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Leonel Torres
HERRERA
Classification: Murderer
Characteristics: To
avoid arrest
Number of victims: 2
Date of murders:
September 29,
1981
Date of arrest: 5 days after
Date of birth:
September 17,
1947
Victims profile: David Rucker and Enrique
Carrisalez(Texas police officers)
Method of murder:
Shooting
Location: Cameron County, Texas, USA
Status: Executed
by lethal injection in Texas on May 15,
1993
I am innocent, innocent, innocent. Make
no mistake about this; I owe society nothing. Continue the
struggle for human rights, helping those who are innocent,
especially Mr. Graham. I am an innocent man, and something
very wrong is taking place tonight. May God bless you all. I
am ready.
Leonel Torres
Herrera (September 7, 1947
– May 12, 1993) was sentenced to death for murdering
two Texas police officers, David Rucker and Enrique
Carrisalez. The murders occurred on September 29,
1981 at separate locations along a highway between
Brownsville and Los Fresnos.
Enrique Hernandez,
Carrisalez’ patrol car partner, identified Herrera.
Hernandez also said Herrera was only person in the
car that they stopped. Carrisalez, who did not die
until 9 days after he was shot, identified Herrera
from a single photo. A license plate check showed
that the stopped car belonged to Herrera’s live in
girlfriend.
In 1984, after Herrera’s brother
Raul was murdered, Raul’s attorney came forward and
signed an affidavit stating that Raul told him he
had killed Rucker and Carrisalez. A former cellmate
of Raul also came forward and signed a similar
affidavit. Raul’s son, Raul Jr., who was nine at the
time of the killings, signed a third affidavit. It
averred that he had witnessed the killings. Jose
Ybarra, Jr., a schoolmate of the Herrera brothers,
signed a fourth affidavit.
Ybarra alleged that Raul Sr. told
him in 1983 that he had shot the two police officers.
Herrera alleged that law enforcement officials were
aware of Ybarra’s statement and had withheld it in
violation of Brady v. Maryland. Armed with
these affidavits, Herrera petitioned for a new trial,
but was denied relief in state courts. One court did
dismiss Herrera’s Brady claim due to lack of
evidence. Herrera’s appeal eventually reached the
U.S. Supreme Court, where it was argued in October
1992.
In January 1993, the U.S. Supreme
Court ruled that Herrera's claim of actual innocence
was not a bar to his execution. He had to show that
there were procedural errors in his trial in order
to gain relief. Justice Rehnquist wrote that the "presumption
of innocence disappears" once a defendant has been
convicted in a fair trial. Dissenting Justice
Blackmun wrote: "The execution of a person who can
show that he is innocent comes perilously close to
simple murder." Herrera was executed by lethal
injection on May 12, 1993, four months after the
ruling.
Herrera declined a last meal. His
final statement was:
I am innocent, innocent,
innocent. Make no mistake about this; I owe society nothing.
Continue the struggle for human rights, helping those who are
innocent, especially Mr. Graham. I am an innocent man, and
something very wrong is taking place tonight. May God bless you
all. I am ready.
904 F.2d 944
LeonelTorresHerrera, Petitioner-appellant,
v.
James A. Collins, Director, Texas Department of
Criminal Justice,
Institutional Division, Respondent-appellee
United States Court of
Appeals, Fifth Circuit.
June 25, 1990
Appeal from the United
States District Court for the Southern
District of Texas.
Before KING, JOHNSON and
JONES, Circuit Judges.
JOHNSON, Circuit Judge:
A jury
found LeonelTorresHerrera guilty
of capital murder. Punishment was
assessed at death.
Herrera is now before this Court
on appeal from the district court's
denial of his writ of habeas corpus.
Concluding that the existing law
warrants no other result, we affirm the
district court's denial of habeas relief.
I.
PROCEDURAL HISTORY
A jury
found Herrera
guilty of the capital murder of Enrique
Carrisalez, a peace officer acting in
the course of his official duties. See
Tex.Penal Code Ann. 19.03 (Vernon 1977).
After the jury answered the special
issues affirmatively, punishment was
assessed at death. See Tex.Code Crim.Pro.
art. 37.071 (Vernon 1981). The Texas
Court of Criminal Appeals affirmed the
conviction on direct appeal. The United
States Supreme Court refused to grant a
writ of certiorari.
The
state court issued a warrant of
execution, ordering
Herrera to be executed by lethal
injection before sunrise on August 16,
1985. On July 2, 1985,
Herrera filed an application for
State writ of habeas corpus pursuant to
Tex.Code Crim.Proc.Ann. art. 11.07.
Relief was denied.
Herrera then filed a federal
petition for writ of habeas corpus and
motion for stay of execution in the
United States District Court for the
Southern District of Texas. The federal
district court granted the unopposed
stay on August 12, 1985; the federal
district court ultimately granted the
State's motion for summary judgment and
denied Herrera
federal habeas relief.
Herrera has
appealed the judgment of the federal
district court.
Herrera argues that the district
court erred in concluding that two pre-trial
photographic identifications by two
individuals were not impermissibly
suggestive so as to deny
Herrera due
process. The district court granted a
certificate of probable cause on October
19, 1989. With Herrera's
appeal properly before us, we turn now
to address his contentions.
II.
FACTUAL BACKGROUND
On the
evening of September 29, 1981, at
approximately 10:40 p.m., the body of
Texas Department of Public Safety
Officer David Rucker was discovered 6.2
miles east of Los Fresnos, Texas. Rucker
was killed by a gunshot wound to the
head. There were no witnesses to the
shooting. Herrera's
social security card, however, was
discovered near the body. Ten minutes
later, Los Fresnos police officer
Enrique Carrisalez stopped a speeder
traveling west on the road from where
Rucker's body was found. Carrisalez
parked on the shoulder with his
headlights illuminating the driver's
side of the speeding car. Carrisalez
radioed the driver's license plate
number to the dispatcher.
As
Carrisalez approached the car which had
been stopped, the driver of that car
stepped toward Carrisalez and fired one
or more shots. Carrisalez was shot in
the chest. He died nine days later from
the wound.
Civilian Enrique Hernandez was
accompanying Carrisalez on the night of
the shooting. Hernandez witnessed the
shots fired on Carrisalez, and
immediately took cover on the seat of
the patrol car. When Hernandez looked
over the dashboard again, he saw
Carrisalez fire four shots as the car
which had been stopped sped away.
Hernandez radioed in a description of
the suspect's automobile. Almost
immediately afterwards, Hernandez was
interviewed by police officers. A few
hours later, on the morning of September
30, Hernandez gave a statement to Texas
Ranger Bruce Casteel. The police then
proceeded to obtain an arrest warrant
for the as yet unidentified suspect.
Also
on the morning of September 30,
Hernandez was called to the Harlingen
police station and shown a display of
six photographs. Hernandez picked out
three photographs and said that anyone
of them could have been the killer; a
photograph of Hernandez was among those
selected.
The
next afternoon, two officers went to the
hospital room of Officer Carrisalez. The
officers showed Carrisalez one
photograph of Herrera
and asked Carrisalez three times if he
could identify it. Although Carrisalez
was unable to speak, he nodded his head,
thereby identifying
Herrera as the assailant. Later
in the day, Hernandez was shown the same
photograph. He too positively identified
Herrera as the
gunman. The photograph was a mug shot
that carried the notation "Edinburg
Police Department."
On
October 4, Herrera
was apprehended. Two days later,
Hernandez picked
Herrera's photograph from a
second photo lineup. The photograph of
Herrera used in
this instance was not the same
photograph earlier shown to both
Carrisalez and Hernandez.
Finally, on October 24, Hernandez picked
Herrera out of
a five person live lineup.
III.
DISCUSSION
Herrera now
asserts that he has been denied due
process of law because the pre-trial
identification procedures were
impermissibly suggestive and created a
substantial likelihood of
misidentification such that the in-court
identification was unduly tainted. We
disagree, and affirm.
In
Simmons v. United States, 390 U.S. 377,
88 S.Ct. 967, 19 L.Ed.2d 1247 (1968),
the Supreme Court announced the now
familiar rule that a conviction based on
an eyewitness identification at trial
following a pretrial identification by
photograph will be set aside only if the
identification procedure was so
impermissibly suggestive as to give rise
to a substantial likelihood of
misidentification. As this Court has
acknowledged, the admissibility of
identification evidence is governed by a
two-step analysis.1
Initially, a determination must be made
as to whether the identification
procedure was impermissibly suggestive.
Next, the court must determine whether,
under the totality of the circumstances,
the suggestiveness leads to a
substantial likelihood of irreparable
misidentification. See, United States v.
Shaw, 894 F.2d 689, 692 (5th Cir.1990).
Hernandez:
The
district court found that the procedures
employed by the authorities in showing a
single photograph of the suspect to
Hernandez were suggestive, but not
impermissibly so.2
Even if we were to assume, however, that
the procedures utilized were, in fact,
impermissibly suggestive, after
examining the totality of the
circumstances we cannot conclude that a
substantial likelihood of
misidentification exists.
In
Manson v. Brathwaite, 432 U.S. 98, 97
S.Ct. 2243, 53 L.Ed.2d 140 (1977), the
Supreme Court indicated that "reliability
is the linchpin" when examining the
totality of the circumstances to "determin[e]
the admissibility of identification
testimony." Id. at 114, 97 S.Ct. at
2253. Even an impermissibly suggestive
identification procedure does not
violate due process so long as the
identification possesses sufficient
aspects of reliability. The Supreme
Court has set forth several factors to
be considered when reviewing the
reliability of a pre-trial
identification. These factors include
(1) the opportunity
of the witness to view the criminal, (2)
the witness's degree of attention, (3)
the accuracy of the description, (4) the
witness's level of certainty (5) the
elapsed time between the crime and the
identification, and (6) the corrupting
influence of the suggestive
identification itself.
Neil
v. Biggers, 409 U.S. 188, 93 S.Ct. 375,
34 L.Ed.2d 401 (1972); see also United
States v. Atkins, 698 F.2d 711, 713 (5th
Cir.1983).
In the
instant case, the district court did not
err by concluding that these factors
culminate in a finding of reliability.
The district court properly considered
the findings of fact made by the state
district court and relied upon by the
Texas Court of Criminal Appeals. These
findings are entitled to a presumption
of correctness which has not been
rebutted by the petitioner in the
instant case. See Sumner v. Mata, 455
U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480
(1982).3
The
district court, applying the Supreme
Court's analysis from Biggers,
ultimately concluded that, under the
totality of the circumstances, there was
no substantial likelihood of
misidentification. Based on our
examination of the record and the
district court's application of the
Biggers factors, we conclude that the
district court did not err in its
assessment of the totality of the
circumstances.
The
district court realized that Hernandez
was approximately fifteen feet from the
suspect and that Hernandez testified
that he had about fourteen seconds
during which he was looking directly at
the assailant. Based on this testimony,
we cannot say that the district court
erred by concluding that Hernandez had
ample time to get a clear view of the
suspect. This is especially true where,
although the shooting took place after
dark, the headlights and emergency
lights of the patrol car were on and the
cars were positioned so that the entire
left side of the assailant's car was
illuminated.
The
district court also agreed with the
state court's finding that Hernandez
could be expected to pay a higher degree
of attention to details than a
passer-by. Considering that Hernandez,
although a civilian, had received
special army training in spotting and
identifying enemy aircraft and had been
riding with police officers for several
years, we are in agreement with the
district court's assessment of Hernandez'
powers of observation and recall.
Similarly, we see no reason to disturb
the district court's assessment of the
accuracy of the description and
Hernandez' level of certainty.4
The federal district court based its
conclusion that the description was
accurate on findings relied on by the
Texas Court of Criminal Appeals.
District Court Opinion at 12. These
findings by the district court are
further supported by the following
language by the Texas Court of Criminal
Appeals:
We find that
Hernandez' special training in the army
permitted him to make a very accurate
identification of appellant. The
lighting was very good; there is not
indication from the record that
Hernandez' description of appellant was
anything but accurate. There were no
distractions and Hernandez, who had been
riding with police officers for several
years, could be expected to observe the
suspect with more precision than a lay
person.
Herrera v.
State, 682 S.W.2d 313, 319 (Tex.Crim.App.1984).
Finally, the district court noted that
only hours had passed between the
incident and Hernandez' first
description of the gunman. Only a few
days later, Hernandez positively
identified Herrera
as the gunman from a photograph. The
passage of time between the shooting and
the various identifications does not, as
the district court correctly concluded,
undermine the reliability of the
identification.
An
examination of the Biggers factors,
indicates that any suggestiveness in the
procedures employed in obtaining
Hernandez's identification of
Herrera was
outweighed by the reliability of that
identification. As the district court
noted, "while identification arising
from single photograph displays are to
be viewed with suspicion, there are
sufficient indicia of reliability to
find that, considering the totality of
the circumstances, the showing of the
photograph did not create a substantial
likelihood of misidentification."
District Court Opinion at 13. In light
of the record in the instant case, we
cannot conclude that the district court
erred in making this assessment. No due
process violation has been demonstrated;
the identification evidence was properly
before the jury.
Carrisalez:
Herrera attacks
the district court's refusal to exclude
Officer Carrisalez' statement of
identification on two grounds. First,
Herrera argues
that the procedures were impermissibly
suggestive and created a substantial
likelihood of misidentification. Second,
Herrera argues
that the statement of identification was
improperly admitted under the dying
declaration exception to the hearsay
rule. We address these contentions in
turn.
The
district court concluded that, under the
circumstances, the identification
procedures utilized by the state
officials were not impermissibly
suggestive. Based on the record in the
instant case, we cannot conclude that
the district court erred. While the
showing of a single photograph to the
officer while he was in a hospital bed
is unquestionably suggestive, in light
of the exigent circumstances present in
the instant case, the procedure was not
impermissibly suggestive.
In
Stovall v. Denno, 388 U.S. 293, 87 S.Ct.
1967, 18 L.Ed.2d 1199 (1967), the
Supreme Court indicated that all of the
circumstances must be considered when
examining whether the action taken
violates the suspect's constitutional
rights. In Stovall, the Supreme Court
held that transporting a defendant to a
hospital to conduct a one-person lineup
was not impermissibly suggestive when
considered in light of all the
circumstances. Like the circumstances in
the instant case, the witness was in the
hospital and in serious condition.
Further, the perpetrator was known to be
armed and still at large; the
authorities were faced with the need to
apprehend the suspect as quickly as
possible.
Additionally, in the instant case, the
totality of the circumstances points to
a finding of reliability. As the Texas
Court of Criminal Appeals noted, there
was no indication that the police
exerted any pressure on Carrisalez or in
any way indicated that the subject of
the photo was in custody. Further, the
nurse testified that, upon viewing the
photo, Carrisalez became agitated and
remained so even after the officials
left. See Herrera
v. State, 682 S.W.2d at 319. When making
the identification, Carrisalez was alert;
he had not been given sedatives for 22
hours prior to the showing. Finally,
Carrisalez had sufficient time to view
the attacker at the time of the shooting.
Considering the exigent circumstances
present in the instant case, the
district court did not err by concluding
that, although suggestive, the
procedures employed were not
impermissibly so. However, even if we
were to conclude that the district court
erred in that regard, the totality of
the circumstances indicates that the
identification by Carrisalez was
reliable and did not offend due process.
Similarly, we conclude that the district
court did not err by denying
Herrera's
challenge to the admission of the
identification testimony as a dying
declaration. Herrera's
argument that the statement should have
been excluded is based on his assertion
that the state failed to lay the proper
predicate for its admission under what
is now Tex.R.Crim.Evid. 804(b)(2).5
The
district court properly denied relief on
this ground, noting that this Circuit
resists challenges to evidentiary
matters by collateral habeas corpus
review. As we have stated before, the
"mere violation of evidentiary rules by
the state trial court does not in itself
invoke habeas corpus relief, but only
where the violation of the state's
evidentiary rules results in a denial of
fundamental fairness should habeas be
granted." Anderson v. Maggio, 555 F.2d
447, 451 (5th Cir.1977); see also Woods
v. Estelle, 547 F.2d 269, 271 (5th
Cir.), cert. denied, 434 U.S. 902, 98
S.Ct. 297, 54 L.Ed.2d 188 (1977).
In the
instant case, even if we were to
reevaluate a state evidentiary finding,
the result would be no different since
there is no indication that material,
fundamental error has been made. In
light of the record in the instant case,
considerations of fundamental fairness
require us to hold that the district
court has not committed reversible
error. The State's case hinged on
neither Hernandez nor Carrisalez
identification. Substantial other
evidence exists to support the verdict6
and ensure that considerations of
fundamental fairness have been served.
Any error in the admission of Carrisalez
statement was harmless.
IV.
CONCLUSION
The
district court did not err in denying
habeas relief. For the reasons stated
herein, we affirm, and any existent stay
of execution heretofore issued by the
district court is vacated.
We agree with the
district court's conclusion that the
identification procedure was suggestive.
Because of our conclusion as to the
totality of the circumstances, we need
not determine whether the district court
erred in concluding that, although the
procedure employed was suggestive, it
was not impermissibly suggestive.
Without ruling on the issue, however, we
do note that the following occurrences,
as outlined by the district court,
present extreme circumstances, and we
take this opportunity to reiterate that
the showing of a single photograph is an
inherently suggestive method of
identification
Only hours after the
shooting had occurred [Hernandez] was
unable to identify Petitioner from a
photographic display consisting of six
pictures. He did, however, choose three
pictures from the display, one of which
was Petitioner. What occurred between
this initial uncertainty and the
eventual certitude Hernandez expressed
at the second photographic display, the
live lineup, and the trial was the
display to Hernandez of Petitioner's
picture uncomplicated by any
accompanying array.
Under normal
circumstances, this Court would not
hesitate [sic] to find this procedure
impermissibly suggestive. The Supreme
Court and this Circuit have repeatedly
condemned the showing of a single
photograph as one of the most suggestive
methods of identification. ... However,
because of the circumstances existing at
the time the single photograph was shown,
it cannot be said that this procedure
was impermissible. [T]he Supreme Court
[has] justified a suggestive
identification procedure [where a
serious felony has been committed, the
perpetrator is at large, and the
officials needed to act swiftly.]
[In the instant case,
it] was crucial for the law enforcement
officers to act quickly. Moreover, there
is no indication that the police did or
said anything suggestive while showing
the picture to Hernandez. Granted this
procedure is less than ideal, but under
the circumstances the Court does not
find it impermissibly suggestive.
The determination of
whether the pretrial identification
procedures utilized in the instant case
violated Herrera's
due process rights is a mixed question
of law and fact. However, as the
district court correctly noted, the
questions of fact which underlie the
ultimate conclusion as to the
constitutionality of the procedures come
within the purview of Sec. 2254 and are
entitled to the statutory presumption of
correctness
The district court
noted that there was no indication from
the record that Hernandez was unsure of
his identification. This statement by
the district court is further supported
by Hernandez's testimony that, when he
chose Herrera
from the five man lineup on October 24,
he was absolutely certain of his choice
and had recognized
Herrera as the gunman as soon as
he saw him
In order to be
admissible under the dying declaration
exception to the rule against hearsay,
the statement must meet several
requirements including being made while
the declarant is conscious of impending
death and believes he has no hope of
recovery. The state court found that
this requirement had been met, but
Herrera
challenges this finding
For example, both a
letter written by
Herrera on the back of several
envelopes in which he essentially admits
to the killing of both officers and a
positive identification of
Herrera's car
which was streaked with blood matching
Officer Rucker's blood type were
admitted to the jury. See
Herrera v.
State, 682 S.W.2d at 320 for a more
complete discussion of the evidence
admitted at trial
954 F.2d 1029
Leonel Torres
HERRERA, Petitioner-Appellee, v.
James A. COLLINS, Director, Texas
Department of Criminal
Justice, Institutional Division,
Respondent-Appellant.
No. 92-2114.
United States Court
of Appeals, Fifth Circuit.
Feb. 18, 1992.
Appeal from the United States
District Court for the Southern
District of Texas.
Before KING, DAVIS and JONES,
Circuit Judges.
W.
EUGENE DAVIS, Circuit Judge:
James A. Collins, Director, Texas
Department of Criminal Justice,
appeals the district court's order
staying the execution of Leonel
Torres Herrera. Herrera's execution
is scheduled for February 19, 1992,
between midnight and dawn.
I.
The district court's thorough
memorandum opinion and order of
February 17 outlines in detail the
critical steps which have been taken
in this case. In summary, Herrera
was sentenced to death on January
21, 1982, following his conviction
for capital murder. The Texas Court
of Criminal Appeals affirmed
petitioner's conviction and death
sentence, Herrera v. State, 682 S.W.2d
313 (Tex.Crim.App.1984) (en banc).
The United States Supreme Court
denied certiorari, Herrera v. Texas,
471 U.S. 1131, 105 S.Ct. 2665, 86
L.Ed.2d 282 (1985). Petitioner filed
a petition for writ of habeas corpus
in the 197th District Court of
Cameron County, Texas. The
convicting court recommended that
relief be denied, and, in August
1985, the Texas Court of Criminal
Appeals denied relief. Ex parte
Herrera, Application #
12,848-02-Texas Criminal Appeals
1985. Thereafter, on August 7, 1985,
Herrera filed his first federal
petition for habeas corpus, and the
district court stayed Herrera's
scheduled execution. In October
1989, the federal district court
rejected Herrera's habeas petition
and dissolved the stay of execution.
Herrera appealed that judgment to
this court. On June 25, 1990, we
affirmed the district court judgment
and vacated Herrera's stay of
execution, Herrera v. Collins, 904
F.2d 944 (5th Cir.1990). The Supreme
Court denied certiorari, Herrera v.
Collins, --- U.S. ----, 111 S.Ct.
307, 112 L.Ed.2d 260 (1990).
Herrera filed his second application
for state writ of habeas corpus on
December 12, 1990. On January 14,
1991, the trial court withdrew an
earlier order, entered findings of
fact and conclusions of law, and
denied habeas relief. The Court of
Criminal Appeals denied relief on
May 29, 1991, on the basis of the
trial court's finding and
conclusions and vacated a stay of
execution, Ex parte Herrera, 819 S.W.2d
528 (Tex.Crim.App.1991).
On
December 17, 1991, Herrera filed a
petition for writ of certiorari in
the United States Supreme Court,
which is still pending. Herrera
filed the instant application for
federal writ of habeas corpus in the
district court on February 16, 1992,
raising five claims for relief.1
The claims that Herrera asserts in
his present petition are not
duplicative of the claims he
asserted in his first petition.
The district court denied all relief
on claims 2, 3, 4 and 5 on grounds
of writ abuse. The court initially
denied petitioner's Brady claim, (which
was included as part of his first
claim) on grounds that insufficient
facts were presented to support this
claim. On reconsideration, the
district court, however, concluded
that sufficient facts were presented
to require a hearing, which it
scheduled for February 21, 1992. The
district court granted a stay of
execution pending that hearing. The
district court also granted
petitioner's motion for a stay of
execution to permit petitioner to
further litigate in state court the
second prong of his first claim--actual
innocence. Alternatively, the court
granted a stay pending rendition of
an opinion by this court in May v.
Collins, No. 91-6273. The district
court also signed a Rule 54(b)
judgment dismissing claims 2-5 and
issued a certificate of probable
cause as to these claims. Collins
filed an appeal from the district
court's order granting a stay of
execution and moved this court for
an order vacating the stay of
execution.
II.
For reasons stated by the district
court, it correctly rejected
petitioner's claims 2, 3, 4 and 5
because the petitioner has clearly
abused the writ as to those claims.
See McCleskey v. Zant, --- U.S.
----, 111 S.Ct. 1454, 113 L.Ed.2d
517 (1991).
On
the Brady prong of petitioner's
first claim, we agree with the
district court's initial conclusion
that petitioner neither proffered
evidence nor alleged particularized
facts that demonstrate that the
state withheld any favorable
evidence from Herrera before his
trial. See Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963). As stated above, the
district court, on reconsideration,
concluded that the pleadings and
affidavits were sufficient to
require a hearing on one issue:
whether the state knew that
petitioner was innocent of the
murder of Officer Carrisalez and
withheld that information from
Herrera before his trial. We are not
persuaded that Herrera's petition,
as amplified by his exhibits, states
specific facts that "point to a
'real possibility of constitutional
error.' " Blackledge v. Allison, 431
U.S. 63, 75 n. 7, 97 S.Ct. 1621,
1630 n. 7, 52 L.Ed.2d 136 (1977). (quoting
Advisory Committee Note to Rule 4,
Rules Governing Habeas Corpus Cases,
28 U.S.C. (1977 Supp.), p. 337).
Herrera never identifies any
specific evidence that he contends
was withheld by the prosecutor
before trial. Instead, he relies on
affidavits and newspaper clippings
to suggest that the prosecutor knew
that Raul Herrera, rather than
Leonel Herrera, committed the
murders. Nothing in any of the
exhibits suggests, however, that the
prosecutor could have known of the
information contained within them at
the time of Herrera's trial.
The newspaper clippings upon which
Herrera relies make no reference at
all to the instant case and do not
refer to police corruption in
connection with drug activity in
South Texas prior to 1985--three
years after Herrera's trial. Further,
they contain nothing to suggest that
anyone who testified at his trial or
any officials in Cameron County,
where Herrera was convicted, have
ever been involved in any wrongdoing.
The affidavit of Raul Herrera, Jr.,
states that he told a police officer
that his father committed the
murders rather than Petitioner, but
he does not say when or to whom this
information was conveyed.
Consequently, Herrera has not pled
with sufficient particularity the
elements of his Brady claim to
require a hearing. Id.
Moreover, the exculpatory evidence
on which Herrera relies is a claim
that someone else, and not he,
committed the offenses of which he
was convicted. The person at whom he
points the finger is his brother,
Raul, now deceased. Particularly in
light of the fact that his brother
allegedly committed the offense in
the car which Petitioner normally
drove, this information clearly was
not only available to the defense,
but was likely more available to the
defense than it was to the
prosecution. "Brady does not oblige
the government to provide the
defendants with evidence that they
could obtain from other sources by
exercising reasonable diligence."
United States v. McKenzie, 768 F.2d
602, 608 (5th Cir.1985) (citation
omitted), cert. denied, 474 U.S.
1086, 106 S.Ct. 861, 88 L.Ed.2d 900
(1986). "When evidence is available
equally to the defense and the
prosecution, the defendants must
bear the responsibility for their
failure to diligently seek its
discovery." Id., citing United
States v. Milstead, 671 F.2d 950,
953 (5th Cir.1982). Herrera's
attempt to couch this claim in terms
of a Brady violation therefore is
disingenuous.
We
therefore turn to the second issue
which the district court concluded
required it to grant a stay of
execution. As a part of his first
claim, Herrera contended that he was
actually innocent of Carrisalez's
murder. Herrera filed a
substantially identical claim in the
state habeas court. In support of
his state habeas claim, Herrera
attached two affidavits. First, he
attached the affidavit of attorney
Hector J. Villareal, who had
represented petitioner's brother,
Raul Herrera, on a charge of
attempted murder. Villareal asserted
that Raul Herrera confessed to him
that Raul, not petitioner, murdered
both Rucker and Carrisalez. Herrera
also submitted the affidavit of
Franco Palacios, one of his brother
Raul's cell mates. Palacios stated
that Raul confessed to him that Raul
had murdered Rucker and Carrisalez.
When Herrera filed his federal
habeas petition, he attached two
additional affidavits. The most
significant affidavit he attached is
the affidavit of his nephew, Raul
Herrera, Jr., the son of Raul
Herrera. Raul Herrera, Jr. stated
that he was with his father on the
date of the murders and that he saw
his father kill both Rucker and
Carrisalez. According to Raul
Herrera, Jr., the petitioner was not
present when the murders occurred.
Raul, Jr. also stated that he told a
police officer what occurred but the
officer told him never to repeat it.
Raul, Jr. did not suggest when this
conversation occurred. Raul, Jr.
stated that no attorney representing
the petitioner had ever asked him
about the events until recently. His
affidavit is dated about two weeks
ago, January 29, 1992. Petitioner
also included the affidavit of an
old schoolmate of the Herrera
brothers, who related that Raul, Sr.
made a confession to him similar to
the one attorney Villareal asserted
that Raul had made.
In
his federal habeas petition, Herrera
asserted that he was entitled to a
hearing on his actual innocence
claim, particularly in light of Raul
Herrera, Jr.'s affidavit. The
district court concluded that
petitioner should have an
opportunity to present the affidavit
of the alleged eye witness, Raul
Herrera, Jr. The district court then
granted the petitioner's stay of
execution and retained jurisdiction
of the petitioner's "actual
innocence" claim until noon,
February 21, 1992. The district
court directed that it would dismiss
that claim without prejudice on
February 21, 1992, provided
petitioner had filed a successive
state habeas petition so that he
could present the additional
evidence to that court.
We
begin our analysis of the propriety
of the district court's stay with
the recent admonition of the Supreme
Court: "A stay of execution pending
disposition of a second or
successive federal habeas petition
should be granted only when there
are 'substantial grounds upon which
relief may be granted.' " Delo v.
Stokes, 495 U.S. 320, 110 S.Ct.
1880, 1881, 109 L.Ed.2d 325, 328
(1990) (quoting Barefoot v. Estelle,
463 U.S. 880, 895, 103 S.Ct. 3383,
3396, 77 L.Ed.2d 1090 (1983)). This
court has held that a court should
consider four factors in deciding
whether to grant a stay of execution:
(1) whether the
movant has made a showing of
likelihood of success on the merits,
(2) whether the movant has made a
showing of irreparable injury if the
stay is not granted, (3) whether the
granting of the stay would
substantially harm the other parties,
and (4) whether the granting of the
stay would serve the public interest.
Byrne v. Roemer, 847 F.2d 1130, 1133
(5th Cir.1988) (quoting Streetman v.
Lynaugh, 835 F.2d 1521, 1524 (5th
Cir.1988)). Although in a non-abuse
context the movant in a capital case
" 'need not always show a
probability of success on the merits,
he must present a substantial case
on the merits when a serious legal
question is involved and show that
the balance of the equities [i.e.,
the other three factors] weighs
heavily in the favor of granting the
stay.' " Celestine v. Butler, 823
F.2d 74, 77 (5th Cir.) (quoting
O'Bryan v. McKaskle, 729 F.2d 991,
993 (5th Cir.1984)), cert. denied,
483 U.S. 1036, 108 S.Ct. 6, 97 L.Ed.2d
796 (1987). However, the Supreme
Court's recent decision in Delo v.
Stokes, makes it clear that, in a
case involving a second or
subsequent petition, the latter
three factors cannot weigh in favor
of a stay in the absence of
substantial legal claims upon which
relief may be granted.
Herrera's claim of "actual innocence"
presents no such substantial claim
for relief. The rule is well
established that claims of newly
discovered evidence, casting doubt
on the petitioner's guilt, are not
cognizable in federal habeas corpus.
See Townsend v. Sain, 372 U.S. 293,
317, 83 S.Ct. 745, 9 L.Ed.2d 770
(1963). Texas has adopted a similar
rule. See Ex parte Binder, 660 S.W.2d
103, 104-106 (Tex.Crim.App.1983) (en
banc). Moreover, the right to
collaterally attack a conviction is
not a right guaranteed by the
Constitution. Pennsylvania v.
Finley, 481 U.S. 551, 107 S.Ct.
1990, 1994, 95 L.Ed.2d 539 (1987).
In
Townsend, the Court held that a
federal habeas court must grant an
evidentiary hearing on an allegation
of newly discovered evidence only
when the evidence "bear[s] upon the
constitutionality of the applicant's
detention; the existence merely of
newly discovered evidence relevant
to the guilt of a state prisoner is
not a ground for relief on federal
habeas corpus." 372 U.S. at 317, 83
S.Ct. at 759. We have recognized the
above statement as the Court's
holding in at least two cases,
Armstead v. Maggio, 720 F.2d 894,
896 (5th Cir.1983) (per curiam) and
Boyd v. Puckett, 905 F.2d 895, 896
(5th Cir.), cert. denied, --- U.S.
----, 111 S.Ct. 526, 112 L.Ed.2d 537
(1990).
Thus, once Herrera's Brady claim is
rejected, Herrera's "actual
innocence" claim does not allege a
ground upon which habeas relief can
be granted. Under Texas law, a claim
of innocence based on newly
discovered evidence is grounds for a
new trial, but such a claim will not
support collateral review. See, e.g.,
Ex parte Binder, 660 S.W.2d at
105-06. Herrera, therefore, has
presented no claim for collateral
relief under Texas law. Consequently,
we can find no legal justification
to permit him to present, in
piecemeal fashion, additional
affidavits to the state court. We
conclude that the district court
erred in granting a stay of
execution for this purpose.
May v. Collins relied upon as an
alternate ground for a stay, is
inapposite. The question in May
concerns whether a finding of fact
by a state habeas court, based upon
affidavits alone, is entitled to the
presumption of correctness. But the
facts at issue in May implicated a
constitutional defect in May's
conviction. No such question is
presented in this case.
III.
The district court issued a
certificate of probable cause (CPC)
with respect to claims 2-5 although
it rejected any relief on these
claims. This certificate implies
that the district court found that
petitioner had made a substantial
showing of the denial of a federal
right with respect to these claims.
Barefoot v. Estelle, 463 U.S. 880,
103 S.Ct. 3383, 77 L.Ed.2d 1090
(1983). Ordinarily a stay of
execution accompanies such a finding,
and we are uncertain whether the
district court inadvertently failed
to grant a stay on these claims.
Because of the ambiguity of the
grant of CPC on claims 2-5 and the
failure to grant a stay, the press
of time requires us to address the
propriety of the district court's
issuance of CPC.
For reasons stated by the district
court, we fully agree that claims 2,
3, 4, and 5 are barred because
petitioner abused the writ. We find
no substantial grounds upon which
relief might be granted on these
claims. Accordingly, we vacate the
certificate of probable cause as
improvidently granted. See Cuevas v.
Collins, 932 F.2d 1078, 1082 (5th
Cir.1991).
In
sum, on claim 1, we conclude that
Herrera has failed to present a
substantial ground upon which relief
might be granted. See Delo v. Stokes,
495 U.S. 320, 110 S.Ct. 1880, 1881,
109 L.Ed.2d 325 (1990). As we stated
above, the petitioner failed to
allege sufficiently particularized
facts to entitle petitioner to
relief on his Brady claim. The
"actual innocence" claim standing
alone does not state a claim upon
which habeas relief can be granted
by either a federal habeas court or
a Texas habeas court. We therefore
find no legal justification to stay
the execution to allow petitioner to
litigate further in state court.
Accordingly, we grant Collins's
motion to vacate the stay of
execution entered by the district
court.
The State's
failure to reveal exculpatory
evidence resulted in the
conviction and sentence of an
innocent person, in violation of
the Sixth, Eighth, and
Fourteenth Amendments.
Petitioner is innocent, another
person has confessed to the
crime, and the Petitioner's
execution would violate the
Eighth and Fourteenth Amendments
Petitioner
was tried and sentenced to death
for the murder of two police
officers by a jury whose members
included a police officer
detective in an office that
investigated the case, in
violation of the Petitioner's
Sixth, Eighth, and Fourteenth
Amendment rights
During trial,
recesses, and juror
deliberations, juror-police
officer Bressler was armed, and
at least one juror noticed; in
addition, and contrary to his
sworn statements during voir
dire, this officer knew one of
the victims. These facts reveal
that Petitioner's conviction and
death sentence occurred in
violation of his Sixth, Eighth,
and Fourteenth Amendment rights
Petitioner's
sentencers were precluded from
considering evidence which
counseled in favor of a sentence
less than death, in violation of
Petitioner's Sixth, Eighth, and
Fourteenth Amendment rights
The trial
judge wrongfully refused to
allow Petitioner to speak at all
during Petitioner's trial and
capital sentencing proceeding,
thereby violating Petitioner's
federal Constitutional rights
