The full Fifth Circuit voted July 6 to rehear a discovery dispute stemming from Carlos Ayestas’ decades-old capital case. It did so over the objection of Judge Jerry Smith, who wrote separately to argue that his colleagues are spending the court’s en banc bandwidth on the wrong case.
The order vacates a March 2026 panel opinion — which Judge Smith authored — that sided with the Harris County district attorney’s office in a fight over which files it must turn over to Ayestas.
Ayestas, who was sentenced to death for the 1995 murder of Santiaga Paneque, is pursuing a claim for selective prosecution based on a charging memo that he says recommended the death penalty at least in part because of his noncitizen status. He claims this document was not made available to him at trial. A federal district court ordered the Harris County DA’s office to hand over decades of charging records and the prosecutor’s full file. The DA’s office appealed.
In March, the panel held that the district court lacked jurisdiction over the selective prosecution claim because it amounted to an improper successive habeas petition under 28 U.S.C. § 2244(b).
On that basis, the panel vacated the discovery order. In dissent, Judge Leslie Southwick argued that the appeal should never have been heard, since it was based on a magistrate judge’s order that the DA’s office failed to object to at the district court.
In his dissent from rehearing, Judge Smith argued that this case does not warrant the full court’s attention. He pointed to several recent en banc decisions dealing with the kinds of legal issues — such as the Ten Commandments in public schools, presidential authority over alleged alien enemies and a proposed constitutional right to clean water — that he believes should be the focus of the court’s en banc docket.
The judge contrasted those “more weighty cases” with what he called a “routine non-party discovery order” that has almost no stakes for anyone but the Harris County DA’s office.
The decision to grant full-court rehearing in Ayestas contributes to ongoing debates over the Fifth Circuit’s reputation as an unusually aggressive practitioner of en banc review. In recent years, the court has drawn scrutiny from appellate lawyers and legal scholars who question the circuit’s eagerness to second-guess the decisions of three-judge panels.
But while some critics attack the court for overusing the tool, in his dissent, Judge Smith explicitly rejected the idea that the Fifth Circuit should limit its en banc activity.
“Generally speaking, there should be more en banc polls, and this court does not grant nearly as many en banc rehearings as it should; I more often vote in favor of rehearings than against,” Judge Smith wrote.
In his view, the court has “plenty of resources” to handle a large docket. The issue in this case was not that the court intervenes too often, but that the court should be tackling more important issues.
Smith also objected on the grounds that the case featured several potential jurisdictional grounds for dismissal, and so the en banc court could make its decision on narrower grounds without ever reaching the § 2244(b) issue that was the basis for the panel majority’s decision.
In that case, Judge Smith predicted, the district court will assume it still has jurisdiction over the case, which would likely mean a return trip to the Fifth Circuit appeals court.
He closed by noting that the courts are now in their “fourth decade of delaying, and thus denying, justice for Santiaga Paneque.”
The rehearing is set for argument at the Fifth Circuit’s September en banc sitting.
The case is Ayestas v. Harris County, No. 25-70014.