relief that contravenes the principles of


       12
          (...continued)
v. Matthews, 132 S. Ct. 2148 (2012) (per curiam); Wetzel v. Lambert, 132 S. Ct. 1195 (2012)
(per curiam); Hardy v. Cross, 132 S. Ct. 490 (2011) (per curiam); Bobby v. Dixon, 132 S. Ct. 26
(2011) (per curiam); Cavazos v. Smith, 132 S. Ct. 2 (2011) (per curiam).
       13
            Bd. of Educ. v. McKluskey, 458 U.S. 966, 973 (1982) (Stevens, J., dissenting).
       14
          FED. R. APP. P. 35(a)(2). Summary reversal “usually reflects the feeling of a majority
of the Court that the lower court result is so clearly erroneous, particularly if there is a control-
ling Supreme Court precedent to the contrary, that full briefing and argument would be a
waste of time.” EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE ch 5.12(a), at 344
(9th ed. 2007).
       15
            Five of those six judges join in this dissent.

                                                 25
                                No. 07-70031
habeas review unambiguously articulated by the Supreme Court. I respectfully
dissent from the denial of rehearing en banc.




                                      26
