     Case: 20-70009      Document: 00515451509         Page: 1    Date Filed: 06/12/2020




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

                                      No. 20-70009                              FILED
                                                                            June 12, 2020
                                                                           Lyle W. Cayce
RUBEN GUTIERREZ,                                                                Clerk

              Plaintiff - Appellee

v.

LUIS V. SAENZ; FELIX SAUCEDA, Chief, Brownsville Police Department;
BRYAN COLLIER, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE; LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION;
BILLY LEWIS, Warden, Texas Department of Criminal Justice, Huntsville
Unit,

              Defendants - Appellants



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:19-CV-185


Before SOUTHWICK, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       On June 9, 2020, the district court granted Texas inmate Ruben
Gutierrez’s stay of execution.         The Texas Attorney General’s Office has




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 20-70009
appealed and moves this court to vacate the stay so that Gutierrez may be
executed as scheduled on June 16, 2020. The State’s motion is GRANTED.


              FACTUAL AND PROCEDURAL BACKGROUND
      In 1999, Gutierrez was convicted of the murder of Escolastica Harrison
and was sentenced to death. Details of the offense are set out in Gutierrez v.
Stephens, 590 F. App’x 371, 373 (5th Cir. 2014). Important for one of our issues
is that there was evidence that Gutierrez was one of two men inside the
decedent’s home when she was murdered, and Gutierrez could be found guilty
of capital murder even if he was only an accomplice. Id. at 373. Gutierrez’s
conviction was affirmed on direct appeal. Gutierrez v. State, No. AP-73,462
(Tex. Crim. App. Jan. 16, 2002) (not designated for publication). The Court of
Criminal Appeals’ most recent denial of post-conviction relief was on June 12,
2020, when it rejected an application to file a second subsequent writ
application and also denied a stay of execution. Ex parte Gutierrez, No. WR-
59,552-05 (Tex. Crim. App. June 12, 2020) (not designated for publication).
      On September 26, 2019, Gutierrez filed a complaint under 42 U.S.C.
§ 1983, in the United States District Court for the Southern District of Texas.
He sought DNA testing of certain evidence. The operative amended complaint
was filed on April 22, 2020. He challenged the constitutionality of Chapter 64
of the Texas Code of Criminal Procedure, and of the protocols under which it
was applied. He also sought to override the Texas Department of Criminal
Justice’s policy refusing to allow chaplains to accompany inmates into the
execution chamber itself. The State filed a motion to dismiss, which was
granted only in part. That court later entered a stay of execution. The State
appealed.




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                                  No. 20-70009
                                  DISCUSSION
      In granting the stay, the district court concluded that Gutierrez made a
showing of likelihood of success on the merits “of at least one of his DNA or
[chaplain] claims.” We review a district court’s grant of a stay of execution for
abuse of discretion. Sepulvado v. Jindal, 729 F.3d 413, 420 (5th Cir. 2013).
      When deciding whether to stay an execution, the district court is to
consider four factors: “(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Green v. Thaler, 699 F.3d 404, 411 (5th Cir.
2012) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). The first two factors
are the most significant for deciding a stay. Nken, 556 U.S. at 434.
      On appeal, the State argues the district court abused its discretion in
granting a stay because Gutierrez’s DNA claims are time-barred and meritless
and Gutierrez’s chaplain claims are meritless.


I.    DNA claims
      The parties dispute whether Gutierrez’s DNA claims are timely. We
need not answer that question because of our conclusion that the DNA claims
are unlikely to succeed on the merits.
      There is no constitutional right for a convicted person to obtain evidence
for postconviction DNA testing, but a right to obtain DNA testing may be
created by state law. District Attorney’s Office for the Third Judicial Dist. v.
Osborne, 557 U.S. 52, 67–73 (2009). Because Texas has created such a right,
its procedures for a convicted defendant to obtain this right must satisfy due
process. Id. at 72–74.


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                                 No. 20-70009
      Texas’s procedure for inmates to obtain DNA testing includes a
requirement that they show by a preponderance of the evidence that they
would not have been convicted if exculpatory results had been obtained
through DNA testing. TEX. CODE CRIM. P. ch. 64.03(a)(2)(A). Gutierrez argues
Chapter 64 is facially violative of due process. According to Gutierrez, this
preponderance-of-the-evidence standard is “unusually and unreasonably
high.” He argues the materiality standard should be lower. Although the
Court in Osborne did not resolve the appropriate materiality standard, it did
approve of Alaska’s postconviction procedures, as applied to DNA testing,
requiring that defendants seeking access to DNA evidence must show the
evidence is “sufficiently material.” Osborne, 557 U.S. at 70. States use varying
materiality standards. We see no constitutionally relevant distinction between
what was approved in Osborne — sufficiently material — and requiring an
inmate to show materiality by a preponderance of the evidence.
      Gutierrez further argues that Chapter 64 is fundamentally unfair as
applied by the Court of Criminal Appeals. According to Gutierrez, that court
interprets Chapter 64 to preclude DNA testing if the proposed testing would
simply “muddy the waters.” Gutierrez contends this interpretation heightens
the fundamental unfairness of the statutory standard itself. Yet the Supreme
Court allowed denial of DNA testing unless the results were likely to be
“conclusive.” Id. at 65, 70.
      The problem for Gutierrez is that he was convicted without jurors
needing to decide whether he was the actual murderer or an accomplice. He
confessed to being inside the home. The jury was permitted to find Gutierrez
guilty “of capital murder if, among other things, it found that appellant ‘acting
alone or as a party’ with the accomplice intentionally caused the victim’s
death.” Gutierrez, 590 F. App’x at 374. A search for DNA on the victim’s
clothing and elsewhere would not reasonably lead to evidence that would
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                                  No. 20-70009
exclude Gutierrez as an accomplice. In his briefing before this court, he wholly
failed to show how the DNA testing he requests would be “sufficiently
material” to negate his guilt thus justifying the pursuit of DNA testing at this
late date. Therefore, because Gutierrez has not shown by a preponderance of
the evidence that he would not have been convicted if exculpatory results were
obtained, he cannot prevail.
       Gutierrez failed to show that the Court of Criminal Appeals’ application
of Chapter 64 as to him was fundamentally unfair. We conclude that Chapter
64 both facially and as applied by the Court of Criminal Appeals comports with
the Supreme Court’s decision in Osborne. Consequently, this claim is likely to
fail on the merits and cannot justify a stay of execution.


II.    Chaplain claims
       Gutierrez challenges the TDCJ’s policy disallowing chaplains and
spiritual advisors in the execution room itself. The policy, revised in 2019,
provides that on the day of execution the death row inmate may visit with a
TDCJ chaplain and a minister or spiritual advisor “who has the appropriate
credentials,” but chaplains and spiritual advisors are not permitted in the
execution chamber. As part of the 2019 revised execution policy, “[o]nly TDCJ
security personnel shall be permitted in the execution chamber.” According to
Gutierrez, this policy violates his rights under the Establishment Clause, the
Free Exercise Clause, and the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”). We will follow that order in our analysis.
       A.    Establishment Clause claim
       In his complaint, Gutierrez argues TDCJ’s execution policy prohibiting
a chaplain from being present in the execution chamber violates the
Establishment Clause because it is not neutral between religion and non-
religion and inhibits the practice of religious beliefs.
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                                 No. 20-70009
      The parties do not on agree as to which constitutional standard is
applicable.    Gutierrez argues this policy should be reviewed under strict
scrutiny. The State argues we should apply a test of reasonableness derived
from Turner v. Safley, 482 U.S. 78 (1987). In Turner, the Supreme Court held
that “when a prison regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological
interests.” Turner, 482 U.S. at 89. The regulations reviewed by the Turner
Court included restrictions on inmate-to-inmate mail and inmates’ right to
marry. Id. at 81. We conclude Turner applies.
      Under Turner, we consider:
      (1) whether a “valid, rational connection [exists] between the
      prison regulation and the legitimate governmental interest put
      forward to justify it,” (2) whether there exist “alternative means of
      exercising the fundamental right that remain open to prison
      inmates,” (3) what “impact accommodation of the asserted
      constitutional right will have on guards and other inmates, and on
      the allocation of prison resources generally,” and (4) whether there
      is an “absence of ready alternatives” to the regulation in question.
Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (quoting Turner, 482 U.S.
at 89–90). Gutierrez fails to make a strong showing of a likelihood of success
in establishing that TDCJ’s execution policy is not “reasonably related to
legitimate penological interests.” Turner, 482 U.S. at 89.
      B.      Free Exercise Clause claim
      Gutierrez’s claim that TDCJ’s execution policy violates the Free Exercise
Clause is largely a recitation of his Establishment Clause claim.          Again,
Gutierrez argues TDCJ’s policy cannot survive strict scrutiny.            Circuit
precedent, as the district court agreed in this case, requires application of
Turner to a Free Exercise claim. See Brown, 929 F.3d at 232–42. We have
identified the factors in our discussion of the Establishment Clause, and they
similarly prevent success for Gutierrez’s Free Exercise claim.

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                                  No. 20-70009
        Among Gutierrez’s arguments is that the prior policy, which would
satisfy his interest, allowed only Christian or Muslim spiritual advisors into
the execution chamber. See Murphy v. Collier, 139 S. Ct. 1475 (2019). There
was a suggestion by one justice that what would end the Equal Protection claim
would be to prohibit any ministers or religious advisors into the execution
chamber itself but permit all to be in the viewing room.         Id. at 1475–76
(Kavanaugh, J., concurring to grant of a stay). The TDCJ decided to take that
advice.      One justice’s views are not precedent, but we conclude that the
concurring opinion made a valid appraisal of the issue. Gutierrez is unlikely
to establish that TDCJ’s execution policy is not “reasonably related to
legitimate penological interests.” Turner, 482 U.S. at 89.
        Having denied the legal argument, we acknowledge the strong religious
arguments made by Gutierrez and also in an amicus brief from the Texas
Catholic Conference of Bishops. We can apply only the legal standards and
have concluded that what the State has done here satisfies those.
        C.     RLUIPA claim
        The RLUIPA provides that the government shall not “impose a
substantial burden” on an inmate’s religious exercise, unless the government
demonstrates that imposition of the burden on that person “(1) is in
furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest.” 42
U.S.C. § 2000cc-1(a). Gutierrez bears the burden of demonstrating the policy
imposes a “substantial burden” on his religious exercise. Adkins, 393 F.3d at
567.
        Gutierrez argues that TDCJ’s policy disallowing chaplains and spiritual
advisors in the execution chambers is a substantial burden on his religious
exercise because the policy prohibits him from receiving a Christian chaplain’s
guidance just before death. Yet Gutierrez has failed to show that this policy
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                                  No. 20-70009
“creates a ‘substantial burden’ on a religious exercise [that] truly pressures the
adherent to significantly modify his religious behavior and significantly violate
his religious beliefs.” Id. at 570. Perhaps Gutierrez is being denied the final
measure of spiritual comfort that might be available. As important as that is,
government action does not rise to the level of a substantial burden on religious
exercise if it merely prevents the adherent from enjoying some benefit that is
not otherwise generally available. Id.
        We conclude that Gutierrez does not have a reasonable likelihood of
success on any of his First Amendment claims or under RLUIPA.


III.    Remaining stay factors
        Because Gutierrez fails to show likelihood of success on the merits as to
his DNA and chaplain claims, he fails to satisfy the first factor warranting a
stay of execution. As to the second factor, the possibility of irreparable injury
in a capital case weighs heavily in the movant’s favor. O’Bryan v. Estelle, 691
F.2d 706, 708 (5th Cir. 1982). Nevertheless, there comes a time when the legal
issues “have been sufficiently litigated and relitigated so that the law must be
allowed to run its course.” Id. Given the extent of Gutierrez’s litigation and
re-litigation of claims in both state and federal court, we conclude he has not
made a showing of irreparable injury. Because the first two, and most critical
factors do not weigh in Gutierrez’s favor, and neither do the remaining two, we
conclude the district court abused its discretion in granting Gutierrez’s motion
to stay his execution.
        The motion to vacate the stay of execution is GRANTED.




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