Take the Fifth

• Dean v. Phatak, 24-20503, appeal from S.D. Tex.
  • Willett, J. (Elrod, Richman, Willett) (no oral argument), qualified immunity
  • Vacating denial of qualified immunity summary judgment motion by defendant assistant medical examiner, and remanding for reconsideration under correct standard for deliberate indifference.
  • Noel Dean sued Dr. Darshan Phatak under 42 U.S.C. § 1983, alleging that Phatak deliberately fabricated an autopsy report that helped lead to Dean’s murder indictment and prosecution. The underlying events date to 2007, when Dean’s wife died of a gunshot wound and Phatak, an assistant medical examiner, originally classified the death as a homicide based on his interpretation of the evidence. After trial testimony and photographic overlays suggested the opposite, the autopsy report was amended to “undetermined” and the charges against Dean were dismissed. Dean then sued Phatak, and the district court denied Phatak’s motion for summary judgment on qualified immunity grounds. Phatak appealed for a second time, following an earlier Fifth Circuit opinion that vacated the district court’s first ruling for relying on pleading allegations instead of the summary-judgment record.
  • On this interlocutory appeal, the Fifth Circuit again vacated the denial of summary judgment and remanded for the district court to apply the correct legal standard. The court explained that qualified immunity protects officials unless a rational juror could conclude that the official “intentionally misstated his finding” (meaning knowingly reported a conclusion he did not actually reach). The panel emphasized that the district court applied a more lenient “deliberate indifference” standard—which is insufficient for a constitutional fabrication claim—and failed to focus on whether Phatak actually knew his reported conclusion was false. The Fifth Circuit clarified that negligence or gross negligence in examining evidence does not equate to intentional fabrication required to overcome qualified immunity.
  • The court also addressed the separate constitutional theories: it rejected Dean’s Fourth Amendment fabrication claim because Dean had not shown Phatak’s report was prepared for inclusion in the warrant application, and it rejected Dean’s Brady (suppression) claim as legally deficient because there was no suppressed exculpatory evidence. The panel reiterated that it cannot decide factual disputes in the interlocutory posture and thus cannot determine for itself whether Phatak intentionally misrepresented his findings. Because the district court applied the wrong mental-state standard and failed to resolve whether a reasonable juror could conclude intentional misstatement, the Fifth Circuit vacated the denial of summary judgment once more and remanded for reconsideration under the correct legal framework.

• Alvarez v. Guerrero, 18-70001, appeal from S.D. Tex.
  • Jones, J. (Elrod, Jones, Richman) (no oral argument), Richman, J., dissenting; habeas corpus, ineffective assistance of counsel
  • Affirming denial of death-sentenced inmate’s habeas petition based in part on IAC claim for sleeping counsel.
  • The Fifth Circuit considered Juan Carlos Alvarez’s appeal from denial of his federal habeas petition challenging his 1998 Texas capital murder conviction and death sentence for two gang-related shootings. The court had granted a Certificate of Appealability on three issues: (1) whether Alvarez was deprived of the effective assistance of counsel because one of his lawyers allegedly fell asleep during trial, (2) whether his trial lawyers were ineffective for failing to develop additional mitigation evidence, and (3) whether alleged “tainted” DNA evidence from the Harris County Crime Lab warranted relief. After recounting the facts—including eyewitness and forensic evidence linking Alvarez to the shootings and his own admissions—the panel affirmed the district court’s denial of relief, noting the “overwhelming evidence of guilt.”
  • The court’s core analysis focused on the “sleeping lawyer” claim, which Alvarez argued violated the Sixth Amendment. The panel held that the claim was subject to heightened deference under the Antiterrorism and Effective Death Penalty Act (AEDPA) because the state courts had adjudicated it on the merits. The court explained that a habeas petitioner must show the state decision was an “unreasonable application of clearly established federal law.” The panel found no controlling Supreme Court decision holding that counsel’s intermittent dozing while co-counsel remained active automatically triggered a constitutional violation and emphasized that established law requires showing counsel’s performance was so deficient that it undermined confidence in the proceedings.
  • On the ineffectiveness standard, the court reasoned that even if counsel’s performance were imperfect, the record did not demonstrate the kind of pervasive deficiency needed for habeas relief, especially given the presence of two lawyers and significant evidence presented at trial. The panel similarly rejected Alvarez’s claims that counsel should have developed further mitigation evidence, finding no unreasonable application of federal law by the state courts. On the DNA evidence, the court agreed with the district court that later independent retesting confirmed blood on Alvarez’s shotgun matched a victim, and thus there was no showing of prosecutorial misconduct or material prejudice from the original lab results.
  • Throughout its analysis, the Fifth Circuit underscored the strict standards of habeas review under AEDPA, requiring petitioners to do “far more than show that the state court was merely wrong” and instead demonstrate error “beyond the realm of possibility that a fairminded jurist could agree with the state court.” The panel held Alvarez failed to meet this demanding standard on all three issues. In affirming the district court, the opinion reiterated that the habeas writ is “a guard against extreme malfunctions in the state criminal justice systems,” not a substitute for routine appellate error correction.
  • Judge Richman dissented. Judge Richman opens her dissent by identifying what she views as “unrebutted evidence” demonstrating that Alvarez’s lead trial counsel “fell asleep, more than once, during direct examinations of witnesses.” She stresses that where counsel’s performance is so deficient that it “undermine[s] confidence in the outcome” of a capital trial, a Sixth Amendment violation has occurred. Judge Richman frames this not as a minor error but as a denial of counsel at a critical stage, asserting that no reasonable defense occurs while an attorney is asleep or unresponsive.
  • Judge Richman critiques the majority for defaulting to Strickland v. Washington’s two-prong ineffective assistance standard (requiring both deficient performance and prejudice) without adequately considering the threshold that certain circumstances warrant presuming prejudice under United States v. Cronic. She emphasizes that Cronic applies where the “circumstances that are so likely to prejudice the accused” make detailed inquiry unnecessary. Her point is that a lawyer’s repeated unconsciousness in a capital trial is precisely the sort of circumstance where prejudice should be presumed.
  • Judge Richman then dissects the trial record and juror affidavits. She notes jurors recounted the defense as lacking “any real effort” and explicitly described moments when counsel was non-responsive until “he had to wake Mr. Reyes up by repeating his name when it was his turn to…” speak. These firsthand accounts, she argues, speak directly to counsel’s failure to function as a lawyer during critical portions of testimony and cross-examination.
  • Judge Richman devotes a substantial portion of her dissent to criticizing the majority’s application of AEDPA’s deferential review standards. She contends that the court construes “clearly established Federal law” too narrowly, suggesting that general Supreme Court principles about counsel’s role should qualify. She stresses that under AEDPA, “general legal principles can constitute clearly established law … so long as they are holdings of th[e Supreme] Court,” and that the majority’s insistence on an exact analog case is inconsistent with Supreme Court precedent.
  • Judge Richman’s dissent also tackles the State’s contention—taken up by the majority—that juror affidavits cannot be considered under Federal Rule of Evidence 606(b). Judge Richman rejects this argument, explaining that the Rule does not bar inquiry into objective events (e.g., counsel’s behavior) that occurred during trial and that such testimony is critical to assessing prejudice under Strickland or the presumption under Cronic. Her analysis underscores her broader theme: it is not a “plainly meritless” claim, but one with real factual support that “undermine[s] confidence” in verdict reliability.
  • At the tail end of her dissent, Judge Richman addresses remedial options. She argues that because the evidence supporting the sleeping-lawyer claim emerged late (including counsel’s own affidavit admitting possible sleeping), Alvarez is entitled to a stay and abeyance for further state proceedings or, if federal habeas review is proper, outright relief on this one claim. She notes that the delay was not attributable to petitioner but to counsel’s withholding of relevant information, and that the claim is far from “plainly meritless.” For these reasons, she would grant habeas relief as to the sleeping-lawyer issue and does not reach the other merits claims.

Unpublished decisions

• U.S. v. Garcia, 25-10650, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Garcia, 25-10701, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Rodriguez-Portillo, 25-20046, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Law, 25-30214, appeal from W.D. La.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming 20-month sentence on conviction of aiding and assisting in making and subscribing a false return.

• U.S. v. Graham, 24-30687, appeal from W.D. La.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 96-month sentence on conviction of conspiracy to distribute and possess with intent to distribute methamphetamine.

• Rosa v. McFarling, 24-40695, c/w Rosa v. Hill, 24-40152, appeal from E.D. Tex.
  • per curiam (Graves, Ho, Douglas) (no oral argument), sec. 1983, qualified immunity
  • Dismissing as frivolous appeal from dismissal of sec. 1983 claims.

• U.S. v. Coleman, 25-50104, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Barron-Vasquez, 25-50106, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Carrasco-Martinez, 25-50334, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Harris, 25-60017, appeal from S.D. Miss.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentencing
  • Dismissing under plea agreement’s appeal-waiver an appeal of the 240-month sentence on conviction of possession with intent to distribute methamphetamine.

• Zuniga v. Bondi, 25-60096, petition for review of BIA order
  • per curiam (Barksdale, Graves, Duncan) (no oral argument); immigration
  • Denying Mexican citizen’s petition for review of BIA order affirming an Immigration Judge’s concluding his Oklahoma conviction for possession of cocaine with intent to distribute, in violation of Okla. Stat. Ann. tit. 63, § 2-401(A)(1), constituted an aggravated felony.

• Rubio-Espinal v. Bondi, 25-60218, petition for review of BIA order
  • per curiam (Barksdale, Graves, Duncan) (no oral argument), immigration
  • Denying in part and dismissing in part Salvadoran citizen’s petition for review of BIA order affirming, without an opinion, the results of an Immigration Judge’s decision denying his motion seeking reopening and rescission of a 2006 in absentia order of removal.

• Freeman v. City of Jackson, 25-60318, appeal from S.D. Miss.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), sec. 1983
  • Affirming dismissal of plaintiff’s claims.