Case: 19-70008     Document: 00515543871          Page: 1    Date Filed: 08/27/2020




            United States Court of Appeals
                 for the Fifth Circuit                                United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                       August 27, 2020
                                 No. 19-70008
                                                                        Lyle W. Cayce
                                                                             Clerk
 Chuong Duong Tong,

                                                         Petitioner—Appellant,

                                     versus

 Bobby Lumpkin, Director, Texas Department of
 Criminal Justice, Correctional Institutions Division,

                                                         Respondent—Appellee.


                 Appeal from the United States District Court
                     for the Southern District of Texas
                          USDC No. 4:10-CV-2355


 Before Smith, Higginson, and Duncan, Circuit Judges.
 Per Curiam:*
         Chuong Duong Tong, a Texas death row inmate, seeks an additional
 certificate of appealability (COA) following the district court’s denial of his
 petition for federal habeas relief under 28 U.S.C. § 2254. Tong has already
 been granted a COA to appeal his claim concerning the jury selection process


        *
          Pursuant to 5th Circuit Rule 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 opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-70008     Document: 00515543871          Page: 2    Date Filed: 08/27/2020




                                  No. 19-70008


 during voir dire (the “voir dire claim”), which is pending before this panel.
 Tong now seeks permission to raise additional claims on appeal—
 specifically, that the prosecution suppressed material impeachment evidence
 concerning two of its witnesses, Stephen Mayeros and Hoa Huu Than, a/k/a
 “Too Short” (respectively, the “Mayeros Brady claim” and the “Too Short
 Brady claim”), and that his trial counsel were ineffective for failing to
 investigate and present mitigating evidence (the “Wiggins claim”).
        We DENY Tong a COA as to both Brady claims. A complete
 evaluation of the Wiggins claim, however, must await limited remand to the
 district court. That court denied Tong’s request to fund investigation of
 additional mitigation evidence, see 18 U.S.C. § 3599(f), but it used a standard
 the Supreme Court has now abrogated. See Ayestas v. Davis (Ayestas II), 138
 S. Ct. 1080, 1093 (2018) (abrogating “substantial need” standard for § 3599
 requests used in Ayestas v. Stephens, 817 F.3d 888, 895–96 (5th Cir. 2016)). A
 limited remand is therefore necessary so that the district court may evaluate
 Tong’s funding request under the current standard. We therefore VACATE
 the judgment denying Tong’s funding request, REMAND for
 reconsideration under Ayestas II, and STAY further proceedings before this
 panel on Tong’s Wiggins claim pending the district court’s decision.
                                       I.

         A jury convicted Tong of capital murder and sentenced him to death
 for killing Houston police officer Tony Trinh in 1997. The Texas Court of
 Criminal Appeals (TCCA) affirmed his conviction and sentence on direct
 appeal. Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000), cert. denied, 532
 U.S. 1053 (2001). Nine years later, the TCCA denied Tong’s state habeas
 application. Ex Parte Tong, No. WR-71377-01, 2009 WL 1900372 (Tex. Crim.
 App. July 1, 2009).




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                                   No. 19-70008


        Tong timely filed his initial federal habeas petition on July 1, 2010, and
 an amended petition on September 13, 2011. In 2012, the district court stayed
 proceedings to allow Tong to file a subsequent habeas application in state
 court. The TCCA dismissed that application as an abuse of the writ without
 considering the merits. Ex Parte Chuong Duong Tong, No. WR-71,377-02,
 2013 WL 2285455 (Tex. Crim. App. May 22, 2013). Tong returned to district
 court, where he was granted new counsel in January 2014 in light of Trevino
 v. Thaler, 133 S. Ct. 1911 (2013). Tong subsequently moved under 18 U.S.C.
 § 3599 for funding to investigate possible mitigation evidence not presented
 by trial counsel, and for a Vietnamese interpreter to assist with the effort, but
 the district court denied those requests in September 2014.
       Tong filed a 232-page second amended federal habeas petition on
 October 17, 2014. This petition presented, inter alia, (1) the voir dire claim;
 (2) the two Brady claims; and (3) the Wiggins claim. Tong also renewed his §
 3599 request for funding to investigate and develop his Wiggins claim.
       On September 30, 2016, in a detailed 78-page ruling, the district court
 granted in part and denied in part the State’s motion for summary judgment,
 denied in part Tong’s habeas petition, and granted an evidentiary hearing on
 Tong’s Brady claims. Although Tong did not request a COA, the district
 granted one as to the voir dire claim. In 2017, the court held a two-day
 evidentiary hearing on the Brady claims, and then, on March 22, 2019, denied
 habeas relief and sua sponte denied a COA on those claims. Tong timely
 appealed.
        In addition to appealing the denial of his voir dire claim, for which he
 has been granted a COA, Tong now separately moves for an additional COA
 on his two Brady claims and his Wiggins claim. Tong also asks for a remand
 so that the district court can reconsider its denial of his § 3599 funding
 request under Ayestas II.




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                                        No. 19-70008


                                             II.
       “A COA is necessary to appeal the denial of federal habeas relief, 28
 U.S.C. § 2253(c)(1), and the requirement is jurisdictional.” Gonzalez v.
 Davis, 924 F.3d 236, 241 (5th Cir. 2019) (citing Miller-El v. Cockrell, 537 U.S.
 322, 335–36 (2003)).1 To obtain a COA, a petitioner must make “a
 substantial showing of the denial of a constitutional right.” 28 U.S.C.
 § 2253(c)(2); see Miller-El, 537 U.S. at 336. When the district court rejects a
 habeas petition on substantive grounds, the petitioner must demonstrate
 “that jurists of reason could disagree with the district court’s resolution of
 his constitutional claims or that jurists could conclude the issues presented
 are adequate to deserve encouragement to proceed further.” Id. at 327. When
 the district court rejects a habeas petition on procedural grounds, the
 petitioner must demonstrate “that jurists of reason would find it debatable
 whether the petition states a valid claim of the denial of a constitutional right
 and that jurists of reason would find it debatable whether the district court
 was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
 (2000) (emphasis added).




         1
          Tong evidently did not request a COA from the district court on any of his claims,
 which would normally deprive us of jurisdiction to consider his COA requests. See, e.g.,
 Gonzales, 924 F.3d at 247 (stating “this court lacks jurisdiction to entertain an issue for a
 COA on which no request for a COA has been made in the district court”) (citing Black v.
 Davis, 902 F.3d 541, 545 (5th Cir. 2018)); see also Goodwin v. Johnson, 224 F.3d 450, 459
 n.6 (5th Cir. 2000) (“[B]efore we may consider a petitioner’s application for a COA on a
 particular issue, that petitioner must first submit his request to the district court and have
 that request denied.”). Nonetheless, we do have jurisdiction to consider Tong’s COA
 requests, because the district court sua sponte denied a COA on his Brady and Wiggins
 claims. See Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir. 2011) (“[T]he lack of a ruling on
 a COA in the district court causes this court to be without jurisdiction to consider the
 appeal.” (quoting Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998))).




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                                        No. 19-70008


                                             III.
                                              A.
         We first consider Tong’s Mayeros Brady claim. Because reasonable
 jurists would not debate the district court’s rejection of this claim, we deny
 Tong’s COA request.
       To establish a Brady violation, Tong must show “that (1) the
 prosecution suppressed evidence, (2) the evidence was favorable to the
 defense, and (3) the evidence was material.” LaCaze v. Warden, 645 F.3d
 728, 735 (5th Cir. 2011) (citing Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir.
 1994)); see generally Brady v. Maryland, 373 U.S. 83 (1963). Tong claims the
 State failed to disclose evidence that it procured Mayeros’ testimony in
 exchange for favorable treatment in Mayeros’ pending criminal case on
 charges of driving with a suspended license. After holding a two-day
 evidentiary hearing,2 the district court resolved this Brady claim at prong one,
 finding that no deal was made with Mayeros and that Mayeros had not been
 given any implied promises or assurances by officers to prompt his testimony.
 The district court also found that Mayeros’ pending charges were dropped
 due to his defense attorney’s efforts and had nothing to do with his testimony
 in Tong’s case. In light of these findings, which are not clearly erroneous, no
 reasonable jurist could disagree with the district court’s rejection of Tong’s




         2
            The State argues that the district court erred in holding the evidentiary hearing
 in the first place because: (1) this Brady claim was adjudicated on the merits in state court;
 and (2) Tong failed to develop the factual basis for this claim in state court. See Cullen v.
 Pinholster, 563 U.S. 170, 186 (2011); 28 U.S.C. § 2254(e)(2). Because the district court
 denied Tong’s petition on other grounds—grounds we find amply sufficient to foreclose a
 COA—we need not address the State’s alternative arguments for denying Tong’s COA
 request.




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                                        No. 19-70008


 Mayeros Brady claim. We therefore deny Tong’s application for a COA on
 this issue.
                                              B.
         Turning to Tong’s Too Short Brady claim, we also conclude that
 jurists of reason would not debate the correctness of the district court’s
 rejection of this claim and therefore deny a COA.
        Too Short was Tong’s roommate at the time of the crime. Tong
 asserts that Too Short sought reward money for information provided by his
 girlfriend that led to Tong’s arrest, lied under oath, served regularly as a
 police informant, and received favorable treatment for the sale of the victim’s
 jewelry. He also claims the police kidnapped Too Short before he gave his
 statement. All this information, Tong contends, the State suppressed in
 violation of Brady.
        Following its evidentiary hearing,3 the district court found Tong had
 no basis for any of these assertions. It found no evidence that Too Short knew
 of his girlfriend’s cooperation or potential reward. Nor did the court find
 evidence of an express or implied promise of favorable treatment, which Too
 Short and the prosecutors who testified at the hearing all denied. It found
 Too Short was not kidnapped by police, and, finally, it rejected Tong’s only
 factual basis for arguing that Too Short was a paid informant. On appeal,
 Tong continues to level the same conclusory arguments as he did in the




         3
            The State presses the same arguments in response to this claim as it did against
 the Mayeros Brady claim, namely that the evidentiary hearing was unwarranted because
 this claim was adjudicated in state court and because Tong failed to develop the factual
 basis for this claim in state court. Again, however, because we find that the district court’s
 grounds for rejecting Tong’s claim suffice to foreclose a COA, we need not address the
 State’s alternative arguments.




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                                      No. 19-70008


 district court concerning suppression of evidence impeaching Too Short.
 Finding no substantial showing of a constitutional violation, we deny a COA.
                                           C.
         Finally, we turn to Tong’s Wiggins claim that his trial counsel were
 ineffective for failing sufficiently to investigate and present mitigation
 evidence at the punishment phase. “To show deficiency, a defendant must
 show that counsel’s representation fell below an objective standard of
 reasonableness. And to establish prejudice, a defendant must show that there
 is a reasonable probability that, but for counsel’s unprofessional errors, the
 result of the proceeding would have been different.” Andrus v. Texas, 140 S.
 Ct. 1875, 1881 (2020) (citing Strickland v. Washington, 466 U.S. 668, 694
 (1984)) (internal citation and quotation marks omitted). In the mitigation
 context, Wiggins explains that courts must assess prejudice by “reweigh[ing]
 the evidence in aggravation against the totality of available mitigating
 evidence.” 539 U.S. at 510.
        As part of his claim, Tong argues that he has been denied the resources
 necessary to ascertain the “totality of available mitigating evidence.” Id. In
 the district court, he invoked 18 U.S.C. § 3599 to request $40,000 to hire a
 mitigation investigator and a Vietnamese interpreter to assist with further
 investigation. The district court denied the request, applying the “substantial
 need” standard which then governed in this circuit. See, e.g., Riley v. Dretke,
 362 F.3d 302, 307 (5th Cir. 2004).4 Since then, however, the Supreme Court
 has abrogated that standard, determining it was “arguably more demanding”




         4
          Tong does not need a COA to appeal the denial of his § 3599 funding request. See
 Wilkins v. Davis, 832 F.3d 547, 551–52 (5th Cir. 2016) (quoting Smith v. Dretke, 422 F.3d
 269, 288 (5th Cir. 2005)).




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                                   No. 19-70008


 than the statutory term “reasonably necessary.” Ayestas II, 138 S. Ct. at 1093;
 see 18 U.S.C. § 3599(f).
       In light of Ayestas II, we vacate the district court’s denial of Tong’s
 funding request and remand for reconsideration under the now-governing
 standard. “A district court abuses its discretion if it bases its decision on an
 erroneous view of the law.” Ayestas v. Davis, 933 F.3d 384, 388 (5th Cir.
 2019) (citing Perez v. Stephens, 745 F.3d 174, 177 (5th Cir. 2014)). Although
 the district court applied our then-governing standard to Tong’s § 3599
 request, and although the Supreme Court acknowledged in Ayestas II that
 “[t]he difference between ‘reasonably necessary’ and ‘substantially
 need[ed]’ may be small,” 138 S. Ct. at 1093, remand is appropriate to ensure
 an accurate and efficient resolution of Tong’s Wiggins claim. We express no
 opinion on how the district court should resolve Tong’s funding request,
 leaving it to the court’s sound discretion. See Wilkins, 832 F.3d at 551. In light
 of that, we will stay our consideration of Tong’s COA request on his Wiggins
 claim, pending the district court’s decision on remand.
                                       IV.
        In sum, we deny Tong’s a COA on his two Brady claims. We vacate
 the district court’s judgment denying Tong’s funding request under 18
 U.S.C. § 3599 and remand to the district court solely for the purpose of
 reconsidering that request in light of Ayestas II. Our consideration of Tong’s
 petition for a COA on his Wiggins claim is stayed pending the district court’s
 resolution of his funding request.
    COA DENIED in part; judgment VACATED in part and
 REMANDED for further proceedings consistent with this opinion.




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