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.

Stuart Kyle Duncan, Circuit Judge: 

Over 26 years ago, petitioner Chuong Duong Tong murdered an offduty police officer in Houston, Texas by shooting him at point-blank range 

during a robbery. A Texas jury found Tong guilty of capital murder and 

sentenced him to death. Tong has since spent decades traversing state and 

federal courts, unsuccessfully seeking to overturn that sentence. Tong now 

raises three issues on appeal.

First, Tong argues the district court erred by not granting a stay under 

Rhines v. Weber, 544 U.S. 269 (2005), to allow him to return to state court to 

United States Court of Appeals

Fifth Circuit

FILED

January 16, 2024

Lyle W. Cayce

Clerk

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No. 19-70008

2

exhaust a procedurally defaulted ineffective assistance of trial counsel 

(“IATC”) claim based on an alleged failure to present mitigating evidence 

under Wiggins v. Smith, 539 U.S. 510 (2003). Second, Tong requests a

Certificate of Appealability (“COA”) to appeal the district court’s denial of 

that same IATC claim. And third, Tong seeks habeas corpus relief based on 

the state trial judge’s purported due process violation arising from its

management of voir dire, a claim for which he previously received a COA.

Addressing each issue in turn, we conclude the district court 

committed no error. Accordingly, the district court’s order denying Tong’s 

request for a Rhines stay is AFFIRMED. Tong’s motion for an additional 

COA on his Wiggins claim is DENIED. The district court’s judgment 

denying Tong a writ of habeas corpus on his voir dire claim is AFFIRMED.

I. Facts and Proceedings

A.

The jury heard the following evidence at trial. On April 6, 1997, offduty Houston police officer Tony Trinh was working at his parents’

convenience store. Tong approached Trinh with a semi-automatic handgun, 

demanding his wallet and jewelry. Trinh showed Tong his police badge and 

told Tong he “was not going to get away with this.” Tong then killed Trinh 

by shooting him in the head at close range, took Trinh’s jewelry, and fled to 

a waiting car. Days later, Tong asked his roommate to sell Trinh’s jewelry.

After Tong’s arrest, he gave police a statement detailing the robbery 

and shooting. He also showed police where he disposed of the gun. Tong 

claimed he accidentally shot Trinh while jumping over the counter.

During pre-trial detention, a fellow inmate asked Tong how close he 

was when he shot Trinh. Tong responded by touching his finger to the 

inmate’s forehead and saying “bang.” When asked if he felt bad about killing 

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3

Trinh, Tong laughed and mockingly said that he felt terrible and cried himself 

to sleep. Later, when a police officer was preparing Tong’s restraints for 

transport, Tong placed his fingers in the shape of a pistol, pointed them at 

the officer’s head, and mouthed the word “bang.” The jury found Tong 

guilty of capital murder on alternative theories that he intentionally killed 

Trinh, a police officer performing his official duties, or that he intentionally 

killed Trinh during a robbery or attempted robbery.

At the penalty phase, the jury heard evidence of Tong’s troubled past, 

including numerous disciplinary problems at school, theft, destruction of 

property, sexual harassment, and assault. The jury also heard that, about a 

month after Trinh’s murder, Tong took part in a bank larceny involving 

$400,000. Additionally, the State presented evidence that two days before 

the Trinh murder, Tong and an accomplice broke into the home of Vincent 

and Hannah Lee. Mrs. Lee was at home that day with her sick toddler. Tong 

tied Mrs. Lee up, put a gun to her head, and told her he was going to rob and 

kill her. When Mr. Lee came home during the robbery, Tong shot him,

though not fatally, dragged him into the room where Mrs. Lee and the toddler

were, and threatened to kill him. Leaving the house, Tong said he would “kill 

all of [them]” and began firing toward the family, while laughing. He hit both 

the toddler and Mr. Lee but did not kill them.

The jury also heard mitigation evidence. For instance, it heard about 

Tong’s challenges as a result of being abandoned by his father and mother. 

Tong and his father moved to Germany, where Tong moved in and out of 

foster homes and orphanages. Tong’s father abandoned him in Germany and 

moved to the United States. After Tong became a serious disciplinary

problem, his German foster parents sent him to Houston to live with his 

father. After being abandoned again by his father in Houston, Tong lived 

intermittently with other family members until he was 21.

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The jury determined it was probable that Tong would commit future 

acts of criminal violence posing a continuing threat to society and that the 

mitigating evidence did not warrant a life sentence. On March 11, 1998, the 

trial court sentenced Tong to death.

B.

On direct appeal, the Texas Court of Criminal Appeals (“TCCA”)

affirmed Tong’s conviction and sentence, rejecting his 18 points of error. 

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

532 U.S. 1053 (2001). Tong then filed a state habeas petition presenting 12

claims. The petition did not raise an IATC claim under Wiggins based on 

trial counsel’s failure to investigate and present mitigating evidence at the 

punishment phase. See Wiggins, 539 U.S. 510. In 2009, the TCCA denied 

Tong’s habeas application. Ex Parte Tong, 2009 WL 1900372 (Tex. Crim. 

App. July 1, 2009) (per curiam).

Tong timely filed a federal habeas petition in 2010. A second amended 

petition, filed in 2014, presented, inter alia, (1) a voir dire claim, (2) two Brady

claims, and (3) a Wiggins IATC claim. Tong also requested funding under 18 

U.S.C. § 3599 to investigate and develop his Wiggins claim. That claim 

argued counsel should have discovered and presented more mitigating 

evidence—specifically, evidence of past sexual abuse by family members. 

Tong presented such evidence for the first time by attaching to his second 

amended petition affidavits from his two cousins, John Tran and Sang Tran. 

Although admitting this IATC claim was procedurally defaulted because it 

was raised for the first time in federal court, Tong argued he could overcome 

the default based on ineffective assistance of state habeas counsel 

(“IAHC”).

The district court denied Tong’s habeas petition and funding request. 

It ruled that even if Tong’s state habeas counsel was ineffective, Tong was

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not entitled to habeas relief because he failed to show that trial counsel was 

deficient under Strickland v. Washington, 466 U.S. 668 (1984). That was so, 

the district court reasoned, because trial counsel “retained professional 

investigators, conducted interviews with Tong and members of his family, 

and retained appropriate experts to assist in the preparation of Tong’s 

mitigation case.”

The district court granted Tong a COA on his voir dire claim but 

denied COAs on his Wiggins and Brady claims.

C.

Tong timely appealed and requested from our court additional COAs 

on the Wiggins and Brady claims. We denied a COA on the Brady claims but 

remanded for the district court to reconsider Tong’s § 3599 funding request 

regarding his Wiggins claim under the new test from Ayestas v. Davis, 138 S. 

Ct. 1080, 1093 (2018). See Tong v. Lumpkin, 825 F. App’x 181, 186 (5th Cir. 

2020). On remand, the district court granted Tong’s funding request. We 

then stayed proceedings on Tong’s Wiggins COA application; vacated the 

district court’s denial of that application; retained jurisdiction over the 

remaining appellate issues; and remanded for factual development of the

Wiggins claim.

The Supreme Court then decided Shinn v. Ramirez, 596 U.S. 366

(2022). Shinn held that Martinez v. Ryan, 566 U.S. 1 (2012), does not permit 

federal courts “to dispense with [28 U.S.C.] § 2254(e)(2)’s narrow limits” 

on developing the state-court record “because a prisoner’s state 

postconviction counsel negligently failed to develop [that] record.” Shinn,

596 U.S. at 371; see also Mullis v. Lumpkin, 70 F.4th 906, 910 (5th Cir. 2023) 

(noting Shinn addressed “the use of evidence . . . to assess the defendant’s 

underlying merits claim of ineffective assistance of trial counsel”). Because 

Tong did not claim to satisfy § 2254(e)(2)’s stringent requirements, the State 

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6

moved to terminate the remand because the remand’s purpose—developing

Tong’s Wiggins claim—was now foreclosed by Shinn. In response, Tong 

asked the district court to grant a stay and abeyance under Rhines to permit 

him to exhaust his Wiggins claim in state court. The district court denied the

stay request, entered final judgment in March 2023, and terminated remand 

on the grounds argued by the State. Tong timely appealed.

II. Standards of Review

We review the denial of a Rhines stay for abuse of discretion, Young v. 

Stephens, 795 F.3d 484, 495 (5th Cir. 2015), which occurs when a court 

“bases its decision on an erroneous view of the law or on a clearly erroneous 

assessment of the evidence.” Perez v. Stephens, 745 F.3d 174, 177 (5th Cir. 

2014) (citation omitted).

A petitioner may appeal the denial of federal habeas relief only if he 

first obtains a COA under 28 U.S.C. § 2253(c)(1). Gonzales v. Davis, 924 

F.3d 236, 241 (5th Cir. 2019) (per curiam).

1 To do so, he must make “a 

substantial showing of the denial of a constitutional right.” § 2253(c)(2); see

also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). When the petition was 

denied on substantive grounds, the petitioner must show “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.” Miller-El, 537 U.S. at 327. 

When the petition was denied on procedural grounds, the petitioner must 

show “that jurists of reason would find it debatable whether the petition 

_____________________

1 As noted in our prior opinion, Tong did not request COAs from the district court 

on any of his claims. Tong, 825 F. App’x at 184 n.1. We nonetheless have jurisdiction to 

consider his COA requests because the district court sua sponte granted and denied COAs 

on his voir dire and Wiggins claims, respectively. See ibid. (citing Cardenas v. Thaler, 651 

F.3d 442, 443 (5th Cir. 2011)).

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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).

Once a COA has been granted on a habeas claim, we review the 

court’s “factual findings for clear error and its legal conclusions de novo.” 

Mullis, 70 F.4th at 909. We review mixed questions of law and fact de novo

“by independently applying the law to the facts found by the district court, 

as long as the district court’s factual determinations are not clearly 

erroneous.” Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir. 2005).

III. Discussion

We address three separate issues. First, Tong argues the district court 

erred in denying his motion for a Rhines stay. Second, Tong asks for an 

additional COA based on his unexhausted Wiggins claim. Third, Tong 

argues he was denied due process by the trial court’s allocation of peremptory 

strikes during voir dire.

A. Rhines stay

Tong argues the district court erred by denying a stay to allow him to

exhaust his Wiggins IATC claim in state court.2 See Rhines, 544 U.S. at 277–

78. Such a stay is granted “only in limited circumstances because staying a 

federal habeas petition frustrates” the objectives of the Antiterrorism and 

_____________________

2 In connection with this argument, Tong contends he has a constitutional right to 

effective assistance of counsel in initial-review collateral proceedings. He is mistaken. The 

Supreme Court has long held “there is no right to counsel in state collateral proceedings.” 

Coleman v. Thompson, 501 U.S. 722, 755 (1991). More recently, in Shinn, the Court stated 

it has “repeatedly reaffirmed that there is no constitutional right to counsel in state 

postconviction proceedings.” 596 U.S. at 386; see also, e.g., In re Hensley, 836 F.3d 504, 507 

(5th Cir. 2016) (per curiam) (holding Martinez did not establish a new constitutional right 

to effective assistance of counsel in collateral proceedings).

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Effective Death Penalty Act of 1996 (“AEDPA”)—namely, to encourage

“finality and streamlin[e] federal habeas proceedings.” Young, 795 F.3d at 

494–95 (cleaned up) (quoting Rhines, 544 U.S. at 277). A district court abuses 

its discretion in denying a Rhines stay only if (1) there was good cause for 

failing to exhaust the claim in state court, (2) the claim is potentially 

meritorious, and (3) “there is no indication that the petitioner engaged in 

intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278.

The State argues Tong’s Rhines request failed all three prongs. 

Agreeing with the State as to the first and second prongs, we need not reach 

the third.

1.

Tong argues the “good cause” for not exhausting his Wiggins claim

was his state habeas counsel’s failure to raise it. The Rhines “good cause” 

standard, he contends, is more forgiving than the standard for “cause” for 

procedural default under Martinez and Trevino v. Thaler (Trevino I), 569 U.S. 

413 (2013). In the procedural default context, IAHC can constitute “cause”

for defaulting an IATC claim. Tong contends IAHC should also serve as

“good cause” under Rhines for failing to exhaust his Wiggins claim.

Our precedent forecloses Tong’s argument. In Williams v. Thaler, we 

held that IAHC cannot serve as “good cause” for a Rhines stay. 602 F.3d 

291, 309 (5th Cir. 2010), abrogated on other grounds by Thomas v. Lumpkin, 995 

F.3d 432, 440 (5th Cir. 2021). Tong responds that Williams was abrogated by 

Martinez and Trevino I. In Williams, he points out, we tied our Rhines “good

cause” holding to our finding no “cause” for procedural default. It is true 

that Martinez and Trevino I overruled our procedural default holding in 

Williams by permitting IAHC to serve as “cause.” See Martinez, 566 U.S. at 

17; Trevino I, 569 U.S. at 429. But those cases said nothing about what 

constitutes “good cause” for failure to exhaust under Rhines. Therefore, 

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Williams remains binding in this circuit as to the Rhines standard. We would 

violate our rule of orderliness by extending Martinez to Rhines.

3 See United 

States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014) (explaining we have

“specifically rejected the idea that later Supreme Court and other decisions 

that were not directly on point could alter the binding nature of our prior 

precedent”).

2.

Tong next contends his Wiggins claim is potentially meritorious

because it meets an exception to Texas’s bar on second-or-successive habeas 

applications. See Rhines, 544 U.S. at 278. Texas courts will not address the 

merits of unraised claims that could have been brought on initial habeas. But 

this bar does not apply if, “by clear and convincing evidence, but for a 

violation of the United States Constitution no rational juror would have 

answered in the state’s favor one or more of the special issues that were 

submitted to the jury in the applicant’s trial under Article 37.071, 37.0711, or 

37.072.” Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a)(3). The 

district court ruled that no § 5(a) exception applied to Tong’s case.4

Tong nonetheless predicts that Texas courts may still consider his

Wiggins claim because it meetsthe exception in § 5(a)(3) for actual innocence 

of the death penalty. According to the TCCA, § 5(a)(3) “more or less”

adopted the Supreme Court’s actual innocence of the death penalty rule in

_____________________

3 Cf. Blake v. Baker, 745 F.3d 977, 983–84 (9th Cir. 2014) (holding “good cause” 

showing under Rhines “cannot be any more demanding than” showing “cause” under 

Martinez).

4 Tong’s counsel conceded at oral argument the first exception—that the factual 

or legal basis for his claim was unavailable on the date of his previous application, 

§ 5(a)(1)—is no longer relevant to this case given our decision in Sandoval Mendoza v. 

Lumpkin, 81 F.4th 461 (5th Cir. 2023) (per curiam).

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Sawyer v. Whitley, 505 U.S. 333 (1992). Ex parte Blue, 230 S.W.3d 151, 159–

60 (Tex. Crim. App. 2007). Sawyer limited this exception to situations where 

alleged constitutional errors only “affect[ed] the applicant’s eligibility for the 

death penalty under state statutory law.” Blue, 230 S.W.3d at 161. Tong does 

not argue, however, that additional mitigating evidence would have made

him ineligible for the death penalty; he contends only that it would have 

influenced the jury’s decision to impose that penalty. So, under Sawyer, Tong

could not avail himself of § 5(a)(3) because he was “unquestionably eligible” 

for the death penalty under Texas law. Id. at 160.

It is true, though, that the TCCA has “left open the possibility that a 

Wiggins claim might also be cognizable under Section 5(a)(3).” Balentine v. 

Thaler, 626 F.3d 842, 856 (5th Cir. 2010). A footnote in the TCCA’s Blue

decision “hesitate[d] to declare that” § 5(a)(3) “wholly codifies” the 

doctrine of ineligibility for the death penalty. 230 S.W.3d at 161 n.42. But the 

TCCA “express[ed] no ultimate opinion on this question.” Ibid. It is 

unclear, then, under Texas law whether a Wiggins claim can satisfy the 

§ 5(a)(3) exception. See ibid.

We conclude that the TCCA’s hesitance on this point, as expressed 

in the Blue footnote, does not make Tong’s Wiggins claim potentially 

meritorious under Rhines. In essence, Tong asks us to find this claim 

potentially meritorious to allow the TCCA to revisit its precedent. We 

recently held, though, that permitting a state court to revisit its procedural 

default precedent is not sufficient grounds for a Rhines stay. See Sandoval 

Mendoza, 81 F.4th at 482. In Sandoval Mendoza, a Texas habeas petitioner 

argued for the first time in federal court that his trial counsel was ineffective. 

Id. at 467. We refused his request for a Rhines stay to exhaust this 

procedurally defaulted claim because it was meritless under the second-orsuccessive bar. Id. at 482. Although addressing the § 5(a)(1) exception, we 

noted that “[t]he opportunity to reconsider state court precedent . . . is not 

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in itself enough to grant a Rhines stay.” Ibid. Similarly, we cannot approve a 

Rhines stay based solely on dicta that “left open the possibility that a Wiggins

claim might also be cognizable under Section 5(a)(3).” Balentine, 626 F.3d at 

856. Although Blue’s footnote questioned whether a Wiggins claim could meet 

§ 5(a)(3), the TCCA has never held it does. The mere possibility that it 

might does not make Tong’s claim potentially meritorious under Rhines.

Furthermore, even after Blue, we have held that a Wiggins claim is 

meritless under § 5(a)(3). See Haynes v. Quarterman, 526 F.3d 189, 197 (5th 

Cir. 2009). The Haynes petitioner argued that, while unpresented mitigating 

evidence would not have made him ineligible for the death penalty, it “could 

have influenced the jury’s discretion” to impose it. Ibid. We declined to grant 

a Rhines stay because, under Blue, the petitioner had “no meritorious 

argument that the [TCCA] would allow him to file a successive application 

for post-conviction relief.” Ibid.; cf. Balentine, 626 F.3d at 856 (“We will not 

interpret that same perfunctory order as having reached the merits of [the 

Wiggins] issue the Texas court at most has identified it might one day 

reach.”); Sandoval Mendoza, 81 F.4th at 482 (“The opportunity to 

reconsider state court precedent . . . is not in itself enough to grant a Rhines

stay.”). Likewise, Tong does not argue that any mitigating evidence would 

have rendered him ineligible for the death penalty, only that it might have 

influenced the jury’s decision.

***

In sum, we hold that the district court did not abuse its discretion in 

declining to grant a Rhines stay.

B. Wiggins claim

Tong next argues that he should be granted a COA to appeal the 

denial of his Wiggins IATC claim. Because no reasonable jurist could debate 

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that there was no cause to excuse this defaulted claim, we deny Tong’s COA

request.

While conceding his Wiggins IATC claim is procedurally defaulted, 

Tong argues his state habeas counsel’s ineffectiveness provides cause to 

excuse that default. See Martinez, 566 U.S. at 9 (recognizing this “narrow 

exception” to usual rule that habeas counsel’s error cannot excuse default); 

see also Trevino I, 569 U.S. at 428 (holding the Martinez exception applies to 

Texas’s post-conviction system). Accordingly, Tong must show state habeas 

counsel’s deficient performance prejudiced him under Strickland v. 

Washington, 466 U.S. 668 (1984). See Martinez, 566 U.S. at 14. He must also 

show that the underlying IATC claim is “substantial,” meaning it “has 

some merit.” Ibid.; Trevino I, 569 U.S. at 423. The district court denied a 

COA on this latter ground, ruling that Tong’s IATC claim lacked merit. 

Tong’s trial counsel, the court noted, “retained professional investigators, 

conducted interviews with Tong and members of his family, and retained 

appropriate experts to assist in the preparation of Tong’s mitigation case.” 

So, any putative error by state habeas counsel could not excuse the default. 

Cf. Trevino v. Davis (Trevino II), 861 F.3d 545, 549 (5th Cir. 2017) 

(“assum[ing], without deciding” that state habeas counsel was ineffective 

because the underlying Wiggins IATC claim lacked merit).

Tong argues trial counsel should have discovered and presented

mitigating evidence concerning “the continued cycle of abuse, 

abandonment, and sexual abuse that Tong suffered in the decade after he 

came to the United States as a child.” He contends counsel failed to follow

the TCCA’s admonition that reasonable counsel in capital cases should 

inquire into possible childhood abuse, and not rely solely on the defendant’s 

own account. Although Tong gave no indication of sexual abuse in his 

biographical history to counsel, he now argues that a reasonable mitigation 

investigation would have uncovered the abuse. Trial counsel was inadequate, 

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he argues, by interviewing only a few family members; by putting on a 

mitigation case at trial that lasted only half a day; and by requesting 

investigation funding only shortly before trial.

The State maintains trial counsel’s mitigation investigation did not 

fall below professional standards. It highlights that counsel employed two 

investigators, who logged over a hundred hours in mitigation investigation, 

interviewing Tong, relatives, and acquaintances on numerous occasions.

Counsel also had a complete report of Tong’s educational history, 

neuropsychologic evaluation, and evaluation from a mitigation expert on the 

Vietnamese immigrant experience. Counsel then tactically decided which 

testimony to present based on whether it would support or hinder Tong’s 

mitigation case.

We agree with the district court that Tong’s IATC claim lacks merit. 

At a minimum, the claim fails because Tong has not shown he was prejudiced 

by counsel’s allegedly inadequate mitigation investigation. See Strickland, 

466 U.S. at 700 (“Failure to make the required showing of either deficient 

performance or sufficient prejudice defeats the ineffectiveness claim.”).

Tong must show that, “under Texas’s capital sentencing statute, the 

additional mitigating evidence is so compelling that there is a reasonable 

probability that at least one juror could have determined that because of the 

defendant’s reduced moral culpability, death is not an appropriate 

sentence.” Canales v. Davis, 966 F.3d 409, 412 (5th Cir. 2020) (cleaned up) 

(quoting Kunkle v. Dretke, 352 F.3d 980, 991 (5th Cir. 2003)). The likelihood 

of a different result must be substantial, not just conceivable. Ibid. (quoting 

Harrington v. Richter, 562 U.S. 86, 112 (2011)). To assess prejudice, “we 

reweigh the evidence in aggravation against the totality of available mitigating 

evidence.” Ibid. (quoting Wiggins, 539 U.S. at 534).

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To show prejudice, Tong relies entirely on 2014 affidavits submitted 

by his cousins, John and Sang, describing sexual abuse. These affidavits are 

the only evidence that Tong was sexually abused as a child. We cannot 

consider them, however, because they are not part of the state-court record.

The Supreme Court held in Shinn that, under 28 U.S.C. § 2254(e)(2), “a 

prisoner is ‘at fault’” for failing to develop the state-court record, “even 

when state postconviction counsel is negligent.” Shinn, 596 U.S. at 384.5 We 

can expand the state-court record only if the petitioner satisfies

§ 2254(e)(2)’s stringent requirements. Ibid. Tong does not contend he meets 

any of those requirements, so we cannot consider his cousins’ affidavits, or 

any evidence of sexual abuse contained therein. See ibid.

Accordingly, there can be no conceivable, let alone substantial,

likelihood that a juror would have changed his mind with respect to Tong’s 

capital sentence. Cf. Canales, 966 F.3d at 412. Without any additional 

mitigation evidence to tip the scales, we have nothing new to “reweigh.”

Ibid.6 The district court was therefore correct that Tong’s underlying 

Wiggins IATC claim was insubstantial, regardless of any deficient 

_____________________

5 In Mullis, we explained that Shinn bars a petitioner from using “evidence 

developed in a Martinez hearing to assess the [petitioner’s] underlying merits claim of 

[IATC].” Mullis, 70 F.4th at 910. In other words, a petitioner cannot factually develop an 

IAHC claim that is “little more than a Hail Mary pass to get evidence admitted as to the 

merits of an IATC claim.” Ibid. That is precisely what Tong tries do here. He admits that

he “only raises the ineffectiveness of his state post-conviction counsel as means to permit 

merits review of [his Wiggins IATC claim].” Shinn forecloses that attempt.

6 Furthermore, even if there were additional mitigating evidence to consider, we 

would have to reweigh it against the extraordinary aggravating evidence presented to the 

jury about Tong’s continued dangerousness. Most importantly, the jury heard that only 

two days before he murdered Trinh, Tong remorselessly shot a sick toddler and a father 

after breaking into a home and holding the mother at gunpoint.

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performance by his state habeas counsel. As a result, no reasonable jurist 

could debate that there was no cause justifying the procedural default.

In sum, we deny Tong’s request for a COA on this claim.

C. Voir dire claim

Finally, we address Tong’s claim that the state court voir dire violated 

his right to due process. Tong was granted a COA on this claim. We hold the 

claim is procedurally defaulted and Tong has shown no cause to excuse the 

default.

1.

At the beginning of jury selection, the trial judge informed defense 

counsel that Tong was allowed unlimited peremptory strikes. This decision

contravened Texas law, which permits only 15 peremptory strikes. See Tex. 

Code Crim. P. art. 35.15(a). After Tong used 25 peremptory strikes and 

10 jurors were seated, the State objected and the judge changed course. It

announced that Tong had used all available peremptory challenges and, going 

forward, would have to challenge potential jurors for cause. The judge 

overruled defense counsel’s objection to this change in procedure. Tong 

wanted to use a peremptory strike on the eleventh juror—Venireperson

Sullivan—but the judge ruled Tong was out of peremptory strikes. Tong 

admits there were no grounds to strike Sullivan for cause.

Tong now contends that the trial court’s change in voir dire procedure 

denied him due process under the Fourteenth Amendment. He raised this

voir dire claim on direct appeal at the TCCA, which rejected the claim as

inadequately briefed under Texas Rule of Appellate Procedure 38.1(h). Tong, 

25 S.W.3d at 710.

We cannot review a habeas claim if the last state court to consider it 

“expressly relied on a state ground for denial of relief that is both independent

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of the merits of the federal claim and an adequate basis for the court’s 

decision.” Roberts v. Thaler, 681 F.3d 597, 604 (5th Cir. 2012) (citation 

omitted). If the state court relied on a procedural rule to deny relief, the rule 

must be “firmly established and regularly followed.” Id. at 604–05 (internal 

quotation marks and citation omitted). We have held that “Texas’s rule 

regarding inadequate briefing in the capital context constitutes a valid 

procedural bar to federal habeas relief.” Id. at 607.7 That rule has been 

“regularly followed by [Texas] courts, and applied to the majority of similar 

claims.” Ibid. (alteration adopted) (citation omitted). Therefore, Tong’s voir 

dire claim is procedurally defaulted.

Tong, however, argues the default is excused by his state appellate 

counsel’s deficient performance on direct appeal. See id. at 605 (petitioner 

may overcome independent-and-adequate-state-ground default by showing 

cause and prejudice) (citations omitted). The Supreme Court acknowledges

that ineffective assistance of appellate counsel (“IAAC”) for failing 

properly to preserve a constitutional claim for review in state court can 

provide cause to excuse procedural default. See, e.g., Murray v. Carrier, 477 

U.S. 478, 488–89 (1986). Appellate counsel’s performance, however, “must 

have been so ineffective as to violate the Federal Constitution”—that is, it 

violated the petitioner’s right to effective assistance of counsel. Edwards v. 

Carpenter, 529 U.S. 446, 451 (2000) (citing Carrier, 477 U.S. at 488–89).

8

_____________________

7 Tong admits Roberts controls on this point but “assert[s] this holding is 

incorrect” for preservation purposes.

8 Additionally, a claim of IAAC must first “be presented to the state courts as an 

independent claim before it may be used to establish cause for a procedural default.” 

Carrier, 477 U.S. at 489. Tong did so by bringing the IAAC claim before the TCCA in his 

state habeas petition. Seeing no constitutional error in the trial court’s voir dire ruling, the 

TCCA ruled that appellate counsel was not ineffective for failing to adequately brief this

issue. Tong does not, however, independently appeal the denial of his IAAC claim. He 

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2.

We must determine, then, whether Tong’s state appellate counsel 

performed deficiently and whether the deficiency prejudiced his defense. See 

Coleman, 501 U.S. at 752 (citing Strickland, 466 U.S. at 690); Moore v. 

Vannoy, 968 F.3d 482, 488 (5th Cir. 2020). In other words, Tong must show 

“a reasonable probability that, but for” appellate counsel’s inadequate 

briefing, “the result of [his appeal] would have been different.” Strickland, 

466 U.S. at 694.

The TCCA denied habeas relief on his IAAC claim because Tong

did not “demonstrate that any of the jurors who served during his capital 

murder trial were not qualified” or could be “subject to a challenge for 

cause.” Moreover, Tong failed “to show that the trial court erred in its voir 

dire process or that the voir dire process harmed the applicant.” Tong argues, 

to the contrary, that he showed prejudice because an adequately briefed voir 

dire claim would have been a “dead-bang” winner on appeal.

We disagree. Criminal defendants have the right to trial by an 

impartial and competent jury, a right protected by the voir dire process. See 

U.S. Const. amend. VI; Peña-Rodriguez v. Colorado, 580 U.S. 206, 220 

(2017). It is the trial judge’s province to conduct jury selection and seat an 

impartial jury. Skilling v. United States, 561 U.S. 358, 386 (2010). Because 

peremptory challenges “are not required by the Constitution,” it is “for the 

State to determine the number of peremptory challenges allowed and to 

define their purpose and the manner of their exercise.” Ross v. Oklahoma, 487 

U.S. 81, 89 (1988). Absent a showing of juror bias, there is no federal 

constitutional concern regarding deprivation of peremptory challenges. See 

_____________________

instead addresses IAAC simply as a means to address the merits of his underlying voir dire

claim. We therefore do not address the TCCA’s ruling on his independent IAAC claim.

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Rivera v. Illinois, 556 U.S. 148, 157 (2009). “[T]he mistaken denial of a stateprovided peremptory challenge does not, without more, violate the Federal 

Constitution.” Id. at 158. The Due Process Clause is concerned only with 

“the fundamental elements of fairness in a criminal trial,” not “meticulous 

observance of state procedural prescriptions.” Ibid. (citation omitted).

Tong fails to show that the voir dire in his state trial implicated any due 

process concerns. The Supreme Court’s decisions in Rivera and Skilling

show why this is so. In Rivera, even where the trial court seated a juror over 

the defendant’s peremptory challenge—a decision which “was at odds with 

state law”—there was no constitutional violation because the defendant 

could not point to a single “biased juror” who sat. Id. at 159–60 (citation 

omitted). The Court stated: “If a defendant is tried before a qualified jury 

composed of individuals not challengeable for cause, the loss of a peremptory 

challenge due to a state court’s good-faith error is not a matter of federal 

constitutional concern.” Id. at 157. Similarly, in Skilling, the defendant 

complained that he would have struck six more jurors “had he not already 

exhausted his peremptory challenges” provided by the trial court. 561 U.S. 

at 397. The Supreme Court found no grounds to reverse the guilty verdict

because the defendant could not “establish that a presumption of prejudice 

arose or that actual bias infected the jury that tried him.” Id. at 398.

Tong cannot overcome these precedents. He feebly argues that he was 

prejudiced because one cannot know how voir dire would have played out had 

the judge followed Texas’s rules on peremptory strikes. That is pure 

speculation. Tong, moreover, ignores that the judge’s error benefited him by 

giving him 10 extra peremptory strikes.

More importantly, Tong fails to identify any biased juror seated as a 

result of the change in procedure. See Skilling, 561 U.S. at 398. The only juror

on whom he wanted to use a peremptory strike—Sullivan—was by Tong’s 

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own admission neither biased nor subject to for-cause challenge. He argues 

only that defense counsel was concerned with some of her “troubling” voir 

dire responses. But he fails to explain why such concerns rise to the level of a

due process violation.

In sum, Tong fails to show that, even if his voir dire claim had been 

properly briefed, the TCCA would likely have ruled in his favor on direct 

appeal. See Strickland, 466 U.S. at 694; Moore, 968 F.3d at 489–90. As a 

result, Tong cannot show cause to excuse the procedural default of that 

claim.

9

IV. Conclusion

The district court’s order denying Tong’s request for a Rhines stay is 

AFFIRMED. Tong’s motion for an additional COA on his Wiggins claim 

is DENIED. The district court’s judgment denying Tong a writ of habeas 

corpus on his voir dire claim is AFFIRMED.

_____________________

9 Tong also tries a last-ditch argument that his sentence should be vacated because 

the trial court’s voir dire ruling was a structural error. We need not address this argument 

because, even assuming structural error (which we do not decide), Tong must still show 

cause to excuse his procedural default, which he fails to do. See, e.g., McCoy v. United States, 

815 F.3d 292, 295–96 (7th Cir. 2016) (requiring § 2255 petitioner to demonstrate cause and 

prejudice to excuse procedural default of a claim of structural error); Jones v. Bell, 801 F.3d 

556, 563 (6th Cir. 2015) (“Habeas petitioners must additionally show ‘actual prejudice’ to 

excuse their default—even if the error that served as the ‘cause’ is a structural one that 

would require a new trial.”); Hatcher v. Hopkins, 256 F.3d 761, 764 (8th Cir. 2001) (“The 

Supreme Court has recently detailed the circumstances necessary to bypass a state-law 

procedural default in a § 2254 petition, and ‘structural error’ is not listed among them.” 

(citing Coleman, 501 U.S. at 750)).

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