Take the Fifth

Designated for publication

• Davis v. Guerrero, 24-70008, appeal from W.D. Tex.
  • Smith, J. (Smith, Graves, Engelhardt) (oral argument), habeas corpus, First Amendment, ineffective assistance of counsel
  • Affirming denial of habeas relief.
  • Irving Davis raped and murdered 15-year-old Melissa Medina in 2001, cutting off her fingertips to prevent DNA identification. He was convicted of capital murder and sentenced to death; the Texas Court of Criminal Appeals (“CCA”) granted a new sentencing trial. At resentencing, the State introduced evidence of Davis’s affiliation with Satanism—including books, personal writings, and drawings from his prison cell—along with expert testimony that Satanic texts advocate human sacrifice, to prove future dangerousness. Davis was again sentenced to death. After exhausting state remedies, the federal district court denied habeas relief, and the Fifth Circuit granted a certificate of appealability.
  • At issue on appeal were (1) whether the CCA’s rejection of Davis’s First Amendment claim—that introducing evidence of his Satanism violated religious liberty—was contrary to or an unreasonable application of clearly established federal law under AEDPA, specifically Dawson v. Delaware, 503 U.S. 159 (1992); and (2) whether Davis’s trial counsel rendered ineffective assistance under Strickland v. Washington by failing to investigate and present mitigating evidence at resentencing.
  • On the First Amendment claim, the court held that Dawson is materially distinguishable because in Dawson only a bare stipulation of associational membership was introduced, proving “nothing more than abstract beliefs,” whereas here the State adduced substantial evidence—Davis’s own violent writings, drawings, and literature endorsing destruction—that connected his brand of Satanism to future dangerousness. The court emphasized: “Far from clearly establishing the boundaries of the relevance inquiry in the First Amendment context, Dawson left open the possibility that Delaware could have avoided the constitutional violation if the evidence had demonstrated something more than the defendant’s abstract beliefs”. Even assuming arguendo Davis overcame AEDPA, any error was harmless under Brecht because his own writings and drawings—independently admissible—”exhibit[ed] a preoccupation with rape, violence (particularly towards women), and death.”
  • On the IAC claim, the court found that, unlike in Wiggins v. Smith where counsel failed to prepare any social history, the state habeas court made detailed findings that Davis’s attorneys conducted extensive investigations, hired an investigator, traveled out of state to interview witnesses, and pursued a legitimate mitigation strategy focused on personal accountability and humanizing Davis. The court noted: “Far from being cursory or summary, Davis’s counsel did a thorough job researching Davis’s background and making sure the jury had access to that information.” Under the “doubly deferential” AEDPA-Strickland standard, there was “at least a ‘reasonable argument’ that counsel satisfied Washington‘s deferential standard.”
  • The court also rejected Davis’s challenges to the state habeas court’s factual findings—including its determination that Davis’s claims of suicide attempts and sexual abuse were “overstated or not credible”—noting that a recorded telephone call showed Davis would “say whatever he had to say to manipulate his psychiatric diagnosis,” and that a reasonable factfinder could discount his self-reports on that basis.

• Merriott v. City of Bossier City, 25-30325, appeal from W.D. La.
  • Ramirez, J. (Clement, Douglas, Ramirez) (oral argument), First Amendment
  • Affirming in part and reversing in part First Amendment challenge to City Council attempts to regulate or avoid public comment issues at Council meetings.
  • Weston Merriott, an online journalist in Bossier Parish, Louisiana, attended City Council meetings in 2023 to comment on a term-limits petition. On August 15, 2023, the City Council adopted a Policy barring “personal, impertinent or slanderous remarks” and “becom[ing] boisterous” at meetings, with offenders subject to removal. Councilmembers repeatedly interrupted Merriott when he criticized the Council’s handling of the petition and questioned the impartiality of outside counsel. An audio recording later revealed that several councilmembers held a secret post-meeting conference—attended by a quorum—to discuss eliminating public comment in retaliation for Merriott’s speech. Merriott sued under 42 U.S.C. § 1983 and the Louisiana Open Meetings Law; the district court dismissed all claims under Rule 12(b)(6).
  • At issue on appeal were (1) whether the Policy is facially overbroad under the First Amendment; (2) whether it is void for vagueness under the Fourteenth Amendment; (3) whether it constitutes impermissible viewpoint- and content-based discrimination; (4) whether Merriott stated as-applied Monell and First Amendment retaliation claims; and (5) whether Merriott stated a claim under the Louisiana Open Meetings Law.
  • The court reversed the dismissal of Merriott’s overbreadth, vagueness, viewpoint/content discrimination (as to “personal,” “impertinent,” and “slanderous”), as-applied Monell, retaliation, and Open Meetings Law claims (against Montgomery and Darby), and remanded. It affirmed dismissal of the content/viewpoint claim as to “boisterous” (which is viewpoint-neutral), the OML claim against Free (who did not attend the secret meeting), and the OML claim for civil penalties (because Merriott failed to allege knowing and willful participation).
  • On overbreadth, the court construed each undefined term by its ordinary meaning and concluded the Policy “encompasses a substantial number of unconstitutional applications” relative to its legitimate sweep. The prohibition on “personal remarks” forbids citizens from even using a councilmember’s name, noting a conflict of interest, or stating that a councilmember lied—”[t]he possible applications are unquantifiable, especially when not harnessed by any limiting principle.” The court agreed with the Ninth Circuit’s Acosta v. City of Costa Mesa that such provisions capture “nothing more than bold criticism of City Council members.” On “boisterous,” the court held that “[t]he Policy’s prohibition on becoming ‘boisterous’ likewise turns ‘entirely’ on ‘whether or not a [councilmember] is annoyed,'” citing Coates v. City of Cincinnati. The court stressed: “Bossier City set the scope of its Policy, and it is nearly limitless.”
  • On vagueness, the court held that “personal” and “impertinent” turn on a listener’s sensitivity alone, failing to give speakers a “reasonable opportunity to know what conduct is prohibited.” As to arbitrary enforcement, “violations of the Policy turn only on the listener’s discretion—precisely what Coates forbids,” and the Policy lacked any “explicit standards for those who apply” it. On viewpoint discrimination, the court found the Policy’s terms “prohibit speech purely because it disparages or offends,” which constitutes viewpoint discrimination under Matal v. Tam and Iancu v. Brunetti.
  • On the Open Meetings Law claim, the court held that Merriott plausibly alleged a “meeting” occurred: four of seven councilmembers (a quorum) convened to discuss changing public-comment rules, constituting “deliberat[ion] . . . on a matter over which the public body has power”. The court rejected Appellees’ argument that the violation was merely “technical,” noting: “Hosting a ‘secret’ meeting is far from technical—it flaunts the very thing the OML seeks to prevent”. However, civil penalties were unavailable because Merriott never alleged that the councilmembers acted “knowingly and willfully.”

Unpublished decisions

• United States v. Johnson, 24-30803, appeal from E.D. La.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, supervised release
  • Affirming revocation of supervised release.
  • At issue on appeal was whether the district court retained jurisdiction to revoke supervised release where the defendant absconded during his supervision term but was not arrested until after the term expired; whether the revocation sentence was plainly unreasonable. The case was on remand from the Supreme Court following Rico v. United States, 146 S. Ct. 947 (2026), which addressed the fugitive tolling doctrine.
  • The court held that because a warrant was issued during the supervised release term based on a violation (failure to report for mental health treatment in August 2020), 18 U.S.C. § 3583(i) preserved the district court’s jurisdiction to revoke supervised release even though the arrest occurred after the term ended. The court further held that any error in the district court’s consideration of a post-supervision violation was not plain error because the law regarding tolling was unsettled at the time of sentencing. The revocation sentence of 24 months was not plainly unreasonable.

• United States v. Sanchez, 25-11207, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Sanchez Varela, 25-50707, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Gray, 25-60679, appeal from S.D. Miss.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming sentence that included supervised release conditions labeled “standard” in the written judgment, reviewing whether sentence was in error when it conflicted with the district court’s oral pronouncement of the sentence under United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc).
  • Applying United States v. Gomez, 960 F.3d 173 (5th Cir. 2020), the court found no conflict between the oral pronouncement and the written judgment because the district court orally adopted prior conditions, giving the defense adequate notice and opportunity to object.

• United States v. Goodman, 25-11117, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Posada, 25-11001, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Roberts, 25-50657, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Garcia-Dominguez, 25-11222, appeal from N.D. Tex.
  • per curiam (Clement, Richman, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Garcia, 25-11295, appeal from N.D. Tex.
  • per curiam (Clement, Richman, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Gilstrap, 25-50798, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Saldana-Hernandez, 25-40794, appeal from S.D. Tex.
  • per curiam (Clement, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Vasquez Bonilla v. Blanche, 25-60652, petition for review of BIA order
  • per curiam (Davis, Wilson, Douglas) (no oral argument), immigration
  • Dismissing in part and denying in part Salvadoran citizen’s petition for review of BIA order denying motion to reopen.
  • At issue on appeal was whether the BIA abused its discretion in denying petitioner’s motion to reopen removal proceedings; whether petitioner demonstrated changed country conditions in El Salvador sufficient to overcome the numerical bar on motions to reopen; and whether the court had jurisdiction to review the BIA’s denial of sua sponte reopening.
  • The court held that petitioner waived any challenge to the BIA’s finding that the motion was number-barred as to lack of notice, failed to make a meaningful comparison demonstrating material change in El Salvador’s country conditions, and that the court lacked jurisdiction to review the discretionary denial of sua sponte reopening.

• Targgart v. Next Bridge Hydrocarbons, Inc., 25-10879, appeal from N.D. Tex.
  • per curiam (Stewart, Engelhardt, Douglas) (oral argument), Securities Act
  • Reversing dismissal of Securities Act claims, and remanding for further proceedings.
  • At issue on appeal was Whether shareholders who received stock in a corporate spinoff—during which their prior preferred stock was canceled—”purchased” or “acquired for value” their new securities, as required for statutory standing under Sections 11, 12, and 15 of the Securities Act of 1933; whether the fundamental-change doctrine applies to Securities Act claims; and whether a corporate officer who promoted the predecessor stock qualified as a statutory “seller” under Section 12.
  • The court held that the stock-for-stock exchange—where plaintiffs surrendered their Meta Materials Preferred Stock and received Next Bridge common stock—constituted a “purchase” for value under controlling Fifth Circuit precedent in 7547 Corp. v. Parker & Parsley, 38 F.3d 211 (5th Cir. 1994). The court declined to extend the fundamental-change doctrine (which applies only to Exchange Act claims) to the Securities Act context. The court further held that a former officer’s pre-spinoff statements promoting the stock plausibly brought him within Section 12’s scope as a statutory seller. Because Sections 11 and 12 claims survived, the derivative Section 15 claim was also reinstated. Alternative grounds for dismissal were left for the district court on remand.

• United States v. Washington, 25-30460, appeal from W.D. La.
  • per curiam (Clement, Southwick, Oldham) (no oral argument), criminal, guilty plea, sentencing
  • Affirming guilty plea conviction of conspiracy to distribute methamphetamine and 120-month mandatory minimum sentence.
  • The court held that drug quantity is not a formal element of a drug conspiracy offense, so the factual basis need not independently establish the threshold quantity. The record showed that Washington repeatedly confirmed his understanding of the charge and the ten-year mandatory minimum, so the plea was knowing and voluntary. On sentencing, Washington failed to argue that the quantity attributable to his coconspirators was not reasonably foreseeable to him, and the district court lacked authority to go below the statutory minimum absent a government motion or safety-valve qualification.

• United States v. Aguayo-Galvez, 25-50853, appeal from W.D. Tex.
  • per curiam (King, Smith, Ramirez) (no oral argument), criminal, sentencing
  • Vacating and remanding sentence based on the U.S.S.G. § 2L1.1(b)(8)(A)(ii) sentencing enhancement for “involuntary detention” of aliens in connection with a demand for payment, where aliens were charged additional fees to continue staying at a stash house but were not prevented from leaving.
  • The court held that “involuntarily detained” under § 2L1.1(b)(8)(A) means an alien is held or confined against his will, and that the record did not plausibly show the aliens were detained against their will—they were charged to continue staying or to be transported, but there was no evidence they were required to pay before being permitted to leave. The court distinguished Marquez-Rendon, where aliens were forced to pay or be involuntarily returned to Mexico. The court further held the error was not harmless because the district court imposed a sentence at the bottom of the erroneous Guidelines range and provided no independent explanation showing it would have imposed the same sentence regardless of the error.

• Grant v. Amazon.com Services, LLC, 25-10865, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), Age Discrimination in Employment Act, amendment, res judicata
  • Affirming dismissal of pro se plaintiff’s claims for ADEA discrimination and retaliation, breach of contract, fraud, intentional infliction of emotional distress, defamation, and “loss of use/loss of enjoyment” under Rule 12(b)(6); and denial of leave to amend.
  • The court held that: (1) Grant’s ADEA claims were barred by res judicata because they arose from the same nucleus of operative facts litigated in a prior federal suit (Grant I); (2) his breach of contract and fraud claims were likewise barred by res judicata based on a prior state court judgment (Grant II); (3) his IIED and defamation claims were preempted by Chapter 21 of the Texas Labor Code because they were grounded in the same workplace discrimination allegations, and independently, his IIED claim failed to allege “extreme and outrageous” conduct and his defamation claim was time-barred under the one-year Texas statute of limitations; and (4) “loss of use” and “loss of enjoyment” are not standalone causes of action under Texas law. The court also held that the district court did not abuse its discretion in denying leave to amend, given the eight-month delay in seeking amendment, the failure to propose new curative allegations, and the futility of any amendment in light of res judicata and state-law bars.