Fierro v. Johnson

• Decision Date: 23 November 1999
• Docket Number: No. 98-50562,98-50562
• Parties: (5th Cir. 1999) CESAR ROBERTO FIERRO, Petitioner-Appellant, v. GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 147

197 F.3d 147 (5th Cir. 1999)

CESAR ROBERTO FIERRO, Petitioner-Appellant, v. GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 98-50562

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

November 23, 1999

Rehearing Denied Dec. 22, 1999.

Jean Terranova (arugued), Silverglate & Good, Boston, MA, Richard H. Burr, III, Burr & Welch, Houston, TX, for Petitioner-Appellant.

Douglas A. Danzeiser (argued), Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Western District of Texas

Before KING, Chief Judge, JOLLY, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Cesar Roberto Fierro, a death row inmate, has been here before. Fierro has been awaiting execution for over nineteen years after having been convicted of capital murder and sentenced to death for the murder of a taxi driver in El Paso, Texas. He has petitioned the federal courts for a writ of habeas corpus three times, and his fourth petition--which we authorized--is now pending in the district court.

Today he comes to our court to challenge the district court's denial of his motion to vacate its earlier judgment denying his petition for habeas relief. Fierro argues that because of the discovery of certain evidence, it is now indisputable that his confession was involuntary and that police officers committed perjury in obtaining his conviction. He argues that the earlier judgment of the federal court denying habeas relief was obtained by fraud on the court and that the judgment should therefore be vacated. For the reasons stated below, we affirm the judgment of the district court refusing to set aside its earlier judgment denying habeas relief.

I

The facts underlying today's appeal have been reported in several published opinions. See Ex Parte Fierro, 934 S.W.2d 370 (Tex. Crim. App. 1996) (en banc); Fierro v. State, 706 S.W.2d 310 (Tex. Crim. App. 1986) (en banc); Fierro v. Lynaugh, 879 F.2d 1276 (5th Cir. 1989). We will not burden the federal reporters with another lengthy recitation. The procedural history of this case, however, requires thorough consideration for our purposes today.

Prior to Fierro's trial for murder in the Texas state court in 1980, Fierro moved the trial court to suppress his confession statement. He argued that the police coerced him into giving the confession by telling him that his parents were in a Mexican jail and that they would remain there until he confessed. The state court held a suppression hearing at which Officer Medrano--the officer who took Fierro's confession--testified. At this hearing, Medrano testified that he did not have any information of Fierro's parents being held in custody. Fierro, 706 S.W.2d at 315. Another officer testified that Fierro was not threatened and that he gave the confession freely. Id. Fierro also testified at the hearing and contradicted the testimony of the two officers with his own version of the facts. Id. at 316. After hearing this testimony, the trial court decided to allow the confession into evidence. The arguments over the confession's voluntariness were also submitted to the jury and rejected. Fierro was convicted and he appealed through the Texas court system. His conviction and sentence were affirmed. The Texas Court of Criminal Appeals explicitly approved of the trial court's determination that Fierro had made his confession voluntarily. Id. at 316.

Fierro then sought a writ of habeas corpus in the state and federal courts. He first filed a pro se petition in the federal district court. The district court refused to grant the petition, and Fierro then unsuccessfully sought relief in the state courts. We affirmed the denial of his second federal petition for the writ in Fierro v. Lynaugh, 879 F.2d 1276 (5th Cir. 1989). In our affirmance, we gave the state court findings of fact their due presumption of correctness as directed by the federal habeas statutory provisions and case law. See Fierro, 879 F.2d at 1279. Fierro then sought certiorari in the Supreme Court. This petition was also denied. Fierro v. Collins, 494 U.S. 1060 (1990). Fierro then filed a third federal habeas petition. We affirmed the dismissal of this petition in an unpublished opinion. Soon thereafter, in 1994, Fierro's attorney found what Fierro now argues is a "smoking gun." Fierro's attorney discovered a "supplemental police report" that "reflected that [Fierro's] parents were in the custody of the Juarez police." Ex Parte Fierro, 934 S.W.2d at 371. Fierro took this "new" evidence to the Texas Court of Criminal Appeals and obtained a ruling ordering the trial court to conduct a hearing and to enter findings of fact and conclusions of law addressing Fierro's allegations of perjury.

After holding a hearing, the state trial court made the following findings of fact:

1) That at the time of eliciting the Defendant's confession, Det. Medrano (now deceased) did have information that the Defendant's mother and stepfather had been taken into custody by the Juarez police with the intent of holding them in order to coerce a confession from the Defendant, contrary to said Det. Medrano's testimony at the pretrial suppression hearing.

2) That the District Attorney's Office did not withhold this Supplemental Offense Report from the attorneys for the Defendant.

3) That Det. Medrano presented false testimony regarding the nature and extent of the cooperation between the El Paso police and the Juarez police in this particular case, as it existed in 1979. There was no evidence produced to show that such practices are still taking place.

See Ex parte Fierro, 934 S.W.2d at 371. The trial judge concluded that Fierro should receive a new trial. The Texas Court of Criminal Appeals disagreed. Although it accepted the trial court's findings of fact, the appellate court denied any relief. The court held, under its harmless error analysis, that "it is more probable than not that the outcome of applicant's trial would have been the same absent the confession." Id. at 376.

After this setback, Fierro again sought relief in federal court. On November 11, 1997, the Fifth Circuit granted Fierro leave to file a successive habeas petition. See 28 U.S.C. 2244(b)(3).¹ Fierro then proceeded to file the petition in the district court.

Along with this successive habeas petition, Fierro also filed a motion requesting that the district court vacate its earlier judgment denying his first habeas petition. In his motion, Fierro argued that the district court had the authority to vacate its earlier judgment under (1) its "inherent equitable powers," (2) Fed. R. Civ. P. 60(b)(5), and (3) Fed. R. Civ. P. 60(b)(6).² The district court denied this motion, relying on our precedent holding that Rule 60(b) motions are to be treated as successive habeas petitions. The district court then concluded that it had no jurisdiction to consider the arguments in this motion because we had not authorized a successive habeas petition on grounds stated in the motion. The successive habeas petition (for which we gave authorization) remains pending in the district court.

After having his motion denied, Fierro sought a Certificate of Appealability ("COA") in our court, hoping to obtain authorization for an appeal of the denial order. On October 20, 1998, we denied the petition for a COA as unnecessary; we instructed Fierro that he did not need to seek a COA to appeal the denial of his motion based on equitable claims.³ We also instructed the parties to brief the following issue:

Whether there exists an equitable remedy, independent of 28 U.S.C. 2244(b), which would allow a federal court to vacate a fraudulently-obtained judgment in a prior federal habeas proceeding.

We have determined, however, that we need not provide an answer to the question of whether the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") preempt our use of inherent powers in the context of a petition for a writ of habeas corpus.⁴ We do not need to answer the question because even if the AEDPA does not foreclose the use of courts' inherent powers to vacate prior judgments, Fierro has not met the standards for vacating a decision due to fraud on the federal courts.

II

We begin our analysis by noting that according to 28 U.S.C. 2244(b)(1), "[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." Fierro argued in a previous habeas petition, as he does now, that his confession was not voluntary and it should not have been admitted at his trial. Fierro's argument has not changed, but he now claims to have new evidence that gives more credence to his previous argument. Thus, the plain language of 2244(b)(1) would bar any ruling in Fierro's favor upon a Rule 60(b) motion if that motion is construed as a "second or successive habeas corpus application."

Our own court and other circuit courts have decided that Rule 60(b) motions should be construed as successive habeas petitions governed by the AEDPA's provisions. See, e.g., United States v. Rich, 141 F.3d 550, 551-52 (5th Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1156 (1999); see also Burris v. Parke, 130 F.3d 782, 783 (7th Cir. 1997) (Easterbrook, J.) ("Appellate courts agree that a post-judgment motion under Fed. R. Civ. P. 60(b) in the district court, or the equivalent motion in the court of appeals--which is to say, a motion to recall the mandate--is a `second or successive' application for purposes of 2244(b)."). In Burris v. Parke, 130 F.3d 782 (7th Cir. 1997), the habeas petitioner asked the Seventh Circuit to recall its mandate based on new testimonial evidence from a neuropsychologist. The court rejected the request:

Burris wants us to recall our mandate to take a step that every court of appeals that has addressed the subject believes forbidden by 2244(b): reassessing old...