Gutierrez v. Saenz

(Slip Opinion)              OCTOBER TERM, 2024                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

                     GUTIERREZ v. SAENZ ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                  THE FIFTH CIRCUIT

   No. 23–7809. Argued February 24, 2025—Decided June 26, 2025


In 1998, Texas charged Ruben Gutierrez with capital murder for his in-
  volvement in the killing of Escolastica Harrison. The State’s theory at
  trial was that Gutierrez wielded one of the two screwdrivers used to
  stab Harrison to death in her mobile home. The jury convicted
  Gutierrez of capital murder. At the sentencing phase of Gutierrez’s
  trial, the jury was required to answer whether Texas proved beyond a
  reasonable doubt that Gutierrez “actually caused” Harrison’s death or,
  if not, “that he intended to kill [her]” or “anticipated that a human life
  would be taken.” Tex. Code. Crim. Proc. Ann., Art. 37.071(2)(b)(2).
  The jury answered yes, and Gutierrez was sentenced to death.
     For nearly 15 years, Gutierrez has sought DNA testing of evidence
  he claims would prove he was not in Harrison’s home the night of the
  murder. Texas’s Article 64 allows DNA testing where a “convicted per-
  son establishes by a preponderance of the evidence” that he “would not
  have been convicted if exculpatory results had been obtained through
  DNA testing,” among other criteria. Art. 64.03(a)(2)(B). Invoking Ar-
  ticle 64, Gutierrez twice moved in state court for DNA testing of un-
  tested crime scene evidence. The trial court denied his first request in
  2010, and the Texas Court of Criminal Appeals (TCCA) affirmed. The
  court reasoned that even if Gutierrez’s DNA was not found on the
  tested items, that would not establish his innocence of capital murder
  because he would still be a party to the robbery that resulted in Har-
  rison’s death. The court concluded that Gutierrez could not use Article
  64 to show he was wrongly sentenced to death unless he could also
  establish his innocence of the underlying crime. In 2019, Gutierrez
  again sought DNA testing, but Texas courts denied his motion. On
  appeal, the TCCA reiterated that DNA testing was not available to
2                        GUTIERREZ v. SAENZ

                                 Syllabus

 show only death penalty ineligibility.
    Gutierrez then filed suit in federal court under 

 against Luis Saenz, the district attorney who has custody of the un-
 tested evidence. Gutierrez argued that Texas’s DNA testing proce-
 dures violated his liberty interests in utilizing state postconviction pro-
 cedures. The District Court agreed and granted declaratory relief,
 finding it fundamentally unfair that Texas gives prisoners the right to
 challenge their death sentence through habeas petitions but prevents
 them from obtaining DNA testing to support those petitions unless
 they can establish innocence of the underlying crime. The Fifth Cir-
 cuit vacated the District Court’s judgment and held that Gutierrez
 lacked standing to bring his §1983 suit, finding that his claimed injury
 was not redressable because a declaratory judgment would be unlikely
 to cause the prosecutor to “reverse course and allow testing.” 

, 272.
Held: Gutierrez has standing to bring his §1983 claim challenging
 Texas’s postconviction DNA testing procedures under the Due Process
 Clause. Pp. 6–14.
    (a) Individuals convicted of crimes in state court “have a liberty in-
 terest in demonstrating [their] innocence with new evidence under
 state law.” District Attorney’s Office for Third Judicial Dist. v. Os-
 borne, 

. For that reason, a state-created right to post-
 conviction procedures can sometimes create rights to other procedures
 essential to realizing the state-created right. In Skinner v. Switzer,
 

, the Court held that a Texas prisoner could file a due
 process claim under §1983 against a prosecutor where the prisoner al-
 leged that the prosecutor’s refusal to turn over evidence deprived him
 of his liberty interests in utilizing state procedures to obtain reversal
 of his conviction or to obtain a pardon or reduction of his sentence. The
 Court reasoned that, while the prisoner could not challenge in federal
 court the state court decisions denying his Article 64 motions, he could
 allege in a federal §1983 action that Article 64 unconstitutionally pre-
 vented him from obtaining such testing.
    The question of a state prisoner’s standing to bring a due process
 claim against the custodian of his evidence was first addressed in Reed
 v. Goertz, 

, where the Court confronted another challenge
 to Texas’s postconviction DNA testing law. Reed alleged, among other
 things, that Article 64’s chain-of-custody requirement was unconstitu-
 tional and effectively prevented many individuals from obtaining DNA
 testing. The Court held that Reed had standing to pursue declaratory
 relief. First, Reed adequately alleged an injury: denial of access to the
 requested evidence. Second, the state prosecutor caused Reed’s injury
 by denying access to the evidence. Finally, if a federal court concluded
                    Cite as: 

 (2025)                      3

                               Syllabus

that Texas’s postconviction DNA testing procedures violate due pro-
cess, the state prosecutor’s justification for denying DNA testing would
be eliminated, thereby removing the barrier between Reed and the re-
quested testing. The same is true here. Like Reed, Gutierrez alleges
that the local prosecutor’s denial of his DNA testing request deprived
him of his liberty interests in utilizing state procedures to obtain an
acquittal or sentence reduction. As in Reed, the declaratory judgment
Gutierrez seeks would redress that injury by changing the legal status
of the parties and eliminating the state prosecutor’s allegedly unlawful
justification for denying DNA testing. Pp. 6–8.
   (b) The Fifth Circuit recognized the clear parallels between this case
and Reed but distinguished the cases, reasoning that the local prose-
cutor in this case was unlikely to allow testing even if a federal court
declared that Texas may not deny DNA testing that would affect only
the punishment stage. Respondents, too, argue that Gutierrez lacks
standing because the District Court’s reason for declaring part of Arti-
cle 64 unconstitutional was only one of several independent state-law
grounds supporting the prosecutor’s decision to deny access to the evi-
dence. But this attempt to distinguish Reed fails twice over.
   First, to the extent the Fifth Circuit based its assessment of redress-
ability on the declaratory judgment the District Court later issued, ra-
ther than Gutierrez’s complaint, it turned the Article III standing in-
quiry on its head. Gutierrez’s standing does not depend on the relief
the District Court ultimately granted on the merits. The proper focus
of the standing inquiry is the complaint, and Gutierrez’s complaint
challenges not just Article 64’s limitation to actual innocence claims,
but also the other barriers Article 64 erects between Gutierrez and
DNA testing. Second, and more fundamentally, the Fifth Circuit erred
in transforming the redressability inquiry into a guess about whether
a favorable court decision will ultimately result in the prosecutor turn-
ing over the DNA evidence. In Reed, the Court reasoned that, if a fed-
eral court concludes that Texas’s postconviction DNA testing proce-
dures violate due process, that court order would redress the injury by
eliminating the state prosecutor’s reliance on Article 64 as a reason for
denying DNA testing. The same is true here. A declaratory judgment
in Gutierrez’s favor would redress his injury by removing the allegedly
unconstitutional barrier Article 64 erected between Gutierrez and the
requested testing. The Court in Reed was unmoved by the prosecutor’s
assertion that a declaratory judgment would not change his ultimate
decision to turn over the evidence. The reason is simple: That a pros-
ecutor might eventually find another reason to deny a prisoner’s DNA
testing request does not eliminate the prisoner’s standing to argue that
the cited reasons violated his rights under the Due Process Clause.
Pp. 8–13.
4                        GUTIERREZ v. SAENZ

                                 Syllabus

      (c) Respondents also assert that this case is now moot because the
    state prosecutor refused Gutierrez’s DNA testing request even after
    the District Court issued the declaratory judgment. That claim fails,
    too. A procedural due process claim like Gutierrez’s is not mooted by
    the defendant’s mid-appeal promise that, regardless of the lawsuit’s
    outcome, the ultimate result will remain the same. Holding otherwise
    would allow defendants to manufacture mootness by ensuring that, no
    matter what procedures a court requires them to employ, the same
    substantive outcome will follow. Article III requires no such result.
    Pp. 13–14.

, reversed and remanded.

  SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KAGAN, KAVANAUGH, and JACKSON, JJ., joined, and in which
BARRETT, J., joined as to all but Part II.B.2. BARRETT, J., filed an opinion
concurring in part and concurring in the judgment. THOMAS, J., filed a
dissenting opinion. ALITO, J., filed a dissenting opinion, in which
THOMAS and GORSUCH, JJ., joined.
                        Cite as: 

 (2025)                              1

                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     United States Reports. Readers are requested to notify the Reporter of
     Decisions, Supreme Court of the United States, Washington, D. C. 20543,
     pio@supremecourt.gov, of any typographical or other formal errors.


SUPREME COURT OF THE UNITED STATES
                                   _________________

                                   No. 23–7809
                                   _________________


  RUBEN GUTIERREZ, PETITIONER v. LUIS SAENZ,
                    ET AL.

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                                 [June 26, 2025]

  JUSTICE SOTOMAYOR delivered the opinion of the Court.
  For nearly 15 years, petitioner Ruben Gutierrez has
sought DNA testing of evidence that, he says, will help him
prove he was never at the scene of the murder he was con-
victed of committing. When the local prosecutor refused to
test the evidence in his custody, Gutierrez filed suit under
Rev. Stat. §1979, 

, arguing that Texas’s
procedures for obtaining DNA testing violated his rights
under the Due Process Clause. The District Court agreed
and granted a declaratory judgment to that effect.
  The Fifth Circuit, however, held that Gutierrez lacked
standing to bring his §1983 suit, reasoning that, even if a
federal court declared Texas’s procedures unconstitutional,
the local prosecutor would be unlikely to turn over the phys-
ical evidence for DNA testing. That holding contravenes
Reed v. Goertz, 

 (2023), where this Court de-
cided on analogous facts that another Texas prisoner had
standing to sue the local prosecutor who denied him access
to DNA testing. 

. Put simply, Reed held that a
federal court order declaring “that Texas’s post-conviction
DNA testing procedures violate due process” would redress
the prisoner’s claimed injury by “eliminat[ing]” the state
2                    GUTIERREZ v. SAENZ

                      Opinion of the Court

prosecutor’s reliance on Article 64 as a reason for denying
DNA testing. Ibid.; see Tex. Code Crim. Proc. Ann., Art.
64.01 (Vernon 2018). The same is true here and the Court
therefore reverses.
                                I
                                A
    In 1998, Texas charged Ruben Gutierrez with capital
murder for the killing of Escolastica Harrison at her mobile
home in Brownsville, Texas. The State’s theory at trial was
that Harrison had been stabbed to death with two different
screwdrivers. To support its view that Gutierrez wielded
one of the two screwdrivers in question, the State intro-
duced a statement Gutierrez gave to the police, in which he
acknowledged that he and two accomplices had planned to
rob Harrison on the day she was killed and that he had been
in Harrison’s home while one of his accomplices stabbed
her. The jury convicted Gutierrez of capital murder.
    Texas law provides that a criminal defendant can be
guilty of capital murder even where he was merely a party
to a crime (such as robbery) that resulted in a person’s
death. 

, 7.02, 19.02, 19.03
(West 2021 and Supp. 2024). A death sentence, however,
may be imposed only if “the defendant actually caused the
death of the deceased[,] . . . intended to kill the deceased or
. . . anticipated that a human life would be taken.” Tex.
Code Crim. Proc. Ann., Art. 37.071(2)(b)(2) (Vernon 2006);
see also Johnson v. State, 

 (Tex. Crim.
App. 1992) (en banc) (“The Texas capital murder scheme
does not allow an individual to be put to death for merely
being a party to a murder”). To that end, the jury was re-
quired at the sentencing phase of Gutierrez’s trial to answer
whether Texas proved beyond a reasonable doubt that
Gutierrez “actually caused” Harrison’s death or, if not, “that
he intended to kill [her]” or “anticipated that a human life
would be taken.” Art. 37.071(2)(b)(2). The jury answered
                  Cite as: 

 (2025)             3

                      Opinion of the Court

yes, and Gutierrez was sentenced to death.
   Gutierrez has long maintained that the police coerced
him into confessing that he was in Harrison’s home on the
night of the murder. He insists that, as he twice told the
police before the statement in which he purportedly con-
fessed, he never entered the mobile home that night. Alt-
hough Gutierrez never disputed that he and two accom-
plices planned to rob Harrison, he contends that he thought
his accomplices would merely rob Harrison’s empty mobile
home and that no one would be harmed during the robbery.
He accordingly asserts that he should never have been sen-
tenced to death, and intends to seek vacatur of his death
sentence in a state habeas petition.                 See Art.
11.071(5)(a)(3).
   Since 2010, Gutierrez has sought DNA testing of crime-
scene evidence, including Harrison’s nail scrapings, a loose
hair, and various blood samples, to help him prove it was
his accomplices, not Gutierrez, in Harrison’s home on the
night of her murder. He maintains that Texas’s Article 64
entitles him to such DNA testing. Art. 64.01(a)(1). That
law provides for DNA testing where a “convicted person es-
tablishes by a preponderance of the evidence” that he
“would not have been convicted if exculpatory results had
been obtained through DNA testing” and that the request
was “not made to unreasonably delay the execution of sen-
tence or administration of justice.” Art. 64.03(a)(2)(B). To
grant a motion for DNA testing under Article 64, the state
court must also find, among other things, that the evidence
“is in a condition making DNA testing possible” and that
“identity was or is an issue in the case.” Art. 64.03(a)(1).
   Invoking Article 64, Gutierrez twice moved in state court
for an order requiring the local district attorney to turn over
the untested crime scene evidence for DNA testing. The
trial court denied his first request in 2010, and the Texas
Court of Criminal Appeals (TCCA) affirmed. Ex parte
4                   GUTIERREZ v. SAENZ

                     Opinion of the Court

Gutierrez, 

 (2011). The TCCA rea-
soned that, even if Gutierrez’s DNA was not present on the
tested items, that would not establish his innocence of
Texas capital murder. 

. After all, even if he
was not in the home, Gutierrez could still be a party to the
robbery that eventually resulted in Harrison’s death. 

. And, as the TCCA saw it, Gutierrez could not invoke
Article 64 to establish that he had been wrongly sentenced
to death unless he could also establish his innocence of the
underlying crime. 

 Finally, the court added: “[E]ven if
[Article] 64 did apply to evidence that might affect the pun-
ishment stage as well as conviction,” Gutierrez “still would
not be entitled to testing” because “the record facts” show
that “he played a major role in the underlying robbery and
that his acts showed a reckless indifference to human life.”

  Gutierrez tried again in 2019, this time bolstered by new
counsel and new evidence that, according to Gutierrez,
would implicate Harrison’s nephew, Avel Cuellar, as one of
the two people who stabbed Harrison to death. In the in-
terim, Fermin Cuellar (Avel Cuellar’s nephew), had signed
a sworn statement averring that his uncle Avel approached
him in the summer of 1998 about stealing “ ‘a lot’ ” of money
from Harrison. App. 701a. Fermin also averred that, after
the murder, Avel boasted to Fermin that he had money bur-
ied in the trailer park. Again, the Texas courts denied
Gutierrez’s motion. On appeal, the TCCA reiterated that
DNA testing was not available to show ineligibility for the
death penalty and that, “even if it [were],” Gutierrez “still
would not be entitled to testing.” Gutierrez v. State, 

, *7–*9 (Feb. 26, 2020) (per curiam).
                             B
  Gutierrez next filed this federal action for declaratory
and injunctive relief under 

. He sued re-
spondent Luis Saenz, the district attorney who has custody
                   Cite as: 

 (2025)              5

                       Opinion of the Court

of the evidence Gutierrez would like tested and whose office
prosecuted Gutierrez. Gutierrez’s complaint alleges that,
“[b]y refusing to release the biological evidence for testing,
and thereby preventing [Gutierrez] from gaining access to
exculpatory evidence that could have led to his acquittal
[or] demonstrated that he is not death eligible,” the district
attorney “deprived” him “of his liberty interests in utilizing
state [postconviction] procedures . . . in violation of his right
to due process of law.” App. 457a–458a.
   Gutierrez’s complaint pinpoints at least three features of
Article 64 that prevented him from gaining access to the
relevant evidence to which, he says, the Due Process Clause
entitles him. First, Gutierrez says, the Texas courts inter-
pret Article 64 to impose a virtually insurmountable barrier
to obtaining DNA testing, deeming a prisoner ineligible as
long as the record contains any evidence, no matter how mi-
nor, that he committed the crime. 

 at 449a, 451a. Sec-
ond, and relatedly, he asserts that it was unfair for the
TCCA not to consider new evidence he had proffered since
his trial: A fair procedure, he contends, would require con-
sidering the effect exculpatory DNA evidence would have
on a jury that also heard “new evidence casting doubt on
[Gutierrez’s] statement” to the police. 

 at 452a, n. 8.
Third, Gutierrez asserts that, as interpreted by the TCCA,
Article 64 violates the Due Process Clause by forbidding
DNA testing when its sole purpose is to establish that a de-
fendant is ineligible for the death penalty. 

 at 456a.
   The District Court agreed with Gutierrez in part. 

 (SD Tex. 2021). It is fundamentally unfair,
the court declared, that Texas gives prisoners the right to
file a habeas petition challenging their death sentence, but
precludes them from obtaining DNA testing to support that
habeas petition unless they can establish innocence of the
underlying crime. 

. That limitation renders the
habeas right “illusory” because few people can make a clear
showing that they were wrongly sentenced to death without
6                   GUTIERREZ v. SAENZ

                      Opinion of the Court

DNA evidence. 

 at 910–911. “Due process,” the court
explained, “does not countenance procedural sleight of hand
whereby a state extends a right with one hand and then
takes it away with another.” 

.
   On appeal, a divided panel of the Fifth Circuit vacated
the District Court’s declaratory judgment, reasoning that
Gutierrez’s claimed injury was not redressable because the
declaratory judgment would be unlikely to cause the prose-
cutor to “reverse course and allow testing.” 

,
272 (2024). The court recognized that, just two years ago,
this Court rejected a nearly identical argument in Reed, 

. See 93 F. 4th, at 273–274, n. 3. Yet the Fifth
Circuit purported to distinguish Reed because, in
Gutierrez’s case, the TCCA “effectively anticipated an un-
favorable federal court ruling” when it held that, even if Ar-
ticle 64 applied to claims affecting death eligibility, the
facts in the trial record would still not entitle Gutierrez to
DNA testing. 93 F. 4th, at 275. Judge Higginson dissented,
noting that he saw no “meaningful distinction” between this
case and Reed. 93 F. 4th, at 275.
   While Gutierrez’s request for rehearing was pending in
the Fifth Circuit, Texas scheduled his execution. This
Court stayed his execution and granted certiorari to con-
sider Gutierrez’s standing to bring his §1983 claim. 

 (2024). Because Reed plainly establishes that he
does, the Court now reverses.
                             II
                             A
  Individuals convicted of crimes in state court “have a lib-
erty interest in demonstrating [their] innocence with new
evidence under state law.” District Attorney’s Office for
Third Judicial Dist. v. Osborne, 

 (2009). For
that reason, a state-created right to postconviction proce-
dures can, “ ‘in some circumstances, beget yet other rights
to procedures essential to the realization of the parent
                      Cite as: 

 (2025)                      7

                           Opinion of the Court

right.’ ” Ibid.1 To that end, this Court held in Skinner v.
Switzer, 

 (2011), that a Texas prisoner could
file a due process claim under §1983 against a prosecutor
who refused “ ‘to release . . . biological evidence for testing.’ ”
Id., at 530. In that case, Skinner had alleged that the pros-
ecutor’s refusal to turn over evidence deprived him of “ ‘his
liberty interests in utilizing state procedures to obtain re-
versal of his conviction and/or to obtain a pardon or reduc-
tion of his sentence.’ ” Ibid. This Court reasoned that, while
Skinner could not challenge in federal court the TCCA de-
cisions denying his Article 64 motions, he could allege in a
§1983 action that Article 64 unconstitutionally prevented
him from obtaining such testing. Id., at 532.
   Skinner did not explicitly address a state prisoner’s
standing to bring a due process claim against the custodian
of his evidence. That question was first raised in Reed,
where this Court confronted another claim that Texas’s
postconviction DNA testing law failed to guarantee proce-
dural due process. 

. Rodney Reed alleged,
among other things, that Article 64’s “stringent chain-of-
custody requirement was unconstitutional and in effect
foreclosed DNA testing for individuals convicted before
‘rules governing the State’s handling and storage of evi-
dence were put in place.’ ” 

 Before this Court, the local
prosecutor argued that Reed lacked Article III standing.
Specifically, the prosecutor asserted that a favorable court

——————
  1 One of the dissents contends that this Court “ha[d] no business inter-

vening in this case in the first place” because “Gutierrez’s suit rests on
the premise that the Fourteenth Amendment’s Due Process Clause gives
him a ‘liberty interest’ in Texas’s voluntarily created procedures.” Post,
at 1–2 (opinion of THOMAS, J.). Even if the merits of Gutierrez’s due pro-
cess claim were relevant to the standing question at issue here (they are
not), Osborne squarely forecloses JUSTICE THOMAS’s view of that claim.
See 

; see also, e.g., Wolff v. McDonnell, 

(1974) (“[L]iberty,” like property, is protected by the Constitution, “even
when the liberty itself is a statutory creation of the State”).
8                    GUTIERREZ v. SAENZ

                      Opinion of the Court

decision would not redress Reed’s injury. That was be-
cause, in the prosecutor’s view, a federal court’s “declara-
tion that the statutory provision [he] attack[s] is unconsti-
tutional” would not “likely” cause the district attorney to
turn over the physical evidence in his possession. Brief for
Respondents 38–39; Reed, 

; California v.
Texas, 

, 673 (2021).
   This Court disagreed and held that Reed had established
standing to pursue the declaratory judgment action. First,
the Court explained, “Reed sufficiently alleged an injury in
fact: denial of access to the requested evidence.” 

. Second, “[t]he state prosecutor, who is the named
defendant, denied access to the evidence and thereby
caused Reed’s injury.” 

 Finally, the Court reasoned,
“if a federal court concludes that Texas’s post-conviction
DNA testing procedures violate due process, that court or-
der would eliminate the state prosecutor’s justification for
denying DNA testing” and thereby remove the barrier be-
tween Reed and the requested DNA testing. 

   The same is true of Gutierrez’s suit. Like Reed and Skin-
ner, Gutierrez alleges that the local prosecutor’s denial of
his request for DNA testing deprived him of “his liberty in-
terests in utilizing state procedures to obtain an acquittal
and/or reduction of his sentence, in violation of his right to
due process of law.” App. 458a. As in Reed, moreover, the
declaratory judgment Gutierrez seeks would redress that
injury by “ ‘order[ing] a change in [the] legal status’ ” of the
parties and “eliminat[ing]” the state prosecutor’s allegedly
unlawful “justification for denying DNA testing.” 

. That is sufficient to resolve this case.
                            B
                            1
  The Fifth Circuit recognized the clear parallels between
this case and Reed. See 93 F. 4th, at 272, 274, n. 3. Never-
theless, the court thought that, unlike in Reed, the local
                    Cite as: 

 (2025)                   9

                         Opinion of the Court

prosecutor here was unlikely to allow testing even if a fed-
eral court “declare[d] Texas may not deny DNA testing that
would affect only the punishment stage.” 93 F. 4th, at 272.
Because the TCCA already concluded Gutierrez would not
be entitled to DNA testing even if Article 64 did apply to
evidence affecting only the punishment stage, the Fifth Cir-
cuit reasoned that the district attorney would “quite likely”
rely on that holding to deny testing again. Id., at 274. Re-
spondents, joined by the principal dissent, similarly urge
that Gutierrez lacks standing because the District Court’s
reason for declaring part of Article 64 unconstitutional “was
only one of several independent state-law grounds support-
ing District Attorney Saenz’s decision to deny access to the
requested evidence.” Brief for Respondents 24; see also
post, at 11–12 (opinion of ALITO, J.).
   This attempt to distinguish Reed is wrong twice over.
First, both respondents and the Fifth Circuit gloss over the
substance of Gutierrez’s complaint, which is the proper fo-
cus of the standing inquiry here. See Davis v. Federal Elec-
tion Comm’n, 

 (2008). Gutierrez’s com-
plaint takes issue not just with Article 64’s limitation to
actual innocence claims, but with the barrier Article 64
erects between Gutierrez and DNA testing. At bottom,
Gutierrez asserts that, to the extent Texas law precludes
him from obtaining the requested evidence, it violates his
rights under the Due Process Clause. App. 457a–458a.
That is why his complaint alleges, among other things, that
Article 64 poses a “virtually impossible [standard] for any-
one convicted under the law of parties to obtain DNA test-
ing,” 

 at 453a, and why he takes issue with the TCCA’s
refusal to consider “newly proffered evidence” in assessing
claims like his own, 

 at 452a, n. 8.2 To the extent the

——————
 2 The principal dissent highlights the TCCA’s rule “that only evidence
10                       GUTIERREZ v. SAENZ

                           Opinion of the Court

Fifth Circuit based its assessment of redressability on the
declaratory judgment the District Court later issued, rather
than Gutierrez’s complaint, it turned the Article III stand-
ing inquiry on its head. Gutierrez’s “standing to bring this
suit,” 93 F. 4th, at 271, does not depend on the relief the
District Court granted on the merits.
   The principal dissent does not dispute that Gutierrez
challenged, in his complaint, each of the roadblocks Article
64 placed between himself and DNA testing. Post, at 13
(opinion of ALITO, J.). Instead, the dissent repeats the Fifth
Circuit’s error, urging that Gutierrez can now obtain only
“reinstatement of the District Court’s declaratory judg-
ment.” Post, at 11. But rather than assert that the scope
of the declaratory judgment retroactively deprived the Dis-
trict Court of jurisdiction over Gutierrez’s complaint, as the
Fifth Circuit erroneously held, the principal dissent sug-
gests instead that “affirmance of the District Court’s declar-
atory judgment” would not help Gutierrez moving forward.
Post, at 13. That argument, however, does nothing to sup-
port the Fifth Circuit’s holding, which the principal dissent
defends, that Gutierrez lacked “standing to bring this suit.”
93 F. 4th, at 271.3

——————
 in the trial record may be considered in determining whether post-con-
viction DNA testing is allowed.” Post, at 17 (opinion of ALITO, J.). That
construction of Texas law is, of course, what Gutierrez has challenged
under the Due Process Clause. See supra, at 5. In Gutierrez’s view, that
new evidence, together with the DNA testing, will help him establish
that he did not in fact “anticipat[e] that a human life would be taken,”
Tex. Code Crim. Proc. Ann., Art. 37.071(2)(b)(2), and that his death sen-
tence must therefore be vacated. Contra, post, at 17 (ALITO, J., dissent-
ing) (insisting that “a favorable decision on Gutierrez’s constitutional ar-
gument would not bolster his challenge to his sentence”). That the
principal dissent is skeptical about the merits of Gutierrez’s due process
challenge is not pertinent because the Court only granted certiorari to
consider Gutierrez’s Article III standing to bring his suit. See post, at
18.
   3 As the principal dissent sees it, the Fifth Circuit held only that
                      Cite as: 

 (2025)                      11

                           Opinion of the Court

                               2
   Second, and more fundamentally, the Fifth Circuit erred
in transforming the redressability inquiry into a guess as to
whether a favorable court decision will in fact ultimately
cause the prosecutor to turn over the evidence. 

.
In Reed, just like in this case, the Texas courts had prof-
fered multiple reasons for denying Reed’s Article 64 motion,
including that “Reed did not demonstrate that he would
have been acquitted if the DNA results were exculpatory,”

, and that Reed “failed to establish that his
request [was] not made to unreasonably delay the execution
of his sentence,” Reed v. State, 

 (Tex.
Crim. App. 2017). The principal dissent claims that, for
Reed, “striking down the chain-of-custody rule” would have
“critically undermined the TCCA’s holding” as to “[t]wenty-
one additional items,” which “could have been considered”
if the declaratory judgment issued in his favor. Post, at 15–
16. Yet even absent the chain-of-custody rule, Reed still
faced the TCCA’s assessment that his DNA testing request
was “untimely,” 

, and the trial court’s
determination that “exculpatory results from DNA testing
of all the evidence he requested to be tested” would not es-
tablish his innocence, 

. This Court nevertheless
——————
Gutierrez lacked standing to press one of his arguments in favor of Arti-
cle 64’s unconstitutionality: that “ ‘the state violates due process by . . .
preventing testing if resulting evidence would be relevant only to the
sentence.’ ” Post, at 11, n. 7 (quoting 93 F. 4th, at 271). Even if that
particular argument about Article 64’s unlawfulness could be disentan-
gled from the rest of Gutierrez’s due process claim, see supra, at 5, 9,
however, the dissent never embraces the Fifth Circuit’s view that
Gutierrez lacked “standing to bring this suit” in the District Court, 93 F.
4th, at 271. Instead, it suggests that Gutierrez lacked standing to seek
“affirmance of th[at] claim” from the Fifth Circuit. Post, at 11, n. 7. It
was the district attorney, not Gutierrez, who sought relief from the Fifth
Circuit, and there is no reason to think the Courts of Appeal must dis-
miss a case for lack of standing simply because the nonappealing party
did not cross-appeal the scope of the District Court’s judgment.
12                  GUTIERREZ v. SAENZ

                      Opinion of the Court

reasoned in Reed that, “if a federal court concludes that
Texas’s post-conviction DNA testing procedures violate due
process,” that court order would redress his injury by “elim-
inat[ing]” the state prosecutor’s reliance on Article 64 as a
reason for denying DNA testing. 

. The
particular declaratory judgment Reed requested was thus
no more likely to yield a change in the district attorney’s
conduct than the one Gutierrez sought here. Contra, post,
at 10, 14–18 (opinion of ALITO, J.).
   What was true in Reed thus applies here, too. There is
little doubt that Saenz considers Article 64 in his assess-
ment of whether to provide requested DNA evidence. In-
deed, Saenz confirmed at oral argument that he would
likely “turn over the evidence” if he thought Article 64 enti-
tled Gutierrez to DNA testing. Tr. of Oral Arg. 71. A de-
claratory judgment in Gutierrez’s favor would accordingly
redress his injury by removing the allegedly unconstitu-
tional barrier Article 64 erected between Gutierrez and the
requested testing.
   To be sure, Saenz nevertheless states that any declara-
tory judgment will not affect his ultimate willingness to
turn over the evidence. He and the principal dissent urge
that the Court need not even “speculate” about what he
might do because, “[a]fter securing a declaratory judgment
from the district court,” Gutierrez again sought DNA test-
ing and “Saenz refused.” Brief for Respondents 27; see post,
at 13 (opinion of ALITO, J.). This, again, is a familiar re-
frain. The prosecutor in Reed, too, maintained that a de-
claratory judgment would not “ ‘bring about’ ” “ ‘any change
in [his] conduct.’ ” Brief for Respondents 38–39; Reed, 

 (THOMAS, J., dissenting). This Court was un-
moved by that assertion. See 

. The reason is sim-
ple: That a prosecutor might eventually find another rea-
son, grounded in Article 64 or elsewhere, to deny a
prisoner’s request for DNA testing does not vitiate his
standing to argue that the cited reasons violated his rights
                  Cite as: 

 (2025)            13

                      Opinion of the Court

under the Due Process Clause. See, e.g., Federal Election
Comm’n v. Akins, 

 (1998) (“[T]hose ad-
versely affected by a discretionary agency decision gener-
ally have standing to complain that the agency based its
decision upon an improper legal ground . . . even though the
agency . . . might later, in the exercise of its lawful discre-
tion, reach the same result for a different reason”); Lujan v.
Defenders of Wildlife, 

 (1992)
(“[U]nder our case law, one living adjacent to the site for
proposed construction of a federally licensed dam has
standing to challenge the licensing agency’s failure to pre-
pare an environmental impact statement, even though he
cannot establish with any certainty that the statement will
cause the license to be withheld or altered . . . ”).
                              C
  Finally, Saenz asserts in the alternative that this case is
now moot because Saenz refused Gutierrez’s request for
DNA testing even after the District Court issued the declar-
atory judgment. Brief for Respondents 42–44. That claim
fails, too. As Saenz himself recognizes, “a case ‘becomes
moot only when it is impossible for a court to grant any ef-
fectual relief whatever to the prevailing party.’ ” Chafin v.
Chafin, 

 (2013) (quoting Knox v. Service
Employees, 

 (2012)). It is not enough that
“the practical impact of any decision is not assured.” 

.
  In any event, a procedural due process claim like the one
Gutierrez presses is not mooted by the defendant’s mid-ap-
peal promise that, no matter the result of a lawsuit, the ul-
timate outcome will not change. Holding otherwise would
allow all manner of defendants to manufacture mootness by
ensuring that, no matter what procedures a court requires
the defendant to employ, the same substantive outcome will
result. In that world, the person “living adjacent to the site
for proposed construction of a federally licensed dam” would
14                  GUTIERREZ v. SAENZ

                      Opinion of the Court

lose her claim “to challenge the licensing agency’s failure to
prepare an environmental impact statement” as long as the
agency promised that the statement would not cause the
license to be withheld or altered. Lujan, 

. Article III mandates no such result.
                        *     *    *
  In the end, Reed is indistinguishable. Gutierrez has
standing to challenge Texas’s DNA testing procedures un-
der the Due Process Clause. The judgment of the U. S.
Court of Appeals for the Fifth Circuit is therefore reversed,
and the case is remanded for further proceedings consistent
with this opinion.
                                             It is so ordered.
                 Cite as: 

 (2025)            1

                    Opinion of BARRETT, J.

SUPREME COURT OF THE UNITED STATES
                         _________________

                         No. 23–7809
                         _________________


  RUBEN GUTIERREZ, PETITIONER v. LUIS SAENZ,
                    ET AL.

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                        [June 26, 2025]

  JUSTICE BARRETT, concurring in part and concurring in
the judgment.
  When the Fifth Circuit attempted to distinguish this case
from Reed v. Goertz, 

 (2023), it failed to con-
sider the breadth of the relief that Gutierrez requested in
his complaint. See ante, at 9. I would reverse on that basis
alone. The Court goes further, borrowing from our some-
what relaxed redressability inquiry in administrative-law
procedural injury cases. See ante, at 11–13 (citing Federal
Election Comm’n v. Akins, 

 (1998); Lujan v.
Defenders of Wildlife, 

 (1992)). By
invoking Akins and Lujan in the unique context of requests
for DNA evidence from Texas prosecutors, the Court mud-
dies the waters of standing doctrine. I respectfully join all
but Part II–B–2 of the Court’s opinion.
                      Cite as: 

 (2025)                     1

                         THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
                               _________________

                              No. 23–7809
                               _________________


  RUBEN GUTIERREZ, PETITIONER v. LUIS SAENZ,
                    ET AL.

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                             [June 26, 2025]

  JUSTICE THOMAS, dissenting.
  I join JUSTICE ALITO’s principal dissent because I agree
that Ruben Gutierrez lacks standing to bring a federal suit
alleging that Texas’s post-conviction DNA testing proce-
dures violate due process.1 I write separately to emphasize
that this Court has no business intervening in this case in
the first place. The Constitution does not require any State
to establish procedures for state prisoners to challenge the
validity of their convictions after trial. Yet, Gutierrez’s suit
rests on the premise that the Fourteenth Amendment’s Due

——————
   1 I agree that the Court “flagrantly distorts the standard” that this

Court articulated in Reed v. Goertz, 

 (2023), by deeming
irrelevant the independent grounds that the Texas courts have given for
denying DNA testing to Gutierrez. Post, at 9–11 (ALITO, J., dissenting).
I also continue to believe that Reed made “chaos” of our standing doc-
trine. 

 (THOMAS, J., dissenting). Even if the Texas courts
had not articulated alternative grounds for denying Gutierrez testing,
“an abstract declaration” that Texas’s limits on DNA testing are uncon-
stitutional cannot redress any injury because it does not compel any
“change in conduct” on the part of the district attorney. 

.
Gutierrez’s real dispute is with the Texas courts for denying his motions
for testing, but the Rooker-Feldman doctrine prohibits parties from at-
tacking state-court judgments in federal district court. See Reed, 598
U. S., at 244–252 (THOMAS, J., dissenting); Rooker v. Fidelity Trust Co.,

 (1923); District of Columbia Court of Appeals v. Feldman,

 (1983).
2                    GUTIERREZ v. SAENZ

                      THOMAS, J., dissenting

Process Clause gives him a “liberty interest” in Texas’s vol-
untarily created procedures. That premise cannot be
squared with any principled reading of the Due Process
Clause. I therefore disagree with our decision to grant cer-
tiorari and revive Gutierrez’s challenge. Our intervention
serves no purpose other than to exacerbate the already
egregious delays endemic to capital litigation.
                                I
                                A
   The Texas Constitution provides capital defendants the
right to a trial by jury. Art. 1, §10. It further provides that,
after a defendant is convicted and sentenced, he may file a
direct appeal to the Texas Court of Criminal Appeals
(TCCA), the State’s highest court for criminal cases. Art. 5,
§5(b). Texas law also allows prisoners sentenced to death
to challenge their conviction and sentence collaterally by
filing a petition for habeas corpus in their court of convic-
tion. Tex. Code Crim. Proc. Ann., Art. 11.071 (Vernon Cum.
Supp. 2024). Even if the prisoner’s trial was error free, he
may obtain habeas relief under state law if he produces
newly discovered evidence establishing that he is actually
innocent of the offense. Ex parte Mayhugh, 

 (Tex. Crim. App. 2016).
   Chapter 64 of the Texas Code of Criminal Procedure fur-
ther allows convicted defendants to seek testing of DNA ev-
idence that was in the possession of the State during trial.
Arts. 64.01(a)(2)(a–1), (b) (Vernon 2018). Upon the defend-
ant’s motion, the convicting court may order testing if cer-
tain conditions are met, including that the evidence still ex-
ists in a testable condition, that the defendant can show
that he likely would not have been convicted had he ob-
tained exculpatory results from DNA testing, and that the
defendant can show that he is not bringing the motion un-
reasonably to delay his execution. Art. 64.03(a). Defend-
ants who obtain DNA testing may use the results to support
                  Cite as: 

 (2025)             3

                     THOMAS, J., dissenting

their state habeas petitions. Thacker v. State, 

 (Tex. Crim. App. 2005) (per curiam).
                                B
   A Texas jury convicted Gutierrez and sentenced him to
death for the 1998 robbery and murder of Escolastica Har-
rison. Having thrice failed to obtain DNA testing under
Chapter 64 in state court, he now claims that several of
Chapter 64’s restrictions on obtaining DNA testing violate
the Due Process Clause of the Fourteenth Amendment. See
ante, at 3–5.
   To make sense of Gutierrez’s claim, we must first under-
stand what rights the Due Process Clause protects. The
Clause provides that no State shall “deprive any person of
life, liberty, or property, without due process of law.” Amdt.
14, §1. In other words, the State cannot decide to take away
an individual’s life, liberty, or property unless it adheres to
certain procedures. But, the Due Process Clause does not
protect all rights—only life, liberty, and property. Thus, the
first step in any due process analysis is to determine
whether the right that the individual asserts falls within
one of these three categories. See Board of Regents of State
Colleges v. Roth, 

, 570–571 (1972). If it does
not, the “requirements” of due process do not “apply.” 

   By seeking to execute Gutierrez and to imprison him un-
til his execution, Texas undoubtedly seeks to deprive
Gutierrez of his life and liberty. Yet, Gutierrez rightly does
not base his due process claim on either of these depriva-
tions, because he has received far more than the process re-
quired to justify them. Under our precedents, Texas must
conduct a trial before it can imprison or execute a person as
punishment for a crime. See Herrera v. Collins, 

, 398–399 (1993). But, the “State is not required by the
Federal Constitution to provide . . . a right to appellate re-
view.” Griffin v. Illinois, 

 (1956) (plurality
opinion); accord, 

 (Frankfurter, J., concurring in
4                        GUTIERREZ v. SAENZ

                          THOMAS, J., dissenting

judgment); McKane v. Durston, 

 (1894).
Nor need it provide “[p]ostconviction relief,” which “is even
further removed from the criminal trial.” Pennsylvania v.
Finley, 

, 556–557 (1987). Texas thus gave
Gutierrez at his 1999 trial all the process necessary to im-
prison and execute him. The ensuing quarter century of
direct and collateral review has been additional process
above the constitutional floor.
  Gutierrez instead asserts that he has a distinct “ ‘liberty
interest’ ” in Texas’s “state-created right to postconviction”
relief. Ante, at 6–7. In Gutierrez’s view, part of the “liberty”
that Texas prisoners enjoy under the Fourteenth Amend-
ment is a right to obtain release pursuant to Texas’s habeas
statute, which the State takes away every time its courts
deny habeas relief. Thus, Gutierrez contends, if Texas law
does not afford prisoners sufficient procedural rights to bol-
ster their habeas petitions—such as, in his case, access to
DNA testing—the State has deprived them of liberty with-
out the due process of law.2
——————
  2 Gutierrez also claims that executive clemency is a “liberty interest”

that he cannot be denied without access to DNA testing. But, “noncapital
defendants do not have a liberty interest in traditional state executive
clemency.” District Attorney’s Office for Third Judicial Dist. v. Osborne,

 (2009); see Connecticut Bd. of Pardons v. Dumschat, 

 (1981). In Ohio Adult Parole Authority v. Woodard, 

 (1998), Chief Justice Rehnquist concluded for a plurality of the
Court that the same is true of capital defendants, because trial and sen-
tencing extinguish the defendant’s “interest in not being executed in ac-
cord with his sentence.” 

. When applying for clemency, the
“defendant in effect accepts the finality of the death sentence for pur-
poses of adjudication, and appeals for clemency as a matter of grace.”

. Justice O’Connor, in contrast, left open the possibility that
“some minimal procedural safeguards apply to clemency proceedings,”
such that a due process violation “might” occur if “a state official flipped
a coin to determine whether to grant clemency.” 

 (opinion con-
curring in part and concurring in judgment). But, even if Justice O’Con-
nor’s view is correct, Gutierrez plainly cannot rely on it to establish a due
process violation. DNA testing is not necessary to make the Texas clem-
ency process less arbitrary than a coin flip.
                  Cite as: 

 (2025)              5

                      THOMAS, J., dissenting

   Gutierrez bases his asserted interest on this Court’s de-
cision in District Attorney’s Office for Third Judicial Dist. v.
Osborne, 

 (2009). There, the Court concluded
that a prisoner has a “postconviction liberty interest” under
the Due Process Clause if state law grants him “an entitle-
ment . . . to prove his innocence even after a fair trial has
proved otherwise.” 

 at 67–68.
                             II
   The Fourteenth Amendment does not protect Gutierrez’s
asserted “liberty interest.” As originally understood, “lib-
erty” in the Fourteenth Amendment likely referred only to
freedom from physical restraint. It did not include entitle-
ments to government-created benefits. This Court’s con-
trary precedent stems from a conscious, policy-based rejec-
tion of the Due Process Clause’s original meaning.
                              A
   The original meaning of “liberty” in the Fourteenth
Amendment was likely far narrower than our precedents
currently hold. The term originally appears to have re-
ferred only to freedom from physical restraint. But, in the
Lochner era, the Court began to hold that “liberty” includes
fundamental rights generally. See Lochner v. New York,

 (1905). This Court has since adhered to that
broader meaning.
   As with any legal text, we must construe the Fourteenth
Amendment according to the ordinary meaning of its terms
at the time of its enactment. Gibbons v. Ogden, 

,
188–189 (1824); T. Cooley, Constitutional Limitations 55
(1868). We may not defer to “demonstrably erroneous”
precedents that are inconsistent with the Amendment’s
original meaning. Gamble v. United States, 

,
717–718 (2019) (THOMAS, J., concurring).
   When the Fourteenth Amendment was adopted in 1868,
its Due Process Clause was understood to embody an “old
6                    GUTIERREZ v. SAENZ

                      THOMAS, J., dissenting

. . . principle” dating back to Magna Carta, the great 13th-
century charter of English liberties. Munn v. Illinois, 

, 123–124 (1877). Magna Carta provided that a
“free man” may not be “prosecute[d],” “imprisoned,” or “de-
stroyed” except “by the law of the land.” Magna Carta, ch.
39 (1215), in A. Howard, Magna Carta: Text and Commen-
tary 43 (1964). A century later, a statute interpreting this
“law of the land” provision stated that “no Man” shall be
“imprisoned” or “put to Death, without being brought in An-
swer by due Process of the Law.” 28 Edw. III, c. 3 (1354);
see also 1 E. Coke, The Second Part of the Institutes of the
Laws of England 50 (1642) (interpreting “by the Law of the
Land” to be equivalent to “by due Process of the Common
law”).
    Blackstone referred to Magna Carta’s “law of the land”
provision as protecting the three “absolute rights of every
Englishman”: the “right of personal security,” including
“life”; “the right of personal liberty”; and “the right of pri-
vate property.” 1 W. Blackstone, Commentaries on the
Laws of England 123, 125 (1765) (Blackstone). This formu-
lation “heavily” influenced the founding generation of
America. Obergefell v. Hodges, 

 (2015)
(THOMAS, J., dissenting). Many early state constitutions
contained provisions “that replicated Magna Carta’s lan-
guage, but were modified to refer specifically to ‘life, liberty,
or property.’ ” Ibid., and n. 3 (collecting examples). And,
the Fifth Amendment similarly prohibited the Federal Gov-
ernment from depriving any person “of life, liberty, or prop-
erty, without due process of law.”
    “Liberty” in the Fifth Amendment likely refers only to
freedom from physical restraint. Blackstone defined “the
right of personal liberty” as “the power of loco-motion, of
changing situation, or removing one’s person to whatsoever
place one’s own inclination may direct; without imprison-
ment or restraint, unless by due course of law.” 1 Black-
                     Cite as: 

 (2025)                     7

                         THOMAS, J., dissenting

stone 130. Following Blackstone, “[s]tate decisions inter-
preting [state due process] provisions between the founding
and the ratification of the Fourteenth Amendment almost
uniformly construed the word ‘liberty’ to refer only to free-
dom from physical restraint.” Obergefell, 576 U. S., at 724–
725 (THOMAS, J., dissenting) (citing C. Warren, The New
“Liberty” Under the Fourteenth Amendment, 

, 441–445 (1926) (Warren)). In light of this his-
tory, “it is hard to see how the ‘liberty’ protected by the
[Fifth Amendment] could be interpreted to include any-
thing broader.” 

 (THOMAS, J., dissenting).
   “If the Fifth Amendment uses ‘liberty’ in this narrow
sense, then the Fourteenth Amendment likely does as well.”

 When the language of a provision “is obviously trans-
planted from another legal source, it brings the old soil with
it.” Taggart v. Lorenzen, 

, 560 (2019) (internal
quotation marks omitted). Applying that well-established
principle, this Court has long recognized the Fourteenth
Amendment’s due process protections as having “the same
sense” as the Fifth Amendment’s. Hurtado v. California,

, 534–535 (1884); accord, Slaughter-House
Cases, 

, 80–81 (1873); Hibben v. Smith, 

 (1903); Malinski v. New York, 

(1945) (opinion of Frankfurter, J.).3
——————
  3 Some decisions of this Court, while recognizing the general principle

that the Fifth and Fourteenth Amendments’ Due Process Clauses should
be read together, have left open the possibility “that questions may arise
in which different constructions and applications of [the Clauses] may be
proper.” French v. Barber Asphalt Paving Co., 

 (1901).
Even assuming that caveat is correct, however, reading “liberty” in the
Fourteenth Amendment to mean fundamental rights generally, see infra
this page and 8, would appear to render the Fourteenth Amendment so
broad that it would destroy the general rule that the Fifth and Four-
teenth Amendments should be read coextensively. And, even if “liberty”
in the Fourteenth Amendment were entirely decoupled from its meaning
in the Fifth Amendment, I am aware of nothing showing that the term
was understood to encompass government entitlements before the 1970s.
8                      GUTIERREZ v. SAENZ

                       THOMAS, J., dissenting

   It was not until the Lochner era that this Court adopted
a broader understanding of “liberty.” During that period,
stretching from 1897 to 1937, this Court relied on the “legal
fiction” of “substantive” due process to invalidate disfavored
social and economic legislation by States. McDonald v. Chi-
cago, 

 (2010) (THOMAS, J., concurring in
part and concurring in judgment). Under that fiction, the
Due Process Clauses forbade all government infringement
on “certain ‘fundamental’ liberty interests . . . , no matter
what process is provided.” Reno v. Flores, 

 (1993). To make the fiction work, the Court reinter-
preted the Clauses’ guarantee of “ ‘process’ ” to encompass
“substance,” a notion that “strains credulity for even the
most casual user of words.” McDonald, 

(opinion of THOMAS, J.).
   The Court’s embrace of substantive due process also re-
quired it to jettison the concept of “liberty” as only freedom
from restraint, so that it could encompass other rights that
the Court deemed “fundamental.” In Allgeyer v. Louisiana,

 (1897), this Court’s first substantive due pro-
cess decision under the Fourteenth Amendment, the Court
for the first time broadened the definition of “liberty” to in-
clude the freedom of contract. 

; see Warren 445–
449 (tracing the interpretation of “liberty” from the Four-
teenth Amendment’s ratification to Allgeyer). By the height
of the Lochner era, the Court had stretched the term to
cover “those privileges long recognized at common law as
essential to the orderly pursuit of happiness by free men.”
Meyer v. Nebraska, 

 (1923). These privi-
leges included “the right of the individual to contract, to en-
gage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up
children,” and “to worship God according to the dictates of
his own conscience.” 

——————
See infra, at 10–13.
                  Cite as: 

 (2025)            9

                     THOMAS, J., dissenting

  This Court eventually repudiated Lochner’s muscular
version of substantive due process—at least for economic
rights. See Ferguson v. Skrupa, 

 (1963);
West Coast Hotel Co. v. Parrish, 

 (1937). But,
the Court continues to treat Meyer’s definition of “liberty”
as authoritative. E.g., Roth, 

.
                                B
    Gutierrez’s claim of a state-created “liberty interest” in
obtaining post-conviction relief is inconsistent with the
original understanding of “liberty.” From the founding
through the Lochner era, “liberty” was understood to be a
natural, pre-political right. Such an understanding is fun-
damentally incompatible with a “right” bestowed by the
government.
    Blackstone squarely framed life, liberty, and property as
natural rights that existed before government. In an ac-
count “heavily influenced” by the political theories of John
Locke, Obergefell, 576 U. S., at 726–727, n. 4 (THOMAS, J.,
dissenting), Blackstone explained that, in the state of na-
ture, every man has the “power of acting as [he] thinks fit,
without any restraint or control.” 1 Blackstone 121. When
man “enters into society, [he] gives up a part of his natural
liberty” to enjoy the rest of it in security. 

 Thus, the
liberty that each man enjoys as “a member of society, is no
other than natural liberty so far restrained by human laws
. . . as is necessary and expedient for the general advantage
of the publick.” 

 This includes “the absolute rights” of
life, liberty, and property, which exist in the “state of na-
ture, and which every man is intitled to enjoy whether out
of society or in it.” Id., at 119 (emphasis deleted). In other
words, according to Blackstone, life, liberty, and property
are rights that predate government and that were not sur-
rendered when government was established; they are not
entitlements that the government can bestow by positive
law.
10                   GUTIERREZ v. SAENZ

                     THOMAS, J., dissenting

   Founding-era Americans shared this understanding of
liberty. The Lockean “idea of civil liberty as natural liberty
constrained by human law” “permeated the 18th-century
political scene in America.” Obergefell, 576 U. S., at 726–
728 (THOMAS, J., dissenting). For instance, the Virginia
Declaration of Rights of 1776—“the first of the colonial bills
of rights,” Klopfer v. North Carolina, 

(1967)—proclaimed that “all men . . . by nature” possess the
“inherent rights” of “life,” “liberty,” and “property,” which
they retain “when they enter into a state of society.” §I, in
1 Milestone Documents in American History 154 (P. Finkel-
man ed. 2008) (Finkelman). Similarly, the Declaration of
Independence asserts that the “unalienable rights” of “Life,
Liberty, and the pursuit of Happiness” come from the “Cre-
ator,” and that, “to secure these rights, governments are in-
stituted among Men.” ¶2.
   The understanding of liberty as a natural right persisted
until well after the enactment of the Fourteenth Amend-
ment. Even as this Court expanded the notion of “liberty”
in the Lochner era, it remained faithful to the idea of liberty
as “individual freedom from governmental action, not as a
right to a particular governmental entitlement.” Obergefell,

 (THOMAS, J., dissenting). None of the lib-
erties enumerated in Meyer, for instance, could be charac-
terized as state-created benefits. See 

. To
the contrary, when interpreting the Due Process Clauses,
the Court distinguished between rights inherent to the in-
dividual and privileges established by the government. The
Court recognized, for example, that a prisoner’s statutory
entitlement to early release on parole was a “privilege” that
“comes as an act of grace to one convicted of a crime,” not a
right protected by the Due Process Clauses. Escoe v. Zerbst,

, 492–493 (1935).
   In short, entitlements established by the government
cannot be “liberty” under the Due Process Clause of the
                  Cite as: 

 (2025)            11

                     THOMAS, J., dissenting

Fourteenth Amendment. Gutierrez thus has no “liberty in-
terest” in Texas’s state-created right to post-conviction re-
lief.
                                C
   Gutierrez rests the legitimacy of his due process claim on
Osborne, which concluded that a prisoner has a “ ‘liberty in-
terest’ ” when state law gives him “an entitlement . . . to
prove his innocence even after a fair trial has proved other-
wise.” 

. But, Osborne did not base this con-
clusion on the original meaning of “liberty” in the Four-
teenth Amendment. It instead relied on a line of cases
ultimately tracing back to Goldberg v. Kelly, 

(1970), where this Court relied on policy considerations to
redefine “property” to include government entitlements.
   Scholars generally agree that the term “property” in the
Due Process Clauses originally referred only to those inter-
ests traditionally recognized as property at common law.
See, e.g., 1 K. Hickman & R. Pierce, Administrative Law
§7.4, pp. 903–904 (7th ed. 2024); G. Lawson, Federal Ad-
ministrative Law 350 (1998); L. Tribe, American Constitu-
tional Law §10–8, pp. 680–681 (2d ed. 1988). Property at
common law did not include entitlements to government
benefits. See 2 Blackstone 16–19, 384–399; J. Kent, Com-
mentaries on American Law 324–330, 613–614 (W. Browne
ed. 1894) (Kent). And, consistent with their general view of
civil liberties, Americans at the founding and in the early
Republic viewed property—like liberty—as a natural, pre-
political right. See, e.g., Virginia Declaration of Rights, §I,
in Finkelman 154; Calder v. Bull, 

, 388–389
(1798) (opinion of Chase, J.); H. Baldwin, A General View
of the Origin and Nature of the Constitution and Govern-
ment of the United States 136 (1837); Kent 203.
   The understanding of property as a natural right per-
sisted through the ratification of the Fourteenth Amend-
ment. After the Civil War, this Court held that a statute-
12                   GUTIERREZ v. SAENZ

                      THOMAS, J., dissenting

of-limitations defense was not “property” within the mean-
ing of the Constitution because it “is the creation of conven-
tional law,” not a “natural right.” Campbell v. Holt, 

 (1885). And, state-court decisions in the
years leading up to and immediately following the Amend-
ment’s ratification continued to recognize property as a nat-
ural right. See, e.g., People v. Quant, 

(NY Sup. Ct. 1855); Sherman v. Buick, 

(1867); Munn v. People, 

 (1873), aff ’d, 

.
   Consistent with this view, “it has traditionally been held”
that the Due Process Clauses do not apply where it is “pos-
sible to characterize [the asserted] private interest . . . as a
mere privilege subject to the [government’s] plenary
power.” Cafeteria & Restaurant Workers v. McElroy, 

 (1961). Thus, from the antebellum period to
the 1960s, this Court consistently recognized that govern-
ment employment, veterans’ benefits, admission to the
country as an alien, and other government-created entitle-
ments are not property or otherwise cognizable interests
under the Due Process Clauses. See, e.g., United States ex
rel. Knauff v. Shaughnessy, 

 (1950); Oce-
anic Steam Nav. Co. v. Stranahan, 

, 340–343
(1909); Buttfield v. Stranahan, 

 (1904);
Taylor v. Beckham, 

 (1900); Crenshaw v.
United States, 

 (1890); United States v.
Teller, 

 (1883); Butler v. Pennsylvania, 

 (1851); Kendall v. United States ex rel.
Stokes, 

, 592–593 (1838).
   In the 1960s, Professor Charles Reich of the Yale Law
School published two articles proposing a radical reinter-
pretation of the concept of property. See Individual Rights
and Social Welfare: The Emerging Legal Issues, 74 Yale
L. J. 1245 (1965) (Individual Rights); The New Property, 73
Yale L. J. 733 (1964) (The New Property). Taking direct
aim at the Framers’ understanding, Reich argued that
                  Cite as: 

 (2025)            13

                     THOMAS, J., dissenting

“[p]roperty is not a natural right but a deliberate construc-
tion by society” that could be redefined to meet contempo-
rary social needs. 

. In his view, the rise of “the
welfare state” and the dependence it fostered meant that
“each man cannot be wholly the master of his own destiny.”

. Thus, he concluded, to protect the now-depend-
ent citizenry from arbitrary government power, the legal
system must “mak[e government] benefits into rights” akin
to traditional property rights. 

 In other words, “[w]e
must create a new property.” 

.
   This Court embraced Reich’s vision in 1970, holding that
“welfare benefits” are property under the Fourteenth
Amendment’s Due Process Clause because they “are a mat-
ter of statutory entitlement for persons qualified to receive
them.” Goldberg, 397 U. S., at 261–262. The Court dis-
missed any distinction between “a ‘privilege’ and . . . a
‘right,’ ” and did not attempt to ground its conclusion in the
text or history of the Due Process Clause. 

 (some
internal quotation marks omitted). The Court instead gave
a sociological justification, “simply highlight[ing] the social
importance of ‘entitlements,’ which had come to make up
‘[m]uch of the existing wealth in this country,’ and which
only the poor had been theretofore unable to effectively en-
force.” Williams v. Reed, 

, ___–___, n. (2025)
(THOMAS, J., dissenting) (slip op., at 3–4, n.); see Goldberg,

, and n. 8 (citing Individual Rights 1255;
The New Property).
   Soon after Goldberg’s radical redefinition of “property” to
include government-created entitlements, this Court rede-
fined “liberty” along similar lines. The Court held that, in
at least some circumstances, the denial of parole triggered
the Due Process Clause because “a person’s liberty is
equally protected, even when the liberty itself is a statutory
creation of the State.” Wolff v. McDonnell, 

 (1974); accord, Meachum v. Fano, 

, 226
14                      GUTIERREZ v. SAENZ

                        THOMAS, J., dissenting

(1976). To justify this shift, the Court relied on “the ac-
cepted due process analysis as to property.” Wolff, 418
U. S., at 557–558; accord, Meachum, 

 (cit-
ing Goldberg, 

); see also Evitts v. Lucey, 

, 400–401 (1985) (citing Goldberg, 

).
   As with property, the Court’s redefinition of “liberty” was
a conscious break with the past. The Court rejected the in-
quiry of “whether [a] parolee’s liberty is a ‘right’ or a ‘privi-
lege’ ” as “hardly useful any longer.” Morrissey v. Brewer,

 (1972) (emphasis added). It expressly
repudiated its earlier case law holding that probation, as
“an ‘act of grace,’ ” triggers no due process protections. See
Gagnon v. Scarpelli, 

 (1973) (quoting
Escoe, 

). And, seemingly to obfuscate the
awkwardness of referring to a government-created entitle-
ment as “liberty,” the Court began to speak instead of “lib-
erty interests.” Kenosha v. Bruno, 

 (1973)
(internal quotation marks omitted). Although it is now
standard terminology in due process litigation, the phrase
did not appear in the United States Reports before Gold-
berg.
   Osborne relied on this line of cases to recognize a “liberty
interest” in post-conviction procedures. Invoking the lan-
guage of Goldberg, the Court asserted that a prisoner has a
“liberty interest” in a State’s post-conviction procedures if
those procedures confer “an entitlement . . . to prove his in-
nocence” after trial. 

 (emphasis added).
And, to establish that an entitlement of this kind can give
rise to a viable due process claim, the Court cited Connecti-
cut Bd. of Pardons v. Dumschat, 

 (1981),
and Wolff, 418 U. S., at 556–558, both of which relied on
this Court’s post-Goldberg redefinition of “property.”4 See
——————
  4 Wolff invoked “the accepted due process analysis as to property” to

hold that a “statutory right to good time” credits constituted a liberty
                     Cite as: 

 (2025)                   15

                         THOMAS, J., dissenting

.
   Osborne thus cannot support Gutierrez’s asserted “lib-
erty interest.” We may, consistent with the judicial power,
defer to earlier decisions that “apply traditional tools of con-
struction and arrive at different,” but reasonable, “interpre-
tations of legal texts.” Gamble, 587 U. S., at 721 (THOMAS,
J., concurring). But, Osborne rests on nothing more than
Goldberg’s abandonment of the Due Process Clause’s origi-
nal meaning.
                              III
   We should correct the error we made in Osborne, which
seriously undermines States’ interests in finality and in
providing relief to compelling claims of actual innocence. At
the very least, we should cease finding novel ways to revive
due process challenges to post-conviction DNA testing pro-
cedures, as the Court does today.
   In enacting Chapter 64, Texas has voluntarily chosen to
prioritize claims of actual innocence at a significant cost to
its interest in finality. Thanks in no small part to decisions
of this Court, capital cases today are routinely plagued by
decades-long delays between sentencing and execution,
with much of the litigation concerning convoluted proce-
dural issues having little or nothing to do with the guilt or
innocence of the defendant. See Baze v. Rees, 

,
69–70 (2008) (ALITO, J., concurring); 

 (Scalia, J.,
concurring in judgment). This delay undermines the “im-
portant interest” that both “the State and the victims of
crime have . . . in the timely enforcement of a sentence.”
Hill v. McDonough, 

 (2006). In spite
of these interests, Texas has willingly decided to make
freestanding actual-innocence claims cognizable on post-
——————
interest. 418 U. S., at 557–558. Dumschat relied on Wolff and Meachum
v. Fano, 

 (1976), to establish that a “ ‘state-created
right’ ” can be a cognizable liberty interest. 

. Meachum
cited Goldberg for that point. 

.
16                   GUTIERREZ v. SAENZ

                     THOMAS, J., dissenting

conviction review and to create a process for obtaining DNA
testing to support such claims. In this respect, Texas is
more generous to capital defendants than the Federal Gov-
ernment, which offers no statutory mechanism for raising a
freestanding actual-innocence claim. See Herrera, 

.
   By recognizing a “liberty interest” in Texas’s post-
conviction procedures, however, this Court has converted
those procedures from a means of vindicating compelling
claims of actual innocence into a tool for obstruction. In
addition to trial, direct appeal, and multiple rounds of col-
lateral review in state and federal court, Texas must now
prevail in yet another arena—§1983 litigation challenging
its DNA testing procedures—before it can carry out its law-
fully imposed sentences. See Rev. Stat. §1979, 

. And, given the novelty of this litigation, such suits
give rise to a host of difficult threshold justiciability ques-
tions that must be resolved before a federal court can reach
the merits of the due process challenge, much less before a
state court can resolve the prisoner’s claim of actual inno-
cence.
   We need look no further than this case. Twenty-six years
after the brutal murder of Escolastica Harrison, this Court
stayed Gutierrez’s impending execution. 

(2024). Why? Not because Gutierrez had made a compel-
ling allegation of innocence. Rather, the Court stayed the
execution to decide whether Gutierrez has standing to raise
a due process challenge to Texas’s post-conviction proce-
dures. There is every reason to think that the ultimate
claim of actual innocence on which Gutierrez’s case rests is
baseless. The key premise that Gutierrez hopes that DNA
testing will establish—that he was not inside Harrison’s
home when she was stabbed to death with a pair of screw-
drivers—is contradicted by his own confession, to say noth-
ing of the unanimous statements of his accomplices. See
post, at 2–3 (ALITO, J., dissenting). The TCCA has held
                      Cite as: 

 (2025)                    17

                         THOMAS, J., dissenting

three times that Gutierrez would likely still have been con-
victed of capital murder as an accomplice even if he could
prove that he had not personally been inside Harrison’s
home. See post, at 6–7. And, in Gutierrez’s most recent
motion for DNA testing, the trial court explicitly found that
Gutierrez had made the motion “for the purpose of unrea-
sonably delaying the execution of [his] sentence.” App.
655a. In short, Texas could reasonably determine that the
need for finality outweighed the upsides of giving Gutierrez
additional process. Yet, because this Court has found a “lib-
erty interest” where none exists, that judgment must be
thwarted until this additional multiyear front of litigation
reaches its conclusion. If this is what States can expect
when they create new post-conviction avenues for raising
actual-innocence claims, they may well conclude that doing
so is not worth the cost.5
                          *    *    *
   Gutierrez’s suit rests on a non-existent “liberty interest.”
The Due Process Clause protects an individual’s natural
liberty from government interference. It does not guaran-
tee entitlements to government benefits, like Texas’s volun-
tarily adopted post-conviction procedures. By intervening
to revive this suit, the Court facilitates precisely the “un-
justified delay” that it is supposed to prevent in capital
cases. Bucklew v. Precythe, 

, 150 (2019). That
is a misuse of our discretionary certiorari jurisdiction. I re-
spectfully dissent.

——————
  5 Our two earlier cases addressing due process challenges to Texas’s

DNA testing procedures followed a similar pattern. In both cases, the
Court intervened long after sentencing to address threshold procedural
issues in the petitioner’s federal due process suits. See Reed, 598 U. S.,
at 232–233 (addressing the timeliness of petitioner’s due process suit 25
years after sentencing); Skinner v. Switzer, 

 (2011) (ad-
dressing the availability of §1983 as a cause of action 16 years after sen-
tencing).
                  Cite as: 

 (2025)             1

                      ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
                          _________________

                          No. 23–7809
                          _________________


  RUBEN GUTIERREZ, PETITIONER v. LUIS SAENZ,
                    ET AL.

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                         [June 26, 2025]

  JUSTICE ALITO, with whom JUSTICE THOMAS and
JUSTICE GORSUCH join, dissenting.
  The Court and I agree on one thing: we should decide this
case based on the test adopted in Reed v. Goertz, 

 (2023). After that, however, the majority veers
sharply off course. First, it blatantly alters the Reed test.
See ante, at 1–2, 8, 10. Second, it then has the audacity to
criticize the Fifth Circuit for applying the real Reed test.
See ante, at 9. Third, it ignores critical differences between
the situation in Reed and the situation here. See ante, at
9–11. Fourth, it paints a misleading picture of underlying
facts and Gutierrez’s decades-long litigation campaign. See
ante, at 2–6. Fifth, it fails to recognize the limited scope of
the declaratory judgment at issue. See ante, at 9. And
sixth, it ignores lawful and binding Texas law regarding the
facts that may be considered when a prisoner seeks DNA
testing. See 

                             I
                             A
                             1
  Because the majority paints a misleading picture of the
facts and prior proceedings in this case, I begin by setting
the record straight. In 1999, Gutierrez was convicted and
sentenced to death for the brutal murder of Escolastica
2                   GUTIERREZ v. SAENZ

                     ALITO, J., dissenting

Harrison, an 85-year-old woman who lived in a mobile home
park in Brownsville, Texas, with her nephew Avel Cuellar.
See Ex parte Gutierrez, 

 (Tex. Crim.
App. 2011). As a result of his friendship with Cuellar,
Gutierrez became acquainted with Harrison and occasion-
ally ran errands for her. 

 Cuellar, Gutierrez, and other
friends gathered to drink behind Harrison’s home—and
Cuellar, while inebriated, revealed that Harrison kept her
entire life savings (more than $600,000) in her home be-
cause she distrusted banks. See Gutierrez v. Stephens, 

, *1 (SD Tex., Oct. 3, 2013); Ex parte
Gutierrez, 

.
   When Gutierrez heard this, he hatched a plan to break
into the mobile home and steal the money. 

. He
recruited two accomplices—Rene Garcia and Pedro Gra-
cia—and on September 5, 1998, the three men went to Har-
rison’s trailer home to execute the plan. 

 By the time
they left the scene, Harrison had been beaten and stabbed
13 times in her face and neck with two different instru-
ments. See 

, and n. 2. When Cuellar came home
that night, he reported discovering his elderly aunt’s dead
body face-down in a pool of blood. 

.
   Several witnesses told detectives that they had seen
Gutierrez at the mobile home park on the day of the mur-
der. Ibid.; see Gutierrez v. Stephens, No. 1:09–cv–00022
(SD Tex., July 30, 2012), ECF Doc. 23–96, pp. 22–23. De-
tectives visited Gutierrez’s home but were told he was not
there. Ex parte Gutierrez, 

. The next
day, Gutierrez voluntarily appeared at the police station
and made the first of three conflicting statements. 

 He
told detectives that on the day of the murder, he was driv-
ing with a friend far away from the mobile home park.
Ibid.; see 

, 269 (CA5 2024). This alibi fell
through, however, when the friend told a conflicting story.
Ex parte Gutierrez, 

. In addition, Garcia
and Gracia confessed to involvement in the crime, named
                     Cite as: 

 (2025)                   3

                         ALITO, J., dissenting

Gutierrez as an accomplice, and said he was inside the mo-
bile home when Harrison was killed.1 

; ECF Doc.
2–2, at 2. Based on these statements and other evidence,
Gutierrez was arrested. Ex parte Gutierrez, 

; ECF Doc. 2–2, at 2.
  At the police station, Gutierrez agreed to give a second
statement. Id., at 2. Abandoning his earlier story, he ad-
mitted that he had planned to “ ‘rip off ’ ” Harrison, but he
claimed that he had not wanted to murder her. Ex parte
Gutierrez, 

. He told the police he had
been waiting at a park when Garcia and Gracia carried out
the scheme. 

 When they later met, he asserted, Garcia
was holding a screwdriver covered in blood and said he had
killed Harrison. 

  The following day, Gutierrez gave his third conflicting
statement. 

 In a signed confession, he said that Garcia
was supposed to lure Harrison out of her home so that
Gutierrez could enter through the back of the trailer and
steal the money, but when Harrison saw Gutierrez enter
her home, Garcia knocked her out and began to stab her
with a screwdriver. 

 Gutierrez admitted that both he
and Garcia were armed with screwdrivers during the rob-
bery. Gutierrez, 

, *2. Gutierrez said
that he took the money while Garcia was stabbing Harrison
and that Gracia drove everyone away from the scene. 

The State of Texas then charged Gutierrez with capital
murder committed in the course of a robbery. 

                              2
  Gutierrez moved to suppress his signed confession, argu-
ing that it was coerced and that the police continued to
question him after he had invoked his right to counsel and
his right to remain silent. See 

. After conducting

——————
  1 These statements were not admitted at trial. See Ex parte Gutierrez,

.
4                       GUTIERREZ v. SAENZ

                          ALITO, J., dissenting

a hearing at which Gutierrez and two police officers testi-
fied, the judge denied the motion and issued detailed find-
ings of fact.2 Ibid.; see also ECF Doc. 23–66, at 47–125.
   Gutierrez appealed, but the TCCA affirmed.            See
Gutierrez, 

, *21.
                                3
   At trial, the State’s theory was that Gutierrez was guilty
of murder either as a principal or a party to the crime. 

. The State relied on Texas’s “law of par-
ties,” under which “[a] person is criminally responsible as a
party to an offense if the offense is committed . . . by the
conduct of another for which he is criminally responsible.”

(a) (West 2021). Because
Gutierrez had admitted to participating in the robbery, the
State argued that he could be found guilty of murder even
if he was not the one who delivered the fatal blows. See
ECF Doc. 23–102, at 69–70.
   Gutierrez’s defense offered a version of events that dif-
fered from all three of Gutierrez’s prior stories. The new
account was that Cuellar had fatally stabbed Harrison.
Gutierrez, 

, *3. The defense “intimated
that the police had manufactured Gutierrez’s statements”
and criticized the police for conducting a shoddy investiga-
tion. 

 The jury found Gutierrez guilty.
   At the penalty phase of the trial, the State presented ev-
idence that Gutierrez had a long history of crime and vio-
lence, including burglaries, assault on a police officer, and
threats to kill an assistant district attorney and a prison

——————
  2 After the hearing, the judge initially denied the suppression motion

orally, but after Gutierrez appealed, the case was remanded, at the
State’s request, for the issuance of written findings. Gutierrez, 

, *20–*21. Gutierrez then took a second appeal, and the Texas
Court of Criminal Appeals (TCCA) affirmed. Gutierrez v. Stephens,
No. 1:09–cv–00022 (Jan. 26, 2009), ECF Doc. 2–2, pp. 2–4; see Gutierrez,

, *21.
                  Cite as: 

 (2025)            5

                      ALITO, J., dissenting

guard. 

 The jury found (1) that Gutierrez posed a “con-
tinuing threat to society,” (2) that he had “intended to kill
the deceased . . . or anticipated that a human life would be
taken,” and (3) that any mitigating circumstance were in-
sufficient to warrant a sentence of life imprisonment with-
out parole. ECF Doc. 23–108, at 45–48; ECF Doc. 23–109,
at 4–5; see Tex. Code Crim. Proc. Ann., Art. 37.071, §§2(b),
(e)(1) (Vernon 2006). Based on these findings, the judge im-
posed a sentence of death.
  Gutierrez appealed and argued, among many other
things, that his confession should have been suppressed,
but the TCCA affirmed his conviction and sentence. See
Ex parte Gutierrez, 

; ECF Doc. 19, at
58–60.
                                B
   The end of direct appellate review was just the start of a
new litigation saga spanning 23 years (and counting). After
the conclusion of direct appellate review in 2002, Gutierrez
filed multiple petitions for state and federal post-conviction
relief, none of which has been successful. See 93 F. 4th, at
269–270. And Gutierrez has told us that he intends to file
yet another petition for state post-conviction relief. See
Brief for Petitioner 40–41.
   Among the many claims that Gutierrez has advanced in
post-trial litigation, the claim involved here—that he is en-
titled to DNA testing of items found at the murder scene—
has a prominent place. At trial, however, his counsel de-
clined to request DNA testing. Ex parte Gutierrez, 

. As recounted by the TCCA, “the record
affirmatively shows that DNA testing was available to ap-
pellant before trial,” but “defense counsel apparently did
not have testing performed on those same items because of
sound trial strategy.” 

 (emphasis added). Instead of
risking what testing might reveal, counsel “used the fact
that the Brownsville Police Department failed to test the
6                       GUTIERREZ v. SAENZ

                          ALITO, J., dissenting

evidence containing biological DNA evidence to argue the
lack of investigation and the existence of reasonable doubt
during the trial.” 

. The lack of testing figured
prominently in his cross-examination of prosecution wit-
nesses and was repeatedly raised during summation. 

at 896–897, and n. 45.
   The decision to forgo DNA testing at trial did not pay off,
so after his conviction, Gutierrez changed course and de-
manded testing in post-conviction proceedings. Chapter 64
of the Texas Code of Criminal Procedure governs such re-
quests, and Gutierrez filed his first Chapter 643 motion in
2010. See 93 F. 4th, at 269. He sought testing of: (1) a blood
sample taken from Harrison; (2) a blood-stained shirt be-
longing to Cuellar; (3) nail scrapings from Harrison; (4)
blood samples collected from Cuellar’s bathroom, from a
raincoat located in or just outside Cuellar’s bedroom, and
from the sofa in the front room of the home; and (5) a loose
hair recovered from Harrison’s finger. Ex parte Gutierrez,

. According to Gutierrez, the testing
would show that he had not entered Harrison’s house and
would “support his position that he neither murdered Mrs.
Harrison nor anticipated her murder.” 

   The trial court denied this motion, and the TCCA af-
firmed. 

 at 888–889, 901–902. The TCCA explained
that Chapter 64 authorizes post-conviction DNA testing
only when the results would affect the applicant’s convic-
tion, not his sentence. 

 at 899–901. And in any event,
it explained, favorable DNA results would not undermine
the jury’s guilty verdict because they would not “make it
less probable” that Gutierrez planned and participated in
the crime. 

. Nor, it added, would such results
affect Gutierrez’s eligibility for the death penalty because
——————
  3 The majority refers to this provision as “Article 64,” but because the

lower courts consistently refer to the provision as “Chapter 64” and the
associated motions for DNA testing as “Chapter 64 motions,” I use that
terminology here.
                    Cite as: 

 (2025)                   7

                         ALITO, J., dissenting

“the record facts satisfy the Enmund/Tison culpability re-
quirements that he played a major role in the underlying
robbery and that his acts showed a reckless indifference to
human life.” Ibid.4
  Gutierrez filed additional Chapter 64 motions for DNA
testing in June 2019 and July 2021, but the trial court de-
nied those motions, and each time the TCCA affirmed on
the same grounds. Gutierrez v. Texas, 

, *6–
*9 (Feb. 26, 2020) (per curiam); 2 App. 477a–479a.
                              C
   This brings us to the latest chapter—Gutierrez’s current
suit. In September 2019, Gutierrez sued Cameron County
District Attorney Luis Saenz and other Texas officials in
federal court under Rev. Stat. §1979, 

. See
Complaint in Gutierrez v. Saenz, No. 1:19–cv–00185 (SD
Tex., Sept. 26, 2019), ECF Doc. 1. Gutierrez asserted sev-
eral facial and as-applied constitutional challenges to
Chapter 64, including a Fourteenth Amendment due pro-
cess claim, a First Amendment access-to-courts claim, and
an Eighth Amendment cruel-and-unusual-punishment
claim. See 

   The District Court rejected almost all of Gutierrez’s
claims, but the court held that Chapter 64 is unconsti-
tutional insofar as it allows a defendant to seek post-
conviction DNA testing to challenge his conviction but not
his sentence. 

, 910–911 (SD Tex. 2021).
The District Court entered a partial declaratory judgment
for Gutierrez on that ground but did not issue the injunc-
tion Gutierrez had sought. Ibid.; see 

,
*6 (SD Tex., June 2, 2020) (denying Gutierrez’s request for
a “preliminary and permanent injunction” requiring Saenz
to turn over the requested evidence (internal quotation
marks omitted)). The State appealed, but Gutierrez did not
——————
  4 See Enmund v. Florida, 

 (1982); Tison v. Arizona,

, 157–158 (1987).
8                    GUTIERREZ v. SAENZ

                      ALITO, J., dissenting

cross-appeal, so the only issue before the Fifth Circuit was
whether Gutierrez was entitled to a declaratory judgment
on the one constitutional claim accepted by the District
Court.
   The Fifth Circuit did not reach the merits of that claim
because it held that Gutierrez lacked standing. Our test for
Article III standing, set out in Lujan v. Defenders of Wild-
life, 

 (1992), has three prongs, and the
Fifth Circuit found that Gutierrez failed the third prong—
that is, the court found that Gutierrez could not show that
his claimed injury (lack of DNA testing) was “ ‘likely’ ” to be
redressed by the relief that could at that point be awarded.
See 93 F. 4th, at 275; Lujan, 

 (“[I]t must be
likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision” (internal quotation
marks omitted)).
   In Reed v. Goertz, this Court recently applied this test un-
der related circumstances. As I will explain, there are crit-
ical differences between that case and the case at hand, but
there are similarities that seem to have led the majority
astray. In Reed, a prisoner sentenced to death (Rodney
Reed) brought a §1983 action against a district attorney
and sought a declaratory judgment that a particular provi-
sion of Chapter 64 (its chain-of-custody provision, Tex. Code
Crim. Proc. Ann., Art. 64.03(a)(1)(A)(ii) (Vernon 2018)) vio-
lates the Constitution. This Court held that this declara-
tory judgment would redress the prisoner’s deprivation of
DNA testing because it would “ ‘substantially’ ” alter the
likelihood of the district attorney’s ordering DNA testing.
Reed, 

.
   There were multiple issues in Reed, and the Court’s dis-
cussion of redressability was terse. In its entirety, it was
as follows:
      “[I]f a federal court concludes that Texas’s post-
    conviction DNA testing procedures violate due process,
                     Cite as: 

 (2025)                     9

                          ALITO, J., dissenting

     that court order would eliminate the state prosecutor’s
     justification for denying DNA testing. It is ‘substan-
     tially likely’ that the state prosecutor would abide by
     such a court order. In other words, in ‘terms of our
     “standing” precedent, the courts would have ordered a
     change in a legal status,’ and ‘the practical consequence
     of that change would amount to a significant increase
     in the likelihood’ that the state prosecutor would grant
     access to the requested evidence and that Reed there-
     fore ‘would obtain relief that directly redresses the in-
     jury suffered.’ ” 

 (emphasis added; citation omit-
     ted).5
  The Court held that the prisoner satisfied this test. In
other words, the Court was persuaded that if he got the de-
claratory judgment he wanted, it was “substantially likely”
that the district attorney would order testing.
  The Fifth Circuit faithfully applied this test in its deci-
sion below, taking into account the particular facts of
Gutierrez’s case. It noted that the TCCA has repeatedly
held that Gutierrez would still be responsible for the mur-
der under the law of parties and would still be death-
penalty eligible even if DNA testing provided the results he
wanted. 93 F. 4th, at 272–273, 275. And it thus held that
a decision in Gutierrez’s favor on his constitutional claim
would not make it substantially likely that the district at-
torney would release the items for testing.6 

.
——————
  5 Reed advanced the theory that the Court adopted. His brief said that

“the question here is whether declaratory relief is likely to stop Goertz
from relying on the CCA’s unconstitutional interpretation of Article 64
to continue denying DNA testing. The answer is yes.” Reply Brief in
Reed v. Goertz, O. T. 2022, No. 21–442, p. 6.
  6 The Fifth Circuit’s assessment of the likely effect of the declaratory

judgment that Gutierrez sought was borne out when the TCCA affirmed
the denial of Gutierrez’s third motion for DNA testing in June 2024—
after he had obtained the favorable declaratory judgment in the District
Court. See 2 App. 467a–468a.
10                   GUTIERREZ v. SAENZ

                       ALITO, J., dissenting

   Today’s decision, in contrast, flagrantly distorts the
standard that Reed articulated. Indeed, the majority edits
Reed’s critical language in a way that would draw rebuke if
done by an attorney in a brief filed in this Court. Reed’s full
discussion of redressability was quoted above. It consists of
three sentences. The majority’s analysis is based entirely
on the first sentence, which states: “ ‘[I]f a federal court con-
cludes that Texas’s post-conviction DNA testing procedures
violate due process,’ that court order would redress [a pris-
oner’s] injury by ‘eliminat[ing]’ the state prosecutor’s reli-
ance on Article 64 as a reason for denying DNA testing.”
See ante, at 12 (quoting Reed, 

). The second
and third sentences explain why the conclusion drawn in
the first sentence was true in Reed’s case: because the par-
ticular declaratory judgment that Reed sought (striking
down Chapter 64’s chain-of-custody requirement) would
“substantially” increase the likelihood that the district at-
torney would turn over the requested items for DNA test-
ing. 

. But the majority pretends those sentences
do not exist.
   This distortion is bad enough, but to make matters worse,
the majority then criticizes the Fifth Circuit for “transform-
ing the redressability inquiry into a guess as to whether a
favorable court decision will in fact ultimately cause the
prosecutor to turn over the evidence.” Ante, at 11 (citing 93
F. 4th, at 274). In the majority’s view, this Court appar-
ently should not consider whether the District Court’s judg-
ment is likely to result in Gutierrez obtaining relief, but
whether the District Court’s judgment removes just one of
the numerous “barrier[s] . . . between Gutierrez and the re-
quested testing.” Ante, at 12. The majority’s new test
makes a hash of redressability. It appears that, under this
new test, the likelihood of redress is simply not relevant.
That most certainly is not what Reed held.
   Under the real Reed test, a plaintiff like Gutierrez must
show that a favorable decision on his constitutional claim is
                     Cite as: 

 (2025)                    11

                          ALITO, J., dissenting

“ ‘substantially likely’ ” to prompt the district attorney to al-
low DNA testing. 

. And in this case, unlike
in Reed, it is clear that the only relief that Gutierrez is in a
position to seek—reinstatement of the District Court’s de-
claratory judgment—is most unlikely to cause respondent
Saenz to order DNA testing. That is the conclusion that the
Fifth Circuit reached after carefully considering the rele-
vant facts, and that court was right. The following part of
this opinion will explain why.7
                               II
                               A
 The Texas courts have provided three reasons why
Gutierrez is not entitled to the testing he seeks. Any one of
——————
   7 According to the majority, the Fifth Circuit held that “Gutierrez

lacked ‘standing to bring this suit,’ ” and it therefore concluded that
Gutierrez lacked standing to assert any of the claims he originally
brought. See ante, at 10. But just a few paragraphs after the part of the
opinion in which the language quoted by the majority appears, the opin-
ion makes it clear that its standing analysis focused on the one claim
that was before it. See 

, 271 (2024). That claim, the opinion
noted, was that “the state violates due process by permitting testing only
if the evidence could establish the prisoner would not have been con-
victed, thereby preventing testing if resulting evidence would be relevant
only to the sentence.” 

 It then set out respondents’ standing argu-
ment: “The defendants allege that Gutierrez has no standing to make
that claim.” 

 (emphasis added). Thus, the Fifth Circuit’s opinion is
best understood as holding only that affirmance of the claim that re-
spondents appealed—that Chapter 64 violates due process by barring de-
fendants from seeking post-conviction DNA testing to establish inno-
cence of the death penalty—would not redress Gutierrez’s injury. And
in any event, the redressability inquiry had to be limited in that way
because Gutierrez did not cross-appeal the District Court’s rejection of
his other claims.
   Attempting to evade the cross-appeal rule, the majority characterizes
this case as one in which an appellee merely wishes to defend a judgment
whose “scope” did not reach the entirety of his claim. Ante, at 11, n. 3.
But the District Court did not simply fail to award Gutierrez complete
relief on the one claim on which he prevailed. Rather, it entered judg-
ment against him on different claims.
12                   GUTIERREZ v. SAENZ

                      ALITO, J., dissenting

these, if sound, would justify the denial of testing.
    First, both the trial court and the TCCA have held that
Gutierrez is not entitled to post-conviction DNA testing be-
cause such testing is unavailable under Chapter 64 to show
ineligibility for the death penalty, and Gutierrez could not
show by a preponderance of the evidence that he would not
have been convicted if he obtained favorable DNA test re-
sults. See Ex parte Gutierrez, 337 S. W. 3d, at 899–901;
Gutierrez, 

, *5–*8. Second, both the trial
court and the TCCA have concluded that even favorable
DNA test results would not help Gutierrez because he
would still be responsible for the murder and would still
satisfy the Enmund/Tison Eighth Amendment require-
ments. See Ex parte Gutierrez, 

;
Gutierrez, 

, *8. Third, the trial court found
that Gutierrez’s application for DNA testing was made for
the purpose of delay. See 

. This finding of fact was
not addressed by the TCCA. See 

.
    Contrary to the majority’s suggestion, a favorable declar-
atory judgment respecting the first of these reasons (Chap-
ter 64 does not allow post-conviction DNA testing to prove
ineligibility for the death penalty) would not remove “the
. . . barrier Article 64 erected between Gutierrez and the re-
quested testing”; it would remove a barrier. Ante, at 12 (em-
phasis added). The District Court’s declaratory judgment
regarding the constitutionality of Chapter 64’s limited
grounds for post-conviction DNA testing, even if upheld by
the Fifth Circuit and this Court, would affect only that rea-
son and not the other two. And even if the TCCA did not
accept the trial court’s finding that Gutierrez filed his
Chapter 64 motion for the purpose of delay, the TCCA
would almost certainly adhere to its prior decisions holding
that favorable DNA results would not show that Gutierrez
was innocent of the crime or ineligible for the death penalty.
As a result, the only relief Gutierrez can possibly get in this
case would not result in court-ordered testing unless the
                  Cite as: 

 (2025)             13

                       ALITO, J., dissenting

TCCA reverses course in an utterly unforeseeable way.
   Gutierrez argues, however, that even if the declaratory
judgment would not lead the Texas courts to grant DNA
testing, respondent Saenz would still have discretion to
turn over the items and might do so. See Brief for Peti-
tioner 37–38. But Gutierrez does not spell out why Saenz
might do that. His argument is based on rank speculation,
and that is not enough to support redressability. See Lujan,

.
   Furthermore, nothing in the record suggests that there is
any likelihood that Saenz would do what Gutierrez wants.
The declaratory judgment would not require Saenz to order
testing. And he would know that the testing would be
pointless because even if the items were tested and revealed
what Gutierrez hopes for, the Texas courts would not dis-
turb his conviction or sentence.
   Not only is there no reason to think that Saenz—for some
unknown reason—might nevertheless order DNA testing,
but his conduct to date strongly suggests the opposite.
Even after the District Court issued its declaratory judg-
ment, he refused to order testing. And Gutierrez cannot
explain why Saenz has steadfastly declined to allow testing
ever since. If he had any inclination to allow testing, he
could have done that at any point during this litigation—
for example, when Gutierrez filed his petition, when this
Court granted review, at any point during the briefing pro-
cess, before or after argument, or yesterday. Not only has
he not done so, he has steadfastly maintained that he will
not do so. His position is that this case should be dismissed!
   Unable to explain why affirmance of the District Court’s
declaratory judgment might change Saenz’s mind, the ma-
jority contends that a favorable decision on other constitu-
tional claims asserted in Gutierrez’s complaint might do
the trick. And it criticizes the Fifth Circuit for “bas[ing] its
assessment of redressability on the declaratory judgment
14                   GUTIERREZ v. SAENZ

                       ALITO, J., dissenting

the District Court later issued, rather than Gutierrez’s com-
plaint.” Ante, at 10.
   This reasoning is fundamentally wrong and, if allowed to
stand, will corrupt our Article III case law. Our standing
requirements “persist throughout all stages of litigation.”
Hollingsworth v. Perry, 

 (2013). “That
means that standing ‘must be met by persons seeking ap-
pellate review, just as it must be met by persons appearing
in courts of first instance.’ ” 

 (quoting Arizonans for Of-
ficial English v. Arizona, 

 (1997)). The con-
stitutional claims on which the majority relies were rejected
by the District Court, and Gutierrez did not appeal that
part of the judgment. As a result, the best relief that
Gutierrez could now obtain in this case is an affirmance of
the District Court’s declaratory judgment—and for the rea-
sons already discussed, that relief would not make DNA
testing substantially likely.
   For all these the reasons, Gutierrez cannot satisfy Reed’s
real test for redressability.
                              B
   The majority treats this case as indistinguishable from
Reed, but that is not correct. An examination of the situa-
tion in that case provides a clear explanation for the Reed
Court’s conclusion that its test for redressability was met.
And once that is understood, it is clear that the present case
is different.
                              1
   Rodney Reed was convicted and sentenced to death for
the murder of Stacey Lee Stites, whose body was found par-
tially clothed and abandoned near a back country road.
Reed v. State, 

 (Tex. Crim. App. 2017).
Based on an examination of her body, the police concluded
that she had been sexually assaulted and strangled with a
belt found at the scene. 

 DNA found on semen in
                     Cite as: 

 (2025)           15

                          ALITO, J., dissenting

Stites’s body matched Reed’s genetic profile, and Reed was
subsequently arrested and charged with her murder. See

. At trial, Reed argued (among other things) that
he and Stites were in a romantic relationship, that they had
engaged in consensual intercourse, and that the real culprit
was Stites’s fiance, Jimmy Fennell. Ex parte Reed, 

 (Tex. Crim. App. 2008). The jury was not
persuaded, and Reed was convicted of capital murder and
sentenced to death. 

.
   Reed filed a Chapter 64 motion seeking DNA testing of
the belt and more than 35 other items that were found ei-
ther on Stites’s body, at the scene of the crime, or in or near
the truck she shared with Fennell. Reed, 541 S. W. 3d, at
764–765. Applying Chapter 64, the TCCA ruled out consid-
eration of evidence that fell into either of two categories.
See 

. First, the TCCA refused to consider 21
items on the ground that they did not satisfy Chapter 64’s
chain-of-custody requirement.8 

 at 769–770. Among
these were the strap and buckle from the belt with which
Stites had apparently been strangled. 

. Second,
the TCCA excluded other items on the ground that they
were not reasonably likely to contain biological material
suitable for testing. 

. Eight items remained for
the TCCA to consider, and five of them were found in or
near the truck, not at the crime scene. 

 at 774–775. The
court then found that favorable results with respect to these
eight items would not have shown by a preponderance of
the evidence that Reed was not guilty. 

 at 773–777.
                             2
  Once the role that the chain-of-custody rule played in the
TCCA’s analysis is understood, the support for this Court’s
redressability finding in Reed is easy to understand. The
declaratory judgment that Reed sought—striking down the

——————
 8 See Tex. Code Crim. Proc. Ann., Art. 64.03(a)(1)(A)(ii).
16                  GUTIERREZ v. SAENZ

                      ALITO, J., dissenting

chain-of-custody rule—would have critically undermined
the TCCA’s holding with respect to the potential impact of
DNA testing. Twenty-one additional items, including the
belt, could have been considered. If Fennell’s DNA, but not
Reed’s, had been detected on the belt and perhaps other
items found at the scene, that would have provided signifi-
cant support for Reed’s theory that Fennell was the mur-
derer. As a result, the declaratory judgment might well
have led to a state-court decision ordering DNA testing, and
that possibility would have given the district attorney a rea-
son to turn over the items even before such a state-court
decision was handed down. The result would have been “a
significant increase in the likelihood that the state prosecu-
tor would grant access to the requested evidence.” Reed,

 (emphasis added; internal quotation
marks omitted).
   In response, the majority argues that even if the chain of
custody rule was held to be unconstitutional, the district at-
torney could have denied Reed’s request for another reason.
Ante, at 11. That is true but beside the point. Under this
Court’s decision in Reed, all that was required to show re-
dressability was “a significant increase in the likelihood”
that the district attorney would allow testing.
                              C
   Gutierrez’s case presents a far different situation. Here,
the TCCA has held that, even if DNA testing failed to detect
Gutierrez’s DNA and detected the presence of Cuellar’s
DNA, Gutierrez could not establish that he was not guilty
of murder or that he is ineligible for a death sentence. The
TCCA noted that, since Cuellar lived with Harrison in the
same trailer home and was the person who found her dead
body, detecting his DNA on many items in the house would
not necessarily be incriminating. See Gutierrez, 

, *7–*8. And more important, even if Cuellar’s DNA
                  Cite as: 

 (2025)           17

                      ALITO, J., dissenting

was detected on the most important items, such as the ma-
terial found under Harrison’s fingernails, that would be of
little value to Gutierrez. It would suggest that Cuellar was
one of the individuals who stabbed Harrison—but that
would not affect Gutierrez’s culpability or his sentence.
Whether the fatal blows were administered by Garcia, Gra-
cia, Cuellar, or some combination of these men, Gutierrez
would still be guilty of murder under the law of parties be-
cause he participated in the scheme. See 

(a). And because he had reason to know that the
execution of his scheme could well result in the loss of life,
he would still be eligible for the death penalty. See
Enmund v. Florida, 

 (1982); Tison v. Ari-
zona, 

, 157–158 (1987). Thus, a favorable de-
cision on Gutierrez’s constitutional argument would not
bolster his challenge to his sentence.
   Gutierrez responds that favorable DNA results might
change the TCCA’s thinking because that court’s holding on
the effect of DNA evidence did not take into account newly
discovered evidence that he wants to introduce. See Brief
for Petitioner 38–42. The majority suggests that, in as-
sessing whether Gutierrez’s injury of not receiving DNA
testing is redressable, the Fifth Circuit should have consid-
ered Gutierrez’s assertion in his complaint that favorable
DNA results along with the new evidence could render him
ineligible for the death penalty. See ante, at 9–10. But the
TCCA has held that only evidence in the trial record may
be considered in determining whether post-conviction DNA
testing is allowed. See Holberg v. State, 

 (Tex. Crim. App. 2014) (“[T]his Court will not consider
post-trial evidence when deciding whether or not the appel-
lant has carried her burden to establish by a preponderance
of the evidence that she would not have been convicted had
18                       GUTIERREZ v. SAENZ

                           ALITO, J., dissenting

exculpatory results been obtained through DNA testing.”).9
We have no basis for disregarding that limitation here. We
are, of course, bound by the TCCA’s interpretation of Texas
law, and no question regarding the constitutionality of this
feature of Texas law is now before us.10
   Not only does the majority’s redressability analysis take
into account evidence that this binding state-law rule ex-
cludes, but the majority seems to think it is relevant that
“Gutierrez has long maintained that the police coerced him
into confessing that he was in Harrison’s home on the night
of the murder.” Ante, at 3.
   The majority does not see fit to mention that the state
courts have definitively rejected Gutierrez’s argument that
the confession was coerced, that Texas law would almost
certainly bar him from raising the same claim again in a
post-conviction proceeding,11 and that the federal habeas
——————
   9 A similar limitation applies in federal habeas proceedings. See Cul-

len v. Pinholster, 

, 181 (2011) (holding that habeas review
of a state-court conviction pursuant to 

(d)(1) “is limited
to the record that was before the state court that adjudicated the claim
on the merits”).
   10 This is so for three reasons. First, if Gutierrez wanted to challenge

those parts of the District Court’s judgment, he needed to file a cross-
appeal, but he did not do so. See, e.g., Northwest Airlines, Inc. v. County
of Kent, 

 (1994) (collecting cases). Second, the consti-
tutionality of this provision is not within the question on which we
granted certiorari. And third, the question was not briefed or argued by
the parties.
   11 See Tex. Code Crim. Proc. Ann., Art. 11.071, §§5(a)(1)–(a)(3) (Vernon

Cum. Supp. 2024) (providing that a defendant can only file a second ha-
beas petition challenging his death sentence if “the current claims and
issues have not been and could not have been presented previously,” no
rational juror would have found the defendant guilty but for a constitu-
tional violation, or no rational juror would have answered one or more of
the special issues in the State’s favor but for a constitutional violation);
Ex parte Blue, 

 (Tex. Crim. App. 2007) (noting that
a state habeas applicant can only succeed on his claim under Art. 11.071,
§5(a)(3), in the “rare” case when “constitutional error . . . so permeated
the State’s evidence relevant to one of the special issues upon which it
                      Cite as: 

 (2025)                     19

                           ALITO, J., dissenting

statute would likewise bar consideration of the claim.12
                         *     *      *
   This decision’s only practical effect will be to aid and abet
Gutierrez’s efforts to run out the clock on the execution of
his sentence. And if the decision is taken seriously as a
precedent on Article III standing, it will do serious damage.
I therefore dissent.




——————
carries the burden of proof that, absent the error, it is practically incon-
ceivable that any rational juror would actually answer the special issues
in a way that mandates the death penalty” (emphasis added)).
  12 Because a claim regarding the admissibility of Gutierrez’s confession

would constitute an attack on his conviction, it cannot be raised in a suit
under §1983. See Heck v. Humphrey, 

, 486–487 (1994). And
any attempt to raise the issue in a federal habeas petition would almost
certainly fail. See 

(b)(2), 2254(d).