United States Court of Appeals

for the Fifth Circuit

No. 19-70008

Chuong Duong Tong, 

Petitioner—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of 

Criminal Justice, Correctional Institutions Division, 

Respondent—Appellee.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:10-CV-2355

Before Smith, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

Chuong Duong Tong, a Texas death row inmate, seeks an additional 

certificate of appealability (COA) following the district court’s denial of his 

petition for federal habeas relief under 28 U.S.C. § 2254. Tong has already 

been granted a COA to appeal his claim concerning the jury selection process 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 27, 2020

Lyle W. Cayce

Clerk

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during voir dire (the “voir dire claim”), which is pending before this panel.

Tong now seeks permission to raise additional claims on appeal—

specifically, that the prosecution suppressed material impeachment evidence 

concerning two of its witnesses, Stephen Mayeros and Hoa Huu Than, a/k/a

“Too Short” (respectively, the “Mayeros Brady claim” and the “Too Short 

Brady claim”), and that his trial counsel were ineffective for failing to 

investigate and present mitigating evidence (the “Wiggins claim”).

We DENY Tong a COA as to both Brady claims. A complete 

evaluation of the Wiggins claim, however, must await limited remand to the 

district court. That court denied Tong’s request to fund investigation of

additional mitigation evidence, see 18 U.S.C. § 3599(f), but it used a standard 

the Supreme Court has now abrogated. See Ayestas v. Davis (Ayestas II), 138 

S. Ct. 1080, 1093 (2018) (abrogating “substantial need” standard for § 3599 

requests used in Ayestas v. Stephens, 817 F.3d 888, 895–96 (5th Cir. 2016)). A 

limited remand is therefore necessary so that the district court may evaluate 

Tong’sfunding request under the currentstandard. We therefore VACATE

the judgment denying Tong’s funding request, REMAND for 

reconsideration under Ayestas II, and STAY further proceedings before this 

panel on Tong’s Wiggins claim pending the district court’s decision.

I.

A jury convicted Tong of capital murder and sentenced him to death 

for killing Houston police officer Tony Trinh in 1997. The Texas Court of 

Criminal Appeals (TCCA) affirmed his conviction and sentence on direct 

appeal. Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000), cert. denied, 532 

U.S. 1053 (2001). Nine years later, the TCCA denied Tong’s state habeas 

application. Ex Parte Tong, No. WR-71377-01, 2009 WL 1900372 (Tex. Crim. 

App. July 1, 2009).

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Tong timely filed his initial federal habeas petition on July 1, 2010, and 

an amended petition on September 13, 2011. In 2012, the district court stayed 

proceedings to allow Tong to file a subsequent habeas application in state 

court. The TCCA dismissed that application as an abuse of the writ without 

considering the merits. Ex Parte Chuong Duong Tong, No. WR-71,377-02, 

2013 WL 2285455 (Tex. Crim. App. May 22, 2013). Tong returned to district 

court, where he was granted new counsel in January 2014 in light of Trevino 

v. Thaler, 133 S. Ct. 1911 (2013). Tong subsequently moved under 18 U.S.C. 

§ 3599 for funding to investigate possible mitigation evidence not presented 

by trial counsel, and for a Vietnamese interpreter to assist with the effort, but 

the district court denied those requests in September 2014.

Tong filed a 232-page second amended federal habeas petition on 

October 17, 2014. This petition presented, inter alia, (1) the voir dire claim; 

(2) the two Brady claims; and (3) the Wiggins claim. Tong also renewed his § 

3599 request for funding to investigate and develop his Wiggins claim.

On September 30, 2016, in a detailed 78-page ruling, the district court 

granted in part and denied in part the State’s motion for summary judgment, 

denied in part Tong’s habeas petition, and granted an evidentiary hearing on 

Tong’s Brady claims. Although Tong did not request a COA, the district 

granted one as to the voir dire claim. In 2017, the court held a two-day 

evidentiary hearing on the Brady claims, and then, on March 22, 2019, denied 

habeas relief and sua sponte denied a COA on those claims. Tong timely 

appealed. 

In addition to appealing the denial of his voir dire claim, for which he 

has been granted a COA, Tong now separately moves for an additional COA 

on his two Brady claims and his Wiggins claim. Tong also asks for a remand 

so that the district court can reconsider its denial of his § 3599 funding 

request under Ayestas II.

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II.

“A COA is necessary to appeal the denial of federal habeas relief, 28 

U.S.C. § 2253(c)(1), and the requirement is jurisdictional.” Gonzalez v. 

Davis, 924 F.3d 236, 241 (5th Cir. 2019) (citing Miller-El v. Cockrell, 537 U.S. 

322, 335–36 (2003)).1 To obtain a COA, a petitioner must make “a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c)(2); see Miller-El, 537 U.S. at 336. When the district court rejects a 

habeas petition on substantive grounds, the petitioner must demonstrate

“that jurists of reason could disagree with the district court’s resolution of 

his constitutional claims or that jurists could conclude the issues presented 

are adequate to deserve encouragement to proceed further.” Id. at 327. When 

the district court rejects a habeas petition on procedural grounds, the 

petitioner must demonstrate “that jurists of reason would find it debatable 

whether the petition states a valid claim of the denial of a constitutional right 

and that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 

(2000) (emphasis added). 

1 Tong evidently did not request a COA from the district court on any of his claims, 

which would normally deprive us of jurisdiction to consider his COA requests. See, e.g., 

Gonzales, 924 F.3d at 247 (stating “this court lacks jurisdiction to entertain an issue for a 

COA on which no request for a COA has been made in the district court”) (citing Black v. 

Davis, 902 F.3d 541, 545 (5th Cir. 2018)); see also Goodwin v. Johnson, 224 F.3d 450, 459 

n.6 (5th Cir. 2000) (“[B]efore we may consider a petitioner’s application for a COA on a 

particular issue, that petitioner must first submit his request to the district court and have 

that request denied.”). Nonetheless, we do have jurisdiction to consider Tong’s COA 

requests, because the district court sua sponte denied a COA on his Brady and Wiggins 

claims. See Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir. 2011) (“[T]he lack of a ruling on 

a COA in the district court causes this court to be without jurisdiction to consider the 

appeal.” (quoting Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998))).

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III.

A.

We first consider Tong’s Mayeros Brady claim. Because reasonable 

jurists would not debate the district court’s rejection of this claim, we deny 

Tong’s COA request.

To establish a Brady violation, Tong must show “that (1) the 

prosecution suppressed evidence, (2) the evidence was favorable to the 

defense, and (3) the evidence was material.” LaCaze v. Warden, 645 F.3d 

728, 735 (5th Cir. 2011) (citing Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir.

1994)); see generally Brady v. Maryland, 373 U.S. 83 (1963). Tong claims the 

State failed to disclose evidence that it procured Mayeros’ testimony in 

exchange for favorable treatment in Mayeros’ pending criminal case on 

charges of driving with a suspended license. After holding a two-day 

evidentiary hearing,

2 the district court resolved thisBrady claim at prong one, 

finding that no deal was made with Mayeros and that Mayeros had not been 

given any implied promises or assurances by officers to prompt his testimony.

The district court also found that Mayeros’ pending charges were dropped 

due to his defense attorney’s efforts and had nothing to do with his testimony 

in Tong’s case. In light of these findings, which are not clearly erroneous, no 

reasonable jurist could disagree with the district court’s rejection of Tong’s

2 The State argues that the district court erred in holding the evidentiary hearing 

in the first place because: (1) this Brady claim was adjudicated on the merits in state court; 

and (2) Tong failed to develop the factual basis for this claim in state court. See Cullen v. 

Pinholster, 563 U.S. 170, 186 (2011); 28 U.S.C. § 2254(e)(2). Because the district court 

denied Tong’s petition on other grounds—grounds we find amply sufficient to foreclose a 

COA—we need not address the State’s alternative arguments for denying Tong’s COA

request. 

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Mayeros Brady claim. We therefore deny Tong’s application for a COA on 

this issue.

B.

Turning to Tong’s Too Short Brady claim, we also conclude that 

jurists of reason would not debate the correctness of the district court’s 

rejection of this claim and therefore deny a COA.

Too Short was Tong’s roommate at the time of the crime. Tong 

asserts that Too Short sought reward money for information provided by his 

girlfriend that led to Tong’s arrest, lied under oath, served regularly as a 

police informant, and received favorable treatment for the sale of the victim’s 

jewelry. He also claims the police kidnapped Too Short before he gave his

statement. All this information, Tong contends, the State suppressed in 

violation of Brady.

Following its evidentiary hearing,3 the district court found Tong had 

no basis for any of these assertions. It found no evidence that Too Short knew 

of his girlfriend’s cooperation or potential reward. Nor did the court find

evidence of an express or implied promise of favorable treatment, which Too 

Short and the prosecutors who testified at the hearing all denied. It found 

Too Short was not kidnapped by police, and, finally, it rejected Tong’s only 

factual basis for arguing that Too Short was a paid informant. On appeal, 

Tong continues to level the same conclusory arguments as he did in the 

3 The State presses the same arguments in response to this claim as it did against 

the Mayeros Brady claim, namely that the evidentiary hearing was unwarranted because 

this claim was adjudicated in state court and because Tong failed to develop the factual 

basis for this claim in state court. Again, however, because we find that the district court’s 

grounds for rejecting Tong’s claim suffice to foreclose a COA, we need not address the 

State’s alternative arguments. 

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district court concerning suppression of evidence impeaching Too Short. 

Finding no substantial showing of a constitutional violation, we deny a COA.

C.

Finally, we turn to Tong’s Wiggins claim that his trial counsel were 

ineffective for failing sufficiently to investigate and present mitigation 

evidence at the punishment phase. “To show deficiency, a defendant must 

show that counsel’s representation fell below an objective standard of 

reasonableness. And to establish prejudice, a defendant must show that there 

is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Andrus v. Texas, 140 S. 

Ct. 1875, 1881 (2020) (citing Strickland v. Washington, 466 U.S. 668, 694

(1984)) (internal citation and quotation marks omitted). In the mitigation 

context, Wiggins explainsthat courts must assess prejudice by “reweigh[ing] 

the evidence in aggravation against the totality of available mitigating 

evidence.” 539 U.S. at 510. 

As part of his claim, Tong argues that he has been denied the resources 

necessary to ascertain the “totality of available mitigating evidence.” Id. In 

the district court, he invoked 18 U.S.C. § 3599 to request $40,000 to hire a 

mitigation investigator and a Vietnamese interpreter to assist with further 

investigation. The district court denied the request, applying the “substantial 

need” standard which then governed in this circuit. See, e.g., Riley v. Dretke, 

362 F.3d 302, 307 (5th Cir. 2004).4 Since then, however, the Supreme Court 

has abrogated that standard, determining it was “arguably more demanding” 

4 Tong does not need a COA to appeal the denial of his § 3599 funding request. See

Wilkins v. Davis, 832 F.3d 547, 551–52 (5th Cir. 2016) (quoting Smith v. Dretke, 422 F.3d 

269, 288 (5th Cir. 2005)).

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than the statutory term “reasonably necessary.” Ayestas II, 138 S. Ct. at 1093; 

see 18 U.S.C. § 3599(f).

In light of Ayestas II, we vacate the district court’s denial of Tong’s 

funding request and remand for reconsideration under the now-governing 

standard. “A district court abuses its discretion if it bases its decision on an 

erroneous view of the law.” Ayestas v. Davis, 933 F.3d 384, 388 (5th Cir. 

2019) (citing Perez v. Stephens, 745 F.3d 174, 177 (5th Cir. 2014)). Although 

the district court applied our then-governing standard to Tong’s § 3599 

request, and although the Supreme Court acknowledged in Ayestas II that

“[t]he difference between ‘reasonably necessary’ and ‘substantially 

need[ed]’ may be small,” 138 S. Ct. at 1093, remand is appropriate to ensure 

an accurate and efficient resolution of Tong’s Wiggins claim. We express no 

opinion on how the district court should resolve Tong’s funding request, 

leaving it to the court’s sound discretion. See Wilkins, 832 F.3d at 551. In light 

of that, we will stay our consideration of Tong’s COA request on his Wiggins

claim, pending the district court’s decision on remand. 

IV.

In sum, we deny Tong’s a COA on his two Brady claims. We vacate

the district court’s judgment denying Tong’s funding request under 18 

U.S.C. § 3599 and remand to the district court solely for the purpose of 

reconsidering that request in light of Ayestas II. Our consideration of Tong’s 

petition for a COA on his Wiggins claim isstayed pending the district court’s 

resolution of his funding request.

COA DENIED in part; judgment VACATED in part and 

REMANDED for further proceedings consistent with this opinion.

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