Wood v. Patton and the “Illusory-Right” Argument:
Statistical Denial Rates Alone Cannot Establish a Due-Process Violation in Post-Conviction DNA Statutes

Introduction

Wood v. Patton, No. 25-70004 (5th Cir. Aug. 6, 2025), is the latest chapter in a long-running battle over access to post-conviction DNA testing in Texas capital cases. David Wood, convicted and sentenced to death in 1992 for six murders, invoked 42 U.S.C. § 1983 to attack Texas Code of Criminal Procedure Chapter 64—the State’s DNA-testing regime—on procedural due-process grounds. He alleged that the Texas Court of Criminal Appeals (CCA) had effectively nullified the legislature’s grant of DNA testing and had unexpectedly expanded the statute’s “unreasonable delay” bar.

After the Fifth Circuit originally dismissed his suit, the Supreme Court vacated and remanded in light of Gutierrez v. Saenz, 606 U.S. —, 145 S. Ct. 2258 (2025), a decision redefining the standing analysis for such § 1983 claims. On remand, the Fifth Circuit agreed that Wood now has standing, but nevertheless affirmed dismissal under Rule 12(b)(6). The ruling establishes an important doctrinal point: a bare statistical record of state-court denials—even an unbroken string of them—does not, without more, make a post-conviction DNA statute constitutionally infirm. The decision also clarifies that Chapter 64’s “unreasonable delay” clause was never limited to the presence of an execution date and that using other delay factors is neither “novel” nor unforeseeable.

Summary of the Judgment

• Standing (Article III): In light of Gutierrez, Wood has standing on both theories because success on his claims would remove a legal barrier to DNA testing and is “substantially likely” to influence the prosecutor’s future decision.
• Facial “Illusory-Right” Claim: Wood’s allegation that a fifteen-year, twenty-three-case denial streak renders Chapter 64 unconstitutional is conclusory. He pled no facts suggesting that the CCA’s articulated reasons in those cases were impermissible or that testing is impossible in practice.
• Novel-Construction Claim: Wood argued that the CCA’s use of multi-factor delay analysis was unforeseeable because earlier cases focused on execution dates. The Fifth Circuit rejected this, pointing to Reed v. State, 541 S.W.3d 759 (Tex. Crim. App. 2017), and earlier authorities establishing a fact-specific inquiry.
• Result: District court’s Rule 12(b)(6) dismissal affirmed; Wood’s execution remains stayed by state court, but the federal case ends.

Detailed Analysis

A. Precedents Cited

1. Gutierrez v. Saenz, 145 S. Ct. 2258 (2025)
   Clarified that a § 1983 plaintiff challenging state DNA procedures has standing so long as the complaint attacks the “barrier” between him and testing; courts should not speculate about alternative grounds the prosecutor might later invoke.
2. Reed v. Goertz, 598 U.S. 230 (2023)
   Earlier landmark establishing that success in a § 1983 DNA-testing suit would likely influence a prosecutor, satisfying redressability.
3. District Attorney’s Office v. Osborne, 557 U.S. 52 (2009)
   Denied a substantive due-process right to DNA testing but allowed narrow procedural challenges where state processes are “fundamentally inadequate.”
4. Skinner v. Switzer, 562 U.S. 521 (2011)
   Authorized § 1983 procedural due-process suits against state DNA statutes as “authoritatively construed” by state courts.
5. Texas authorities on “unreasonable delay,” culminating in Reed v. State (2017), which expressly articulated a flexible, multi-factor test.

B. The Court’s Legal Reasoning

1. Standing after Gutierrez

The panel read Gutierrez as binding authority that eliminates most causation-and-redressability objections once a plaintiff challenges all statutory roadblocks to DNA testing. Wood’s complaint explicitly attacked the CCA’s construction of Chapter 64 in two distinct ways, thereby targeting the total barrier. That is enough for Article III.

2. Facial Challenge—Is the Right “Illusory”?

To strike down a state procedural mechanism, federal courts ask whether it “offends principles of fundamental fairness” (Osborne). Wood’s pleading burden under Twombly / Iqbal required facts showing the CCA’s interpretation creates an “automatic barricade.” Instead, he offered only the statistic that the CCA had denied 23 appeals since 2009.

The court highlighted two fatal gaps:

• Different denials relied on different statutory clauses; Wood did not challenge those specific grounds.
• Trial courts, and even the CCA before 2009, had granted testing, and lower Texas courts had continued to do so within the alleged “fifteen-year drought,” refuting the claim that testing is categorically unavailable.

3. “Novel Construction” Claim—Unreasonable Delay

Wood insisted that the CCA silently adopted a new rule making an execution date the sine qua non of “unreasonable delay,” and then broke its own rule in his case. The panel found no textual or precedential basis for that rule, emphasizing that Chapter 64 never mentions execution dates and that pre-Reed cases already examined a broad set of factors (timing of request, case history, ability to raise earlier, etc.). Thus, any litigant should have foreseen that piecemeal, serial requests—Wood filed six motions between 2010 and 2017—could be deemed dilatory.

C. Practical Impact

• Higher Pleading Thresholds: Plaintiffs cannot use statewide statistics as a substitute for concrete allegations showing why the statute, as interpreted, is fundamentally unfair. Detailed factual pleading is essential.
• No “Free Shot” Post-Gutierrez: The decision signals that while standing hurdles have lowered, merit hurdles remain steep. § 1983 DNA suits will now likely pivot from jurisdiction to Rule 12(b)(6) and summary-judgment stages.
• Guidance for State Courts: The CCA’s multi-factor approach to “unreasonable delay” stands endorsed by federal precedent, giving Texas courts confidence in continuing fact-intensive analyses.
• Strategic Considerations for Capital Defenders: Repeated, expansive or serial DNA motions may backfire by evidencing delay. Defense teams should consolidate requests early and justify any late discoveries thoroughly.

Complex Concepts Simplified

Procedural vs. Substantive Due Process

Substantive due process concerns fundamental rights themselves; the Supreme Court in Osborne held there is no freestanding substantive right to DNA testing. Procedural due process asks whether the state’s procedures for vindicating a state-created right are fair.

Facial vs. As-Applied Challenge

A facial attack claims the law is always unconstitutional; an as-applied attack targets the law’s application to a particular litigant.

Article III Standing

Requires (1) injury-in-fact, (2) causation (traceability), and (3) redressability—i.e., that a favorable order would likely remedy the injury.

Rooker-Feldman Doctrine

Bars federal review of state-court judgments; but a litigant may challenge the constitutionality of statutes or rules applied below, so long as the federal suit does not seek to overturn the state judgment itself.

Rule 12(b)(6) & Twombly/Iqbal Standard

A complaint must allege facts making entitlement to relief “plausible,” not merely “possible” or “conceivable.” Courts disregard conclusory labels and naked assertions.

Conclusion

Wood v. Patton closes an important loop left open by Gutierrez. While Gutierrez broadened standing for § 1983 DNA-testing challenges, Wood demonstrates that plaintiffs still carry a heavy burden on the merits. Federal courts will not invalidate state DNA procedures merely because appellate success has been rare; plaintiffs must show that statutory construction itself necessarily forecloses relief or violates fundamental fairness. Likewise, allegations of “novel” state-court interpretations must identify genuine doctrinal leaps, not merely different factual applications of existing principles. Going forward, the decision will likely channel litigation energy into building robust factual records—both in state trial courts and in federal pleadings—rather than relying on broad statistical or trend arguments alone.

Key takeaway: Post-conviction DNA testing remains a statutory, not constitutional, entitlement; challenging it under the Due Process Clause requires granular, fact-specific allegations that the state’s procedural machinery is fundamentally rigged—not simply evidence that it rarely works in the movant’s favor.