Filed: Aug. 27, 2020
Latest Update: Aug. 28, 2020
Summary: 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 Sm
Summary: 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 Smi..
More
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opinion should not be published and is not precedent except under the limited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).
2
Case: 19-70008 Document: 00515543871 Page: 3 Date Filed: 08/27/2020
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.
3
Case: 19-70008 Document: 00515543871 Page: 4 Date Filed: 08/27/2020
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))).
4
Case: 19-70008 Document: 00515543871 Page: 5 Date Filed: 08/27/2020
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.
5
Case: 19-70008 Document: 00515543871 Page: 6 Date Filed: 08/27/2020
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.
6
Case: 19-70008 Document: 00515543871 Page: 7 Date Filed: 08/27/2020
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)).
7
Case: 19-70008 Document: 00515543871 Page: 8 Date Filed: 08/27/2020
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.
8
