Case: 25-70004       Document: 34-1      Page: 1    Date Filed: 03/07/2025




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


                              No. 25-70004
                                                                        FILED
                                                                    March 7, 2025
                             ____________
                                                                   Lyle W. Cayce
David Wood,                                                             Clerk

                                                        Plaintiff—Appellant,

                                   versus

Rachel Patton, in her official capacity as Assistant Attorney General,

                                         Defendant—Appellee.
               ______________________________

               Appeal from the United States District Court
                    for the Western District of Texas
                        USDC No. 1:24-CV-1058
               ______________________________

Before Elrod, Chief Judge, Smith and Engelhardt, Circuit Judges.
Jerry E. Smith, Circuit Judge:
      David Wood brings this last-minute attempt to delay execution per his
longstanding death sentence. In this 

 suit, Wood asserts two
claims that Texas’s post-conviction DNA testing statute violates due pro-
cess. The district court dismissed both claims and denied Wood’s motion to
stay his March 13, 2025, execution.
       Wood lacks standing to bring his first claim, and the district court
properly dismissed his second claim under Federal Rule of Civil Procedure
12(b)(6). Accordingly, we affirm the order and judgment of the district court
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                                       No. 25-70004


and deny Wood’s renewed motion to stay his execution.

                                             I.
        Wood was convicted of capital murder and sentenced to death in 1992
following the brutal murders of three young women and three teenaged girls
in 1987. The victims—Ivy Williams, Desiree Wheatley, Karen Baker, Angel-
ica Frausto, Rosa Maria Casio, and Dawn Smith—were found buried in shal-
low graves near El Paso, and the evidence indicated that Wood had sexually
assaulted them before killing them.
        Wood appealed to the Texas Court of Criminal Appeals (“CCA”),
which affirmed the conviction and sentence. Wood v. State, No. AP-71,594
(Tex. Crim. App. Dec. 13, 1995). Wood has since pursued extensive litigation
in state and federal court. 1 We briefly summarize the relevant procedural
history.
        In 2010, Wood filed his first motion for post-conviction forensic DNA
testing under Chapter 64 of the Texas Code of Criminal Procedure. See
Tex. Code Crim. Proc. art. 64.01 et seq. That law allows the convicting
court to order DNA testing if the movant meets certain requirements. 2 The
trial court granted Wood’s uncontested motion to have three items tested for
DNA evidence. Although the DNA testing showed the presence of male
DNA from someone other than Wood on one piece of evidence, the trial
        _____________________
        1
          See, e.g., Ex Parte Wood, No. WR-45,746-01 (Tex. Crim. App. Sept. 19, 2001);
Wood v. Quarterman, 

 (5th Cir. 2007), cert. denied, 

 (2008); In re
Wood, 

 (5th Cir. 2016) (per curiam); Wood v. State, 

 (Tex.
Crim. App. 2024), reh’g denied (Aug. 21, 2024), cert. denied, --- S. Ct. ----, 

(Feb. 24, 2025).
        2
          For example, Chapter 64 requires, inter alia, that the evidence meets certain
chain-of-custody parameters, that “identity was or is an issue in the case,” and that “the
request for the proposed DNA testing is not made to unreasonably delay the execution of
sentence or administration of justice.” Tex. Code Crim. Proc. art. 64.03(a)(1)–(2).




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                                       No. 25-70004


court concluded that the results failed to establish a reasonable probability
that Wood would not have been convicted had the test results been available
at trial.
        Wood filed a second motion in 2011 seeking DNA testing of four
fingernails. Later that same year, he submitted another motion for DNA test-
ing of more than 69 previously untested items. Wood filed a follow-up
motion in 2015 in which he sought testing of at least 39 items. Several months
later, he filed yet another motion, this time for testing of biological samples
to create a DNA profile of someone Wood calls an “alternative suspect.”
Wood filed a final motion for DNA testing in 2017 that listed 142 total items.
        The trial court denied those requests, and the CCA affirmed in May
2024. 3 The CCA concluded that Wood had engaged in “a pattern of piece-
meal litigation and delay.” 693 S.W.3d at 340. The court thus held that
Wood failed to meet his statutory “burden to show that his request for DNA
testing has not been made to unreasonably delay the execution of sentence.”
Id.; see Tex. Code Crim. Proc. art. 64.03(a)(2)(B).
        After losing his appeal in state court, Wood sued the state prosecutor 4
in federal court under 

, alleging that the CCA’s construction
of Chapter 64 violates his procedural due process rights. 5 Wood asserts two

        _____________________
        3
          Wood v. State, 

 (Tex. Crim. App. 2024), reh’g denied (Aug. 21,
2024), cert. denied, --- S. Ct. ----, 

 (Feb. 24, 2025).
        4
          Defendant Rachel L. Patton, an Assistant Attorney General for Texas, is sued in
her official capacity as District Attorney Pro Tem for El Paso County.
        5
          See Skinner v. Switzer, 

 (2011). Although the Supreme Court has
“rejected the extension of substantive due process” to DNA testing, the Court has “left
slim room for the prisoner to show that the governing state law denies him procedural due
process.” 

 at 525 (citing Dist. Att’y’s Off. for Third Jud. Dist. v. Osborne, 

,
71–72 (2009)). Skinner permits § 1983 suits that challenge the constitutionality of state
statutes as “authoritatively construed” by the state’s highest court. Id. at 531–37.




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                                  No. 25-70004


claims. First, he contends that the CCA’s “authoritative construction” of
Chapter 64 renders the state-created testing right “illusory” because the
CCA has not granted DNA testing in any appeal decided in the last fifteen
years.    Second, Wood alleges that the CCA construed the statute’s
unreasonable-delay prong in a “novel” way, thus creating a new rule of which
he lacked notice. Wood requests a declaratory judgment that Chapter 64
violates the Due Process Clause and a permanent and preliminary injunction
prohibiting his execution until the state grants him a “constitutionally ade-
quate opportunity to seek DNA testing.”
         The district court dismissed Wood’s complaint under Rule 12(b)(6)
and denied Wood’s motion for a preliminary injunction to stay the execution.
Wood timely appealed.

                                       II.
         “We review questions of subject matter jurisdiction de novo.” Crock-
ett v. R.J. Reynolds Tobacco Co., 

 (5th Cir. 2006) (quotation
omitted). Likewise, we review a dismissal under Rule 12(b)(6) de novo.
Dorsey v. Portfolio Equities, Inc., 

 (5th Cir. 2008). “We
review a district court’s decision to deny a stay of execution for abuse of dis-
cretion.” United States v. Vialva, 

, 460 (5th Cir. 2020) (per cur-
iam). “The party requesting a stay bears the burden of showing that the
circumstances justify an exercise of [judicial] discretion.” Nken v. Holder,

, 433–34 (2009).
         Courts consider four factors when deciding whether to stay an
execution:
         (1) [W]hether the stay applicant has made a strong showing
         that he is likely to succeed on the merits; (2) whether the ap-
         plicant will be irreparably injured absent a stay; (3) whether
         issuance of the stay will substantially injure the other parties




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                                     No. 25-70004


       interested in the proceeding; and (4) where the public interest
       lies.

 (quotation omitted). Where the movant cannot “present a sub-
stantial case on the merits,” the stay of execution must be denied, and the
court need not consider additional factors. White v. Collins, 

 (5th Cir. 1992) (quotations omitted).

                                          III.
        Wood first claims that the CCA’s authoritative construction of
Chapter 64 violates procedural due process because that court has denied
DNA testing in each of the twenty-three appeals it has heard in the past
fifteen years.
        We begin where Article III requires us to start: standing. To satisfy
the “irreducible constitutional minimum of standing,” a plaintiff must show
that he has an injury in fact that is caused by the defendant and redressable
by a favorable judgment of our court. Lujan v. Defs. of Wildlife, 

,
560–61 (1992).
        The state avers that Wood cannot satisfy the redressability prong of
standing because a declaratory judgment would not get him the DNA testing
he seeks. Wood contends that redressability is satisfied because a declaratory
judgment would allow him to return to state court to seek DNA testing
through a “constitutionally adequate” procedure.
        The Supreme Court confronted a similar question in Reed v. Goertz,

 (2023). Like Wood, Reed “sued in federal court under

, asserting that Texas’s post-conviction DNA testing law
failed to provide procedural due process.” 

. 6 The Court held that
       _____________________
       6
          Unlike Wood, Reed identified a specific way in which Chapter 64 allegedly vio-
lated the constitution: “Among other things, Reed argued that the law’s stringent chain-




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                                      No. 25-70004


Reed had standing. “[I]f a federal court concludes that Texas’s post-convic-
tion DNA testing procedures violate due process, that court order would
eliminate the state prosecutor’s justification for denying DNA testing. It is
‘substantially likely’ that the state prosecutor would abide by such a court
order.” 

 at 234 (quoting Utah v. Evans, 

 (2002)). Thus,
Reed demonstrated redressability because a favorable judgment would “sig-
nificant[ly] increase . . . the likelihood that the state prosecutor would grant
access to the requested evidence and that Reed therefore would obtain relief
that directly redresses the injury suffered.” 

 (quotations omitted).
        We applied Reed in Gutierrez v. Saenz, 

 (5th Cir.), cert.
granted, 

 (2024). Gutierrez challenged the same Texas DNA
statute and sought a declaratory judgment that one of the testing-eligibility
requirements violates the Constitution. We distinguished Reed and held that
Gutierrez lacked standing because the CCA explicitly held that it would have
denied DNA testing even if the challenged provision was not at issue. 

at 273–75. Thus, Gutierrez could not establish redressability because a
declaratory judgment would not make it substantially likely that the plaintiff
could obtain DNA testing. 

 “Because there is not a substantial likelihood
that a favorable ruling by a federal court on Gutierrez’s claims would cause
the prosecutor to order DNA testing, Gutierrez’s claims are not redressable
in this Section 1983 suit.” 

.
        Under Gutierrez, Wood cannot establish standing because it is not
“substantially likely” that a favorable ruling from our court would cause the
state prosecutor to change course and agree to DNA testing. Wood requests
a declaratory judgment opining that the CCA’s “authoritative construction”
        _____________________
of-custody requirement was unconstitutional and in effect foreclosed DNA testing for indi-
viduals convicted before ‘rules governing the State’s handling and storage of evidence were
put in place.’” 

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                                      No. 25-70004


of Chapter 64 flunks the Due Process Clause because that court “has denied
every request for DNA testing that has come before it” in “the last fifteen
years.” The problem for Wood is that the CCA has denied DNA testing
under the statute for a multitude of reasons. 7 Wood attempts to grasp at
penumbras formed by emanations from those decisions, but he fails to allege
any particular “authoritative construction” of Chapter 64 that violates due
process. Thus, Wood’s request for a vague declaratory judgment announc-
ing that the CCA has “construed” Chapter 64 unconstitutionally would not
apprise a state prosecutor (or the CCA) of which denials were unconstitu-
tional and why.
        In Wood’s case, the CCA denied testing because he unreasonably
delayed in seeking it. 8 A generalized declaratory judgment would not give
the state prosecutor any justification to think that that ground for denial vio-
lates due process. 9 Thus, Gutierrez controls: The principle that “standing

        _____________________
        7
          See, e.g., Skinner v. State, 

 (Tex. Crim App. 2009) (denying
post-conviction DNA testing because defense counsel made a “reasonable” decision to
forgo testing at trial); Ex parte Gutierrez, 

, 899–902 (Tex. Crim. App. 2011)
(denying testing because movant did not establish “that he would not have been convicted
if exculpatory results had been obtained through DNA testing”); Wilson v. State, 

, at *4 (Tex. Crim. App. Aug. 7, 2012) (denying testing because movant failed to
“show that his claim ha[d] not been made to unreasonably delay the execution of his sen-
tence”); Reed v. State, 

, 769–70 (Tex. Crim. App. 2017) (denying DNA
testing of evidence that had “been contaminated, tampered with, or altered”); Murphy v.
State, 

, at *4 (Tex. Crim. App. Sept. 26, 2023) (denying testing of evi-
dence that “was clearly not secured in relation to the capital murder offense”).
        8
          Wood, 693 S.W.3d at 340 (applying Tex. Code Crim. Proc. art. 64.03(a)–
(2)(B), which disallows testing sought for the purpose of “unreasonably delay[ing] the exe-
cution of sentence or administration of justice”).
        9
           Indeed, the state prosecutor would have good reason to maintain that the “no-
unreasonable-delay” requirement satisfies due process because the Supreme Court upheld
a similar requirement in Osborne, 557 U.S. at 69–70 (upholding a state law requiring DNA
evidence to be “diligently pursued”).




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                                   No. 25-70004


requires that a prosecutor be likely to grant access to the requested evidence
should a favorable federal court ruling be obtained cannot be satisfied on the
facts of this case.” Gutierrez, 

. Wood cannot establish redres-
sability, so he lacks Article III standing. 

       Although the Supreme Court has granted certiorari in Gutierrez, it
remains binding under our rule of orderliness unless and until the Supreme
Court holds differently. Texas v. United States, 

, 406–07 (5th
Cir. 2025). “This rule is strict and rigidly applied, and jurisdictional ques-
tions such as a panel’s understanding of Article III standing remain binding.”

 (cleaned up). “[A] mere hint of how the Supreme Court might rule
in the future” does not “permit a subsequent panel to depart from circuit
precedent.” 

 Thus, we apply Gutierrez and hold that Wood lacks standing
as to his first claim.

                                       IV.
       Wood’s second claim asserts that the CCA authoritatively construed
Chapter 64’s unreasonable-delay provision in a novel and unforeseeable way,
thus violating his procedural due process rights. See Tex. Code Crim.
Proc. art. 64.03(a)(2)(B). Although Wood has standing to bring that claim,
it is meritless, and the district court correctly dismissed it.

                                        A.
       In contrast to his first claim, Wood’s second claim satisfies Article III
standing under the test in Reed and Gutierrez. The CCA’s sole ground for
denying Wood’s motion for DNA testing was its interpretation of Chap-
ter 64’s unreasonable-delay provision. See Wood, 693 S.W.3d at 328–40;
contra Gutierrez, 

. A declaratory judgment vitiating the CCA’s
construction of the unreasonable-delay provision “would eliminate the state
prosecutor’s justification for denying DNA testing.” Reed, 

.
Thus, “[i]t is ‘substantially likely’ that the state prosecutor would abide by




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                                       No. 25-70004


such a court order” and agree to grant DNA testing—the “‘relief that
directly redresses the injury suffered.’” 

 Wood has standing to bring his
second claim. 10

                                             B.
        Wood avers that the CCA’s construction of Article 64.03(a)(2)(B)
violates the Due Process Clause as applied to him. Specifically, Wood con-
tends that at the time when he sought DNA testing, the CCA had construed
the unreasonable-delay provision in a “clear and consistent way”: “If the
individual seeking testing did not have an execution date (or was not on
notice of the State’s plan to seek one), particularly if other litigation remained
pending, they were not found to have unreasonably delayed[.]” Wood
sought testing with no execution date set and while litigation was ongoing,
but the CCA nevertheless held that other factors showed that he had unrea-
sonably delayed and was thus ineligible for DNA testing. 11 Wood claims that
this allegedly new construction of Chapter 64 violates due process as applied
to him because he could not have foreseen such a rule at the time he moved
for DNA testing.
        Even assuming that such a novel-construction theory could support a
due process claim, Wood fails plausibly to allege any novel or unforeseeable
construction of Chapter 64. First, the statute nowhere suggests that the pres-

        _____________________
        10
           The Rooker-Feldman doctrine does not preclude our jurisdiction, either. Rooker-
Feldman “prohibits federal courts from adjudicating cases brought by state-court losing
parties challenging state-court judgments.” Reed, 

. In contrast, “a ‘statute
or rule governing the decision may be challenged in a federal action.’” 

 (quoting Skinner,

). Here, Wood does not challenge the adverse judgment of the CCA, “but
rather ‘targets as unconstitutional the Texas statute [the CCA] authoritatively
construed.’” 

        11
           See Wood, 693 S.W.3d at 329–40 (extensively detailing Wood’s “pattern of piece-
meal litigation and delay”).




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                                 No. 25-70004


ence or absence of an execution date is a dispositive (or even key) factor in
finding unreasonable delay. The statute permits testing “only if . . . the con-
victed person establishes by a preponderance of the evidence that . . . the
request for the proposed DNA testing is not made to unreasonably delay the
execution of sentence or administration of justice.” Tex. Code Crim.
Proc. art. 64.03(a)(2)(B).
       Second, Wood insists that the CCA’s decisions fit a pattern, but that
does not prove his alleged rule. Indeed, the CCA has squarely held the oppo-
site of what Wood now claims. In Reed v. State, the CCA held that “Article
64.03(a)(2)(B) does not contain set criteria a court must consider in deciding
whether a movant satisfied his burden.” 

 (Tex. Crim.
App. 2017). Rather, the CCA considers “the circumstances surrounding the
request” for DNA testing in an “inherently fact-specific and subjective
inquiry.” 

 “Those circumstances may include the promptness of the
request, the temporal proximity between the request and the sentence’s exe-
cution, or the ability to request the testing earlier.” 

 Wood complains that
Reed was decided after his motions for DNA testing. But he ignores the fact
that Reed did not create a new rule; it restated the existing rule that “various
opinions [have] flesh[ed] out.” 

 (citing several cases decided before Wood
sought DNA testing). Wood fails to state a plausible claim because the CCA
did not construe Chapter 64 in a novel or unforeseeable manner.

                                 * * * * *
       Wood lacks standing to bring his first claim, and his second claim is
meritless. Both claims therefore were correctly dismissed, and Wood is not
entitled to a stay of execution. White, 

. The order and judg-
ment are AFFIRMED, and Wood’s renewed motion to stay his execution
is DENIED. The mandate shall issue forthwith.




                                      10