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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
 
 
 
 
 

Supreme Court of the United States

 

herrera v. collins

 
 
 
 
 
 

clemency petition

 
 
 
 
 
 

 

Date of Execution:
May 12, 1993
Offender:
Leonel Torres Herrera #702
Last Statement:

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

Leonel Torres Herrera, 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 Leonel Torres Herrera 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.

*****

1

United States v. Henderson, 489 F.2d 802 (5th Cir.1973)

2

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.

District Court Opinion at 9.

3

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

4

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

5

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

6

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.

*****

1

Herrera raises the following claims in the instant habeas petition:

1

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

2

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

3

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

4

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

5

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

 

 

 
 
 
 
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