September 22-23, 2026, opinions

Posted on by tadbartlett

Designated for publication

  • Marshall v. Guerrero, 25-70019, appeal from S.D. Tex.
    • Wilson, J. (Stewart, Willett, Wilson) (oral argument), habeas corpus, Brady violation, ineffective assistance of counsel
    • Denying certificate of appealability on denial of habeas petition.
    • Gerald Marshall was convicted of capital murder and sentenced to death by a Texas jury in 2004 for the shooting death of Christopher Dean, a mentally disabled Whataburger employee, during an armed robbery in Houston on May 11, 2003. Marshall, along with co-defendants Ronald Worthy and Kenny Calliham, drove to the restaurant, and one of the men entered through the drive-through window with a pistol, demanded a key to the safe, and fatally shot Dean when he could not produce it. A central factual dispute at trial was whether Marshall or Worthy was the triggerman—eyewitness accounts were inconsistent, the murder weapon was never recovered, and co-defendant Calliham testified pursuant to a plea deal that Marshall entered the restaurant and admitted to “killing that bitch.” After his conviction and death sentence were upheld on direct appeal, Marshall pursued a lengthy course of state and federal habeas proceedings, ultimately filing an amended federal habeas petition raising thirteen grounds for relief, all of which the district court denied.
    • At issue on appeal was whether the Fifth Circuit should grant a certificate of appealability (COA) on six of Marshall’s habeas claims—all of which were procedurally defaulted in state court—specifically: (1) presentation of false and misleading evidence, (2) the State’s use of inconsistent theories at co-defendants’ trials, (3) a Brady violation for suppressing the identity of a tipster, (4) racially discriminatory prosecution, (5) ineffective assistance of counsel at the guilt phase, and (6) ineffective assistance of counsel at the penalty phase. The overarching question was whether Marshall could show cause and actual prejudice to overcome the procedural bar, or that a fundamental miscarriage of justice would result from dismissing his claims.
    • False testimony, inconsistent theories, Brady, and racial discrimination claims (Claims 1–4): The court found it “beyond reasonable debate” that each of these claims was procedurally barred. On the false-testimony claim, the court held that contradictions between witnesses’ trial testimony “merely establish a credibility question for the jury” and do not constitute perjury. On inconsistent theories, the court reaffirmed that “it is well-established that the use of inconsistent theories in the separate trials of co-defendants is not a violation of the due-process clause.” On the Brady claim, even though the State suppressed the identity of the tipster (Derrell McQueen) who identified “Bo” (Worthy) as the shooter, the court concluded McQueen’s identity was “plainly immaterial” because the jury already heard the substance of the tip, and “there is no ‘reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'” On the racial discrimination claim, the court noted Marshall could have raised the issue earlier and, in any event, statistical evidence “is an especially poor indicator of discrimination in an individual capital case.”
    • Ineffective assistance of counsel claims (Claims 5 & 6): Even applying the Martinez v. Ryan exception—which allows a petitioner to overcome procedural default by showing state habeas counsel was ineffective—the court found Marshall failed to establish a “substantial” IAC claim or actual prejudice. On the guilt phase, the court noted that trial counsel “elicited significant testimony discussing discrepancies in the eyewitness testimony,” impeached key witnesses, and conducted adequate cross-examination; Marshall’s complaints amounted to “discontent with the degree of assistance his trial counsel provided” rather than constitutionally deficient performance. On the penalty phase, the court observed counsel had begun mitigation investigations more than a year before trial, enlisted a mitigation specialist, and presented testimony about Marshall’s severe childhood abuse, abandonment, and mental illness.
    • Actual innocence gateway and exhaustion arguments: The court rejected Marshall’s claim that a fundamental miscarriage of justice would result, finding he “provides no proof, much less conclusive proof, suggesting any other person shot Dean” and instead “merely emphasizes the differences between testimony offered at different trials and ignores the record evidence supporting the jury’s verdict”. The court also rejected Marshall’s argument that systemic flaws in Texas’s state habeas counsel appointment system rendered the state process “ineffective” under 28 U.S.C. § 2254(b)(1)(B)(ii), noting that “failure to provide ‘competent’ counsel for a state habeas petition does not fall under the general catch-all exception.”

Unpublished decisions

  • Rosales v. Lewis, 25-30650, appeal from W.D. La.
    • per curiam (King, Smith, Ramirez) (oral argument), qualified immunity
    • Affirming denial of qualified immunity dismissal of Fourth Amendment claims arising from traffic stop; reversing denial of qualified immunity of First Amendment claims arising from filming of traffic stop; and remanding for further proceedings.
    • Officers Jim Lewis and Samuel Terrell appealed the denial of their motion for judgment on the pleadings asserting qualified immunity from claims that they violated the First and Fourth Amendment rights of Mario Rosales and Gracie Lasyone during a traffic stop. The Fourth Amendment claims challenged (1) the initiation of the stop without reasonable suspicion, (2) the extension of the stop’s scope and duration, and (3) unreasonable searches of Rosales’s person. The First Amendment claim alleged Officers violated Appellees’ right to record the encounter on their phones.
    • Holding — Fourth Amendment (Affirmed): The court held that Appellees plausibly alleged the initial traffic stop lacked reasonable suspicion because the complaint, viewed in the light most favorable to Appellees and not blatantly contradicted by the video evidence, supported the inference that Rosales complied with Louisiana signaling laws and the Officers fabricated a traffic violation. The court further held that Officer Terrell’s frisk of Rosales was plausibly unlawful—both because the underlying stop was itself unlawful and because the individual factors cited (agitation, baggy clothing, a gun in the car) did not support reasonable suspicion that Rosales was armed and dangerous. Officer Lewis’s subsequent pocket search was also plausibly unlawful under Minnesota v. Dickerson because it continued after the prior pat-down revealed no weapons. Additionally, any consent Rosales gave was not an independent act of free will given the close temporal proximity to the allegedly unlawful detention and the absence of intervening circumstances. The court found all of these rights were clearly established, defeating qualified immunity at the pleading stage.
    • Holding — First Amendment (Reversed): The court reversed on the First Amendment claims, holding that the right of a person detained during a traffic stop to record the encounter on a personal phone was not clearly established. The court distinguished Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017), which involved recording police from a public sidewalk, not during one’s own detention. Appellees cited no authority putting Officers on notice that denying permission to record while detained was objectively unreasonable.
  • United States v. Chi, 25-40575, appeal from E.D. Tex.
    • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, forfeiture
    • Affirming denial of motions for return of firearm and ammunition.
    • Anson Chi, a federal prisoner convicted of possession of an unregistered firearm and malicious use of explosive materials, appealed the denial of his Federal Rule of Criminal Procedure 41(g) motions seeking the return of firearms and ammunition seized by the Government. The district court denied the motions because the Government had already disposed of the property in early 2025.
    • Chi abandoned the issue by failing to identify any error in the district court’s denial. In any event, the denial was proper because the Government no longer possessed the property, and sovereign immunity bars monetary damages under Rule 41(g). Chi also failed to show a due process violation.
  • United States v. Amador, 25-40751, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Southwick) (no oral argument), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
    • Gabriel Amador appealed the denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). He argued the district court (1) abused its discretion in denying his motion to amend, (2) incorrectly concluded he would still be subject to an enhanced sentencing range under the First Step Act, and (3) erred by relying on drug quantities not found by a jury in violation of Apprendi.
    • The court held Amador was not entitled to relief under recent Supreme Court and Fifth Circuit precedent, including Rutherford v. United States and Fernandez v. United States. His Apprendi/Erlinger argument was raised for the first time on appeal and was not considered. The Government’s motion for summary affirmance was denied as moot, and the judgment was affirmed without further briefing.
  • United States v. Morales-Gonzalez, 25-50846, appeal from W.D. Tex.
    • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
    • Francisco Raymundo Morales-Gonzalez appealed his sentence following conviction for illegal reentry, arguing (1) the district court failed to give sufficient reasons for a 12-month above-guidelines sentence, (2) the sentence was substantively unreasonable, and (3) the court erred by imposing supervised release without addressing U.S.S.G. § 5D1.1(c).
    • The unpreserved challenge to the explanation of the sentence failed on plain-error review. Morales-Gonzalez did not demonstrate that the above-guidelines sentence was an abuse of discretion, and he failed to show reversible plain error regarding the imposition of supervised release.
  • United States v. Martinez, 25-50934, appeal from W.D. Tex.
    • per curiam (King, Higginson, Douglas) (no oral argument), criminal, sentencing
    • Affirming sentence on revocation of supervised release.
    • Cody Alexander Martinez appealed the sentence imposed following revocation of his supervised release, contending for the first time on appeal that the district court committed procedural error by inadequately explaining its decision to impose an above-guidelines sentence.
    • The court found the district court’s explanation was sufficient under Rita v. United States to show it had a reasoned basis for the sentencing decision, and Martinez failed to demonstrate reversible plain error. His challenge to the substantive reasonableness of the sentence was deemed abandoned for inadequate briefing.
  • Mata-Picazo v. Blanche, 25-60658, petition for review of BIA order
    • per curiam (Smith, Southwick, Oldham) (no oral argument), immigration
    • Denying Mexican citizen’s petition for review of BIA order denying his motion to reconsider its prior affirmance of the Immigration Judge’s denial of his motion for cancellation of removal. He contended the BIA misapplied the standard for exceptional and extremely unusual hardship.
    • The court held that Mata-Picazo failed to show the BIA abused its discretion because his request for reconsideration was merely a disagreement with its earlier decision and an attempt to have the agency reweigh the evidence. His argument regarding conflation of standards by the IJ and BIA was not exhausted before the agency.
  • Grim v. Confluent Medical Technologies, Inc., 26-50081, appeal from W.D. Tex.
    • per curiam (Davis, Jones, Richman) (no oral argument), employment discrimination, Americans with Disabilities Act, forfeiting argument
    • Affirming summary judgment dismissal of disability-based employment discrimination claims.
    • Gregory Grim sued his former employer, Confluent Medical Technologies, under the Americans with Disabilities Act and the Texas Labor Code, alleging disability discrimination, failure to accommodate, and retaliation after his termination. The district court granted Confluent’s summary-judgment motion, finding Grim raised no genuine dispute as to pretext.
    • The court noted that Grim’s appellate brief repeated verbatim his district court opposition, failing to address the district court’s reasoning, thereby forfeiting any argument that the court erred. Even without forfeiture, the case failed on the merits because Grim offered no evidence he sought a surgery-related accommodation beyond the paid time off Confluent provided. Without proof of an accommodation request, both the failure-to-accommodate and retaliation claims necessarily failed.
  • United States v. Salas, 26-50128, appeal from W.D. Tex.
    • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, sentencing
    • Affirming 97-month sentence following a guilty plea for possession of child pornography, rejecting argument that the district court plainly erred by denying defendant the zero-point-offender reduction under U.S.S.G. § 4C1.1(a). Salas contended that possession of child pornography is not a “sex offense” under § 4C1.1(a)(5) but rather a recordkeeping offense.
    • The court found Salas had not shown any clear or obvious error in the determination that he was ineligible for the zero-point-offender reduction.
  • United States v. Preston, 26-60078, appeal from S.D. Tex.
    • per curiam (Davis, Richman, Oldham) (no oral argument), criminal, sentencing
    • Affirming 24-month statutory maximum prison term imposed upon the second revocation of supervised release for defendant’s 2021 conviction for possession of a firearm by a person previously committed to a mental institution. Preston argued the sentence was substantively unreasonable because the district court overweighted public safety without adequately assessing his actual risk, failed to account for his good faith compliance efforts and need for medical care, and made a clear error of judgment in balancing sentencing factors.
    • The court gave due deference to the district court’s determination that the statutory maximum sentence was justified and held the sentencing decision was not an abuse of discretion under the totality of the circumstances.
  • United States v. Diaz-Osuna, 26-60174, appeal from S.D. Miss.
    • per curiam (Davis, Jones, Richman) (no oral argument), criminal, sentence reduction
    • Affirming denial of motion for reconsideration of denial of motion for sentence reduction.
    • Hector Miguel Diaz-Osuna, convicted of voluntary manslaughter and conspiring to cause a riot in a federal penal facility (sentenced to 300 months), appealed the denial of his motion for reconsideration of the sua sponte denial of a sentence reduction under 18 U.S.C. § 3582(c)(2). He argued that retroactive Amendment 821 to the Sentencing Guidelines lowered his criminal history category from III to II and reduced his guidelines range to 235–293 months, and that the district court abandoned the goal of consistency and uniformity in sentencing by refusing to reduce his sentence.
    • The court held that the district court recognized Diaz-Osuna’s eligibility for a reduction but properly denied it after weighing the § 3553(a) factors, including the seriousness of the offense, his criminal history, and sentencing goals. Diaz-Osuna’s arguments amounted to a mere disagreement with the court’s weighing of those factors, which was insufficient to show an abuse of discretion.