294 F.3d 674 (5th Cir. 2002), 01-50400, Fierro v. Cockrell

Docket Nº:01-50400.
Citation:294 F.3d 674
Party Name:Cesar Roberto FIERRO, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:June 13, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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294 F.3d 674 (5th Cir. 2002)

Cesar Roberto FIERRO, Petitioner-Appellant,


Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 01-50400.

United States Court of Appeals, Fifth Circuit

June 13, 2002

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[Copyrighted Material Omitted]

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Jean Terranova, Melrose, MA, Richard H. Burr, III (argued), Burr & Welch, Houston, TX, for Petitioner-Appellant.

Edward Larry Marshall (argued), Austin, TX, for Respondent-Appellee.

William Aceves, California Western School of Law, San Diego, CA, Nicholas Joseph Trenticosta, Center for Equal Justice, New Orleans, LA, for Human Rights Advocates, Minnesota Advocates for Human Rights and Extradition and Human Rights Committee of American Branch of Intern. Law Ass'n, Amici Curiae.

Sandra Lynn Babcock, Minneapolis, MN, for Government of United Mexican States, Amicus Curiae.

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

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

E. GRADY JOLLY, Circuit Judge:

In 1980, Cesar Roberto Fierro was convicted and sentenced to death for the murder of Nicolas Castanon. The conviction was based, in part, on Fierro's written confession. Before trial, Fierro unsuccessfully sought to suppress the confession on the ground that it was obtained by holding his mother in a Mexican jail until he admitted to the murder. After a direct appeal and after two petitions for post-conviction relief, Fierro filed a third post-conviction petition in Texas state court based on evidence that Detective Al Medrano, the El Paso police officer who obtained the confession from Fierro, lied in his testimony during the suppression hearing. The state habeas court found that Medrano had indeed presented materially false testimony, but the Texas Court of Criminal Appeals denied Fierro's petition because it found the false testimony harmless.1 After receiving authorization from this Court, Fierro then filed a successive petition for a writ of habeas corpus in the Western District of Texas. The district court dismissed the petition because it was time-barred and, alternatively, because the factual predicate for the petition could have been discovered earlier through the exercise of due diligence.

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The question we address here is whether the district court erred in holding that Fierro's successive habeas petition is barred by the one-year statute of limitations under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). We conclude that the petition was filed outside the applicable statute of limitations. We further conclude that Fierro has not demonstrated that equitable tolling of the limitations period is warranted in this case. Accordingly, we affirm the district court's dismissal of Fierro's petition.2


Although the facts of this case have been well documented during the course of the extensive proceedings in state and federal court, some background is required to place the issue before us in context. In 1979, the State of Texas charged petitioner Cesar Roberto Fierro with the murder of Nicolas Castanon, an El Paso taxicab driver, based on the statement of an alleged eyewitness. The eyewitness, Geraldo Olague, told the police that he and Fierro were riding in Castanon's cab when Fierro suddenly shot Castanon in the back of the head. According to Olague, Fierro removed the body from the cab and took Castanon's watch and wallet. Fierro and Olague then drove the cab across the Mexican border and abandoned it in Juarez.

Relying on Olague's statement, El Paso police detective Al Medrano retrieved Fierro from a nearby jail on August 1, 1979 and questioned him. While Fierro was in police custody, he signed a statement in which he confessed to Castanon's murder. Before his trial for capital murder, however, Fierro moved to suppress the statement, arguing that he had confessed involuntarily. According to Fierro's testimony at the suppression hearing, Medrano told Fierro during the interrogation that Mexican police had raided his mother's residence in Juarez that morning and had taken her and Fierro's step-father into custody.3 Fierro also testified that Medrano advised him that the police would detain his mother and step-father in the Juarez jail until he confessed to Castanon's murder. Fierro thus asserted that he confessed to the murder only to secure the release of his mother and step-father.4

To refute Fierro's testimony, Medrano testified at the suppression hearing that he was unaware of the arrest of Fierro's mother in Juarez when he interrogated Fierro.5 Thus, Medrano asserted that he could not have told Fierro about the raid on his mother's house or about her detention in the Juarez jail. Medrano conceded that he met Juarez Police Commandante Jorge Palacios for breakfast on the morning of the raid, but Medrano maintained that Palacios told him only where Fierro could be found.

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Accepting Medrano's account, the trial court rejected Fierro's argument that his confession was involuntary and admitted the confession into evidence at trial. Based on Fierro's confession and Olague's eyewitness testimony, a jury convicted Fierro of Castanon's murder and sentenced him to death in February 1980. On direct appeal, the Texas Court of Criminal Appeals affirmed the trial court's ruling on the voluntariness of Fierro's confession. See Texas v. Fierro, 706 S.W.2d 310, 316 (Tex.Cr.App.1986). Represented by his appellate counsel, Fierro raised the same claim concerning the voluntariness of his confession in a petition for post-conviction relief in state court and in his first federal habeas petition. Relying primarily on the trial court's credibility determinations during the suppression hearing, the state habeas court, the Texas Court of Criminal Appeals, the federal habeas court, and this Court rejected Fierro's claim. See Fierro v. Lynaugh, 879 F.2d 1276 (5th Cir. 1989), cert. denied sub nom Fierro v. Collins, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 776 (1990).

In 1994, Fierro retained new counsel and filed a petition for post-conviction relief in state court based on the discovery of new evidence relating to the voluntariness of his 1979 confession.6 During the evidentiary hearing in the state habeas court, Fierro presented a police report—found in the El Paso police investigative file—that was completed by Detective Medrano on August 1, 1979.7 The report documents a telephone conversation between Medrano and Palacios at 5:00 a.m. that morning in which Palacios "stated that they had raided the house [of Fierro's parents] this morning . . . and had in custody the mother of the suspect, CESAR FIERRO, her name being SOCORRO REYNA, and her common law husband, ALFREDO MURGA." According to the report, Palacios also told Medrano that Fierro was then in custody in an El Paso jail.8

Based on this evidence, the state habeas trial court found that Medrano's testimony at the 1979 suppression hearing "regarding the nature and extent of cooperation between the El Paso police and the Juarez police in this case" was false and that Medrano "did have information that the Defendant's mother and step-father had been taken into custody by the Juarez police with the intent of holding them in order to coerce a confession from the Defendant." The court concluded "[t]hat there is a strong lik[e]lihood that the Defendant's confession was coerced by the actions of the Juarez police and by the knowledge and acq[u]iescence of those actions b[y] Det. Medrano." The court therefore recommended a new trial.

The Texas Court of Criminal Appeals adopted the state habeas court's factual findings and agreed that Fierro's "due process rights were violated by Medrano's perjured testimony." Ex parte Fierro, 934 S.W.2d 370, 371-72 (Tex.Cr.App.1996), cert. denied, 521 U.S. 1122, 117 S.Ct. 2517, 138 L.Ed.2d 1019 (1997). A majority of

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the court nevertheless denied Fierro relief because, "given (Hague's eye-witness testimony and the lack of any real reason to doubt his credibility, 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 an unsuccessful petition for certiorari in the Supreme Court, Fierro filed a motion in this Court on October 20, 1997 seeking a stay of his execution and authorization to file a successive habeas petition. The panel granted the motion on November 11, but Fierro did not file his habeas petition in the district court until February 27, 1998. The district court accepted the...

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