     Case: 11-70020     Document: 00511529017         Page: 1     Date Filed: 07/01/2011



                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

            IN THE UNITED STATES COURT OF APPEALS I L E D
                                                F
                     FOR THE FIFTH CIRCUIT      July 1, 2011

                                                                                  Lyle W. Cayce
                                                                                       Clerk

                                       No. 11-70020


HUMBERTO LEAL GARCIA,

                                                  Plaintiff–Appellant
v.

JOSE E CASTILLO; TIMOTHY FALLON; HENRY R HOLLYDAY; BEXAR
COUNTY CRIMINAL INVESTIGATION LABORATORY; BEXAR COUNTY,
TEXAS; AURORA SANCHEZ

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:09-CV-950


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Plaintiff–Appellant Humberto Leal Garcia (“Leal”) appeals the district
court’s order dismissing his claim under 42 U.S.C. § 1983. Leal also moves to
expedite his appeal and he seeks an order that would prevent the Texas
Department of Criminal Justice from executing him until we resolve his appeal.
For the reasons stated below, we AFFIRM the district court’s order in all


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-70020

respects. We DENY Leal’s motion for a stay of execution and his request for a
temporary restraining order (“TRO”). We GRANT Leal’s motion to expedite and
his motion to proceed in forma pauperis (“IFP”).
                                               I
       This § 1983 appeal stems from Leal’s conviction and death sentence for the
slaying of sixteen-year-old Adria Sauceda.1 Proceeding IFP, Leal filed the
instant pleading after he had repeatedly and unsuccessfully sought relief in
state and federal courts.2 In his Amended Complaint,3 Leal alleges violations of


       1
        The details of this gruesome crime are recited in the district court’s opinion, Garcia
v. Sanchez, No. 5:09-CV-00950, _ F. Supp. 2d _, 2011 WL 2489961, at *5–8 (W.D. Tex. June
20, 2011), as well as in Leal v. State, 303 S.W.3d 292, 294–95 (Tex. Crim. App. 2009).
       2
          See Leal v. State, No. 72,210 (Tex. Crim. App. Feb. 4, 1998) (not designated for
publication) (affirming conviction and sentence on direct appeal), cert. denied, 525 U.S. 1148
(1999); Ex parte Leal, No. WR-41,743-01 (Tex. Crim. App. Oct. 20, 1999) (unpublished)
(denying first state habeas petition); Leal v. Dretke, No. 5:09-CV-01301, 2004 WL 2603736, at
*7–34 (W.D. Tex. Oct. 20, 2004) (denying first federal habeas petition); Leal v. Dretke, 428 F.3d
543, 547–53 (5th Cir. 2005) (denying request for certificate of appealability on first federal
habeas petition), cert. denied, 547 U.S. 1073 (2006); Ex parte Cardenas, No. WR-41,743-02,
2007 WL 678628, at *1 (Tex. Crim. App. Mar. 7, 2007) (not designated for publication)
(dismissing second state habeas petition), cert. denied sub nom. Garcia v. Texas, 552 U.S. 1295
(2008); Leal v. Quarterman, No. 5:07-CV-00214, 2007 WL 4521519, at *4–25 (W.D. Tex. Dec.
17, 2007) (denying second federal habeas petition because it was successive, or, alternatively,
denied on the merits), aff’d in part, vacated in part by Leal Garcia v. Quarterman, 573 F.3d
214 (5th Cir. 2009); Leal Garcia, 573 F.3d at 217–25 (holding second federal habeas petition
to be non-successive, but dismissing same with prejudice on the merits); Leal v. State, 303
S.W.3d 292, 295–302 (Tex. Crim. App. 2009) (denying motion for post-conviction DNA testing
of clothing at state level); Garcia v. Thaler, No. 05:11-CV-00482, 2011 WL 2479912, at *10–21
(W.D. Tex. June 22, 2011) (denying third federal habeas petition and refusing to grant a
certificate of appealability); Ex parte Leal, No. WR-41,743-03 (Tex. Crim. App. June 27, 2011)
(not designated for publication) (dismissing third state habeas petition and denying motion
for stay of execution).
       3
         Leal initially filed his § 1983 claim in 2009 and the district court denied the claim,
relying on our holding in Kutzner v. Montgomery Cnty., 303 F.3d 339, 340–41 (5th Cir. 2002)
(per curiam). Leal moved to alter or amend the judgment and the district court stayed
proceedings while the Supreme Court considered whether a § 1983 action was an appropriate
means for obtaining post-judgment DNA testing in a criminal case. See Skinner v. Switzer, 131
S. Ct. 1289 (2011). The Court issued Skinner on March 7, 2011, holding that a § 1983 lawsuit
was an appropriate means of obtaining DNA testing in criminal cases. Id. at 1298, overruling
Kutzner, 303 F.3d at 340–41. Leal filed his Amended Complaint on June 14, 2011.

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                                       No. 11-70020

his Fourth, Eighth, and Fourteenth Amendment rights due to the
Defendants–Appellees’ possession of certain clothing items and biological
materials that were introduced into evidence during Leal’s capital murder trial.
Leal seeks the evidence for “further testing to demonstrate his innocence of
capital murder.” Am. Compl. ¶ 29. The district court dismissed Leal’s Amended
Complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). Garcia v. Sanchez, No.
5:09-CV-00950, 2011 WL 2489961 (W.D. Tex. June 20, 2011). In doing so, the
district court concluded that Leal’s § 1983 pleading was “based upon
indisputably meritless legal theories” and that Leal’s claims lacked any arguable
legal basis. Id. at *16.       That court also denied Leal’s request for a TRO,
concluding that Leal had failed to demonstrate a substantial likelihood of
success on the merits of his § 1983 claim. Id. at *15–16. Leal appeals the
district court’s order dismissing his § 1983 claim.
                                             II
       Leal contends that the district court erred by dismissing his complaint as
frivolous. We analyze a district court’s dismissal of a complaint as frivolous
under 28 U.S.C. § 1915(e)(2)(B)(i) by using an abuse of discretion standard of
review. Longoria v. Dretke, 507 F.3d 898, 900 (5th Cir. 2007) (per curiam); see
also Harper v. Showers, 174 F.3d 716, 718 & n.3 (5th Cir. 1999). “A district court
‘abuses its discretion if it bases its decision on an error of law or a clearly
erroneous assessment of the evidence.”’ United States v. Smith, 417 F.3d 483,
486–87 (5th Cir. 2005) (quoting United States v. Mann, 161 F.3d 840, 860 (5th
Cir. 1998)).4 Section 1915(e)(2)(B)(i) authorizes a district court to dismiss a case

       4
         In its opinion, the district court noted that under 28 U.S.C. § 1915A, a prisoner’s
complaint may be dismissed if a district court finds the complaint to be frivolous, malicious,
or inadequate to state a claim upon which relief may be granted. Garcia v. Sanchez, 2011 WL
2489961, at *5. Our review of a district court’s legal conclusion under § 1915A is de novo.
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005) (per curiam). Here, we rely on an abuse
of discretion standard of review because, other than the district court’s passing mention to §
1915A, that court’s subsequent legal analysis and conclusions relied on § 1915(e)(2)(B)(i).

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                                        No. 11-70020

“if the court determines that . . . the action or appeal is frivolous or malicious.”
A frivolous claim is one that does not have any arguable basis in fact or law, or
is based on a legal theory that is without merit. Samford v. Dretke, 562 F.3d
674, 678 (5th Cir. 2009). A complaint that alleges violation of a legal interest
“which clearly does not exist” constitutes a claim lacking an arguable basis in
law.5 Id. at 678.
       Under § 1983, an individual may sue state actors to enforce federal
statutory and constitutional rights. Anderson v. Jackson, 556 F.3d 351, 356 (5th
Cir. 2009). To succeed on a § 1983 claim, an individual must prove that: (1) the
conduct in question was committed by an individual acting under the color of
state law; and, (2) the conduct deprived the claimant of a constitutional right.
Kovacic v. Villarreal, 628 F.3d 209, 213 (5th Cir. 2010). Here, Leal alleges that
officials violated his Fourth, Eighth, and Fourteenth Amendment rights by
refusing to release certain evidence that Leal had requested under Chapter 64
of the Texas Code of Criminal Procedure.
       Chapter 64 of the Texas Code of Criminal Procedure permits an individual
to move for DNA testing of evidence secured “in relation to the offense that is the
basis of the challenged conviction and was in possession of the state during the
trial of the offense.” TEX. CODE CRIM. PROC. ANN. art. 64.01(b). In cases such
as Leal’s, the motion must demonstrate that “although previously subjected to
DNA testing, [the evidence] can be subjected to testing with newer testing
techniques that provide a reasonable likelihood of results that are more accurate
and probative than the results of the previous test.” Id. art. 64.01(b)(2). The law
also requires the movant to show that: (1) the unaltered evidence is available for


       5
         Leal asks us to consider whether a district court “can” dismiss his lawsuit based on
“the pleadings by determining sua sponte without benefit of an Answer or evidence that” the
factual allegations raised in the Complaint are untrue. Appellant’s Br. 2. We point to the
plain language of § 1915(e)(2), which permits the district court to dismiss a case “at any time.”
(emphasis added); see also Brewster v. Dretke, 587 F.3d 764, 769 n.3 (5th Cir. 2009).

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                                  No. 11-70020

testing; (2) identity was at issue in the case; (3) there is a greater than fifty
percent chance that the defendant would not have been convicted if DNA testing
provided exculpatory results; and, (4) the motion is not made to delay the
execution of a sentence. Id. art. 64.03(a); see also Leal v. State, 303 S.W.3d at
296.
       Leal unsuccessfully sought access to the contested evidence under that
state statute in Texas courts.     Leal does not—and could not—collaterally
challenge the Texas courts’ interpretation or application of Texas law. See
Skinner v. Switzer, 131 S. Ct. 1289,1297–98 (2011). Therefore, Leal can only
prevail if he shows that the Texas statute, as applied, violated his rights under
the Constitution. Skinner, on which Leal relies, did not enlarge the “slim” right
of a state prisoner seeking DNA testing “to show that the governing state law
denies him procedural due process.” Id. at 1293 (citing Dist. Attorney’s Office for
Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2321 (2009)). Adapting to the
rise of increasingly sophisticated DNA evidence is a “task [that] belongs
primarily to the legislature.” Osborne, 129 S. Ct. at 2316. We will intervene
only if the State’s framework “‘offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental,’ or
‘transgresses any recognized principle of fundamental fairness in operation.’” Id.
at 2320 (quoting Medina v. California, 505 U.S. 437, 446, 448 (1992) (capital
case)).
       Under that legal framework, the question we consider is: did the district
court abuse its discretion by concluding that Leal’s claims of constitutional
violations were frivolous because further DNA testing of the evidence would not
create serious doubt as to Leal’s guilt of capital murder?
                                        III
       Leal argues that the district court made flawed legal conclusions as to the
frivolous nature of the Amended Complaint because that court “failed to consider

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                                  No. 11-70020

the potentially exculpatory nature of the sought-after DNA tests.” Appellant’s
Br. 11. Leal also asserts that the district court’s conclusions were erroneous
because that court had refused to consider evidence that established “the
unreliability of the prosecution’s trial evidence.” Id. We disagree.
      Leal’s Amended Complaint alleges that, although he was convicted of
capital murder on an indictment that alleged sexual assault and kidnapping, the
jury’s verdict did not specify on which allegation the jury had based its verdict
and death sentence. Due to the indictment’s lack of specificity, Leal argues that
access to the requested evidence for DNA testing is paramount as “there was
virtually no evidence of kidnapping and the prosecution rested its case largely
on the allegation of sexual assault.” Am. Compl. ¶13. The Amended Complaint
asserts that “there is a reasonable probability” that Leal could establish his
innocence of the sexual assault allegation, and, therefore, the capital murder
charge, if given access to the requested evidence. Id. at ¶ 16. Leal also asserts
that “without [the state’s] DNA testimony, there was no reliable evidence that
[ ]Leal sexually assaulted the victim.” Id. at ¶ 17. But these assertions are
based on a distorted view of evidence contained in the record.
      Uncontested evidence in the record belies the claim that without the DNA
evidence sought by Leal there is “no reliable evidence that [ ]Leal sexually
assaulted the victim.” Id. (emphasis added). Even when one disregards certain
evidence that Leal now contests or seeks for further testing, the evidence
establishes that the night on which Sauceda was sexually assaulted and slain:
(1) Leal carried an intoxicated semi-conscious Sauceda into his car; (2) when
Leal placed Sauceda in his car she was clothed; (3) when Sauceda’s body was
discovered she was nude; (4) Leal was the last known individual to see Sauceda
alive; (5) Leal confessed to police and his brother that he had killed Sauceda; (6)
when Sauceda’s body was discovered there was a stick about fourteen to sixteen
inches long, with a screw at the end of it, protruding from Sauceda’s vagina; (7)

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                                       No. 11-70020

a piece of Sauceda’s bloodied clothing was located at Leal’s home; and, (8) under
Texas law, sexual assault may be committed by penetration with any object. See
Leal v. State, 303 S.W.3d at 301.
       Regardless of whether further DNA tests reveal that the blood on Leal’s
clothing was not Sauceda’s, this would not disprove that Leal sexually assaulted
Sauceda with a piece of wood.            In fact, the contested DNA evidence that
potentially links Sauceda’s bodily fluids to the stains on the plaintiff’s underwear
had limited significance for the State’s charge that Leal had killed Sauceda
while penetrating, or attempting to penetrate, Sauceda’s vagina with a piece of
wood. The facts established at trial show that the significance of the bloody
underwear was dwarfed by other evidence that demonstrated Leal sexually
assaulted Sauceda with the piece of wood.6 Accordingly, the district court did
not err by concluding that further DNA testing of Leal’s underwear would not
significantly exculpate him of the capital murder charge.7 Nor did the district
court err by determining that Leal would not be deprived of any constitutionally


       6
         On appeal, Leal argues that the district court mischaracterized and erroneously relied
on evidence from the trial that relates to bite marks found on Sauceda’s body and luminol tests
that found the presence of blood inside Leal’s car. Even if the district court should not have
relied on this evidence, the remaining evidence permits for the conclusion that Leal sexually
assaulted Sauceda.
       7
          Leal further argues that the district court twice erred by misapplying the Supreme
Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994). He argues first that the district
court incorrectly relied on Heck to discount evidence that arose after trial that would, Leal
asserts, tend to exonerate him. Specifically, Leal points to evidence undermining the
reliability of bite-mark evidence and testimony from Leal’s parents suggesting that his mother
had been responsible for bringing Sauceda’s shirt into the home. Despite this evidence, the
case against Leal for capital murder is sufficiently overwhelming that it would not be
undermined by new DNA testing of the evidence sought by Leal. Second, Leal argues that the
district court incorrectly applied Heck to conclude that his Fourth Amendment claim was
barred. See Garcia v. Sanchez, 2011 WL 2489961, at *16. It is clear from the district court’s
opinion, however, that it treated the Fourth Amendment claim as barred only insofar as it
went beyond a Skinner claim for access to evidence for testing. Leal concedes that there is “no
material distinction” between his Fourth Amendment claim and a Skinner claim. Appellant’s
Br. 27. The district court did not err by enforcing the very boundaries Leal concedes.

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                                     No. 11-70020

protected liberty or property interest by virtue of the State’s continued refusal
to release Leal’s clothing for further DNA testing. See Osborne, 129 S. Ct. at
2320. The district court did not abuse its discretion by concluding that Leal’s §
1983 claim was frivolous because the claim has no arguable basis in fact or law,
and the claim is based on a theory completely without merit. Samford, 562 F.3d
at 678.8
                                            IV
       In addition to his § 1983 claim, Leal has moved for a stay of execution and
temporary restraining order that would “prevent[ ] the Texas Department of
Criminal Justice from executing him until this appeal has been resolved.”9
       We consider four factors in determining whether a stay should issue:
       (1) whether the movant has made a showing of likelihood of success
       on the merits, (2) whether the movant has made a showing of
       irreparable injury if the stay is not granted, (3) whether the
       granting of the stay would substantially harm the other parties, and
       (4) whether the granting of the stay would serve the public interest.

Herrera v. Collins, 954 F.2d 1029, 1033 (5th Cir. 1992) (citation omitted). In a
capital case, the movant is not always required to show a probability of success
on the merits, but “‘he must present a substantial case on the merits when a
serious legal question is involved and show that the balance of the equities [i.e.,
the other three factors] weighs heavily in favor of granting a stay.’” White v.
Collins, 959 F.2d 1319, 1322 (5th Cir. 1992) (alteration in original) (quoting


      8
        Leal’s Amended Complaint also alleges that there was “virtually no evidence of
kidnapping.” While the district court’s opinion addressed this argument, our holding on the
sexual assault charge forecloses the need to address this assertion.
      9
         Although Leal’s motion ostensibly seeks two separate forms of relief, see Mot. for
Temporary Restraining Order and Stay of Execution, we note that Leal is seeking one
outcome—a delay in his execution until decision of his § 1983 appeal. We apply the same
substantive test under either theory of relief. See, e.g., Weng v. United States Attorney
General, 287 F.3d 1335, 1338 n.5 (11th Cir. 2002), abrogated on other grounds by Nken v.
Holder, 129 S. Ct. 1749 (2009).

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                                  No. 11-70020

Celestine v. Butler, 823 F.2d 74, 77 (5th Cir. 1987)), cert. denied, 503 U.S. 1001
(1992); see also Ruiz v. Estelle, 666 F.2d 854, 856–57 (5th Cir. 1982).
      The gravamen of Leal’s claim in favor of a stay is that the DNA evidence
sought in his § 1983 action will “establish his innocence of capital murder.” Mot.
for Temporary Restraining Order and Stay of Execution 8. For the reasons
described in Section III above, we find otherwise. Leal’s arguments in support
of the remaining factors fail to outweigh his inability to present a substantial
case upon which equitable relief may be granted. The balance of equities weighs
against granting Leal’s combined motion for a stay of execution and temporary
restraining order.
                                        V
      Accordingly, we AFFIRM the district court’s order dismissing Leal’s
Amended Complaint. We DENY his motion for a stay of execution and his
request for a TRO. We GRANT his motions to expedite and to proceed IFP.




                                        9
