Herrero v. Davis

IN THE UNITED STATES DISTRICT COURT September 02, 2020

FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

HOUSTON DIVISION

HERMILLO HERRERO, '

'

Petitioner, '

v. ' CIVIL ACTION NO. 19-cv-2027

'

BOBBY LUMPKIN,1 '

Director, Texas Department of '

Criminal Justice, Correctional '

Institutions Division '

'

R espondent. '

MEMORANDUM AND ORDER DENYING

PETITION FOR A WRIT OF HABEAS CORPUS

Texas state inmate Hermillo Herrero has filed a petition for a writ of habeas corpus under

28 U.S.C. § 2254 [Doc. # 1]. Herrero seeks relief from a Harris County conviction for murder that

resulted in a sentence of life imprisonment in the Texas Department of Criminal Justice (“TDCJ”).

The respondent has answered with a motion for summary judgment limited to the question of

whether Herrero filed his federal petition in a timely manner [Doc. # 11]. Herrero has filed a reply

to the motion [Doc. # 20]. After considering all the pleadings, the state court records, and the

applicable law, the Court will grant the respondent’s motion for summary judgment, deny the

motions filed by Herrero, and dismiss this action for the reasons explained below.

1 The previously named Respondent in this action was Lorie Davis. On August 11, 2020, Bobby Lumpkin

succeeded Lorie Davis as Director of the Correctional Institutions Division. Under Rule 25(d)(1) of the

Federal Rules of Civil Procedure, Bobby Lumpkin “is automatically substituted as a party.

1

I. BACKGROUND

Herrero is in custody pursuant to a judgment and sentence of the 179th District Court of

Harris County, Texas, in cause number 90312. State of Texas v. Hermillo Herrero, Jr., CR at 66–

67.2 After his sentencing in 2002, Herrero sought state appellate remedies and filed three state

applications for habeas relief. Due to the procedural posture of this case, federal court review of

the merits of any constitutional claims is not available. The issue now before the Court is whether

Herrero filed his federal petition in a timely manner. Because Herrero argues that his innocence

should forgive strict compliance with the federal filing deadline, the Court will extensively review

the factual basis for his conviction before considering whether he has met the high standards

required to show his innocence.

A. The Crime

In January 1995, nineteen-year-old Carmelia Lugo noticed a roll of carpet in a ditch near

her mother’s home in Houston, Texas. 3 RR 22-23, 39. The wooded residential area was a place

people often dumped trash and abandoned cars. 3 RR 39. Plastic was tightly wrapped around the

heavy carpet and it was tied with rope. 3 RR 33. Over the next couple of days, a smell started

coming from the carpet and Lugo noticed flies swarming around it. 3 RR 23. When Lugo asked

a friend to help her unroll it, “[a] foot fell out [of] the carpet.” 3 RR 24. Inside the carpet the

police found the body of a man later identified as Albert Guajardo (the “victim”).

2 Respondent has filed the state court record on the Court’s electronic filing system, CM/ECF. The Court will

refer to the transcript that contains pretrial motions, trial court orders, jury instructions, and other pleadings

as “CR ___” and the Reporter’s Record including hearings on pretrial motions, jury voir dire, the

guilt/innocence phase, and the penalty phase, cited as “___ RR ___.” The Court will cite to the state post-

conviction actions by their entry in the CM/ECF docket.

2

Police observed unusual characteristics about victim Guajardo’s body. The victim was

wearing socks, but not any shoes. 3 RR 52. Blood did not extend past the victim’s waistline,

which suggested to the police that his throat had been cut while in a sitting position. 3 RR 53.

Only a little blood stained the inside and outside of the carpet. The police were unable to find any

forensic evidence that would help identify the victim’s killer.

Police investigation pieced together some information about the victim’s movements

around the time he was killed. The victim’s wife last saw him when he left their house on January

4, 1995, with a man named Freddie Hernandez. 3 RR 99. The victim’s wife told the police that

the victim had spent time with Hernandez and his friend Herrero the day before that. 3 RR 112,

115.3

Because Herrero had previously been arrested with Hernandez, on January 24, 1995, the

police brought in both men for questioning. 3 RR 68. Their interviews of the two men, however,

were unproductive. The police searched Herrero’s house but did not find anything connecting him

to the murder. 3 RR 69, 97. Even though the police still considered both Hernandez and Herrero

to be suspects in the murder, 3 RR 74, the absence of viable leads lead to the victim’s murder

becoming a cold case in late 1995. 3 RR 73.

In 1995, Herrero was arrested after attempting to sell five kilograms of cocaine to an

undercover police officer. In March 1996, Herrero was sentenced to 168 months for federal

charges of possession with intent to distribute cocaine. United States v. Herrero, 4:95-cv-231-5

(S.D. Tex. 1996). Herrero was subsequently incarcerated in FCI Beaumont.

3 The police also received anonymous tips that a man named “Freddie” had killed the victim. 3 RR 93-95,

103.

3

The investigation into the victim’s murder became active again when the case was assigned

to Assistant District Attorney Kelly Siegler. In a factor common to other cold cases prosecuted by

Sielger, she based the prosecution on testimony from inmates who said that they heard the

defendant confess.4 In January 2001, Herrero was charged with the murder of Guajardo. CR 2.

In April 2002, Herrero stood trial in the 179th Judicial District Court for Harris County, Texas,

under cause number 90312 with the Honorable Judge J. Michael Wilkinson presiding.

The prosecution relied on testimony from two inmates, Jesse Moreno and Rafael

Dominguez, to prove that Herrero committed the murder for which he was charged. Trial counsel5

understood his primary duty was to attack the credibility of those inmates. Trial counsel later

described his approach to the defense: “My trial strategy was to raise reasonable doubt by

questioning the motivations of Moreno and Dominguez as well as to note inconsistencies between

their respective testimonies and the evidence.” [Doc. # 12-21 at 991]. In opening arguments, the

defense focused jurors’ attention on the credibility of the State’s star witness: “We expect the

evidence to show that the State’s case stands or falls on the testimony of Jesse Moreno.” 3 RR 18.

Trial counsel summarized this strategy in closing arguments: the State based its case “upon the

testimony of lying, stealing, beating, assaulting, aggravating dope dealers.” 6 RR 20.

4 Other cases have examined, and criticized, Siegler’s use of inmate testimony in cold cases. Most recently, a

district court granted federal habeas relief in a case prosecuted by Siegler. In that case, Siegler not only

concealed information about her reliance on informants, she instructed inmates to secure information from

Prible, making them agents of the State. Prible v. Davis, H-09-CV-1896, 2020 WL 2563544, at ** 20-40

(S.D. Tex. 2020). At the outset, the Court observes a crucial difference between this case and Prible’s which

merited habeas relief. This case is at a procedural stage which only involves the question of whether Herrero

can overcome the untimeliness of his filing by showing actual innocence. Unlike Prible which criticized

Sielger’s prosecutorial methods after a full evidentiary hearing, stringent rules of procedure limit the depth

and focus of this Court’s review.

5 Attorney Dan Cogdell represented Herrero at trial. The Court will refer to Cogdell as “trial counsel.”

4

B. Trial Testimony: The Inmate Testimony

The prosecution’s case for guilt relied heavily on testimony from inmates who claimed that

Herrero had confessed to the murder. In opening arguments Siegler admitted to jurors that the

inmate testimony “is pretty much the crux of this case.” 3 RR 7. After calling witnesses who

provided general testimony about the circumstances of the murder, the State called inmate Moreno

to link Herrero to the crime.

Moreno had cooperated with federal or state authorities three times in the past. 3 RR 185-

87. In one of the cases, Moreno had received a five-year reduction in his sentence for his

testimony. 3 RR 187. In late 2000, Moreno contacted the prosecutor, Siegler. 3 RR 163. Moreno

knew Siegler because she had called him to testify as an informant in a different murder

prosecution. 3 RR 165-66. Siegler wrote a letter to the judge on Moreno’s behalf because of his

testimony in that case, but he did not receive a sentence reduction for his testimony. 3 RR 167.

Moreno had known both the victim and Herrero before his imprisonment. Moreno met the

victim through Freddie Hernandez (the man with whom the victim’s wife saw him leave). 3 RR

142. Moreno knew Herrero from middle school. 3 RR 145.

Moreno became reacquainted with Herrero when he was transferred to FCI Beaumont in

1999. 3 RR 147. Moreno testified that Herrero was the leader of a loose group of inmates from

Houston who called themselves the “All Houston Group.” 3 RR 149-52. Moreno and Herrero

became “pretty close” and “hung out, went out and did things together.” 3 RR 150-51.

Moreno testified that Herrero confessed to the murder in December 1999. 3 RR 172-73.

Before that point, Moreno had heard a few things about the murder: “I heard [the victim] was

dumped in a rug, and I heard something about him getting his throat cut, but I didn't know too

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much about it.” 4 RR 9. Moreno, however, testified that Herrero admitted to the murder during a

meeting Herrero had called because of rising tensions in the prison. 3 RR 173. As the men were

telling “war stories and stuff we had [done] in the past,” 3 RR 174, Herrera confessed to having

murdered the victim. 3 RR 175. Moreno initially did not believe him. 33 RR 175. Herrero then

provided specific details about the killing.

Herrero told Moreno that he “and a buddy of his got off work one day” and went to a club

“in a work van.” 3 RR 176.6 When Herrero entered the club, he “[r]an into [the victim] at the

bar” and they “started talking.” 3 RR 177. Herrero did not like the victim who “owed him some

money for some drugs” for “about a year or so” and “said he wasn't going to pay him.” 3 RR 176.

Moreno testified that the victim owed “between 20 and 30,000. I’m not sure.” 3 RR 181. As the

two men “started talking and drinking” Herrero saw “the opportunity to get him for what he owed

him. So before the club closed, he invited him to go . . . to some girls’ house.” 3 R 176. Herrero,

his friend, and the victim all got in the van. The victim “sat in the passenger seat.” 3 RR 178. As

they drove on the freeway “[t]hey were just talking. . . . [The] driver didn’t know what was going

down.” 3 RR 178. When they exited the freeway, Herrero started reminding the victim that he

owed money. 3 RR 178. Before the victim could answer, Herrero “grabbed him from the back

and started to choke him.” 3 RR 178 (emphasis added).7 Herrero ordered the driver: “Pull over

to that dumpster up ahead.” 3 RR 179. As “he’s choking [the victim], [Herrero] let go with one

6 Moreno said that Herrero never disclosed the identity of the other man. 3 RR 177.

7 Forensic evidence would later dispute whether the victim’s corpse bore signs of strangulation. On federal

habeas review, Herrero argues that forensic evidence proves that Moreno’s testimony was false because the

autopsy did not demonstrate that he was strangled. The state habeas court emphasized that Moreno had

testified that Herrero only started to choke the victim: “Moreno’s testimony about [Herrero] starting to choke

[the victim] before releasing his hand to slit [the victim’s] throat does not rise to the level of [Herrero]

asserting he completely choked [the victim] or choked [the victim] to death.” [Doc. # 12-21 at 935].

6

hand, pulled a knife out of his pocket, and slit his throat.” 3 RR 179. The driver “pulled up to the

dumpster . . . put the van in park” and then “took off running, and left the door open and

everything.” 3 RR 179.

Herrero described how he “dragg[ed] [the victim] to the back of the van.” 3 RR 179-80.

When Herrero “noticed [the victim] was still alive, . . . he laid him next to some rolls of carpet that

were in the work van in the back, reached into a tool bag, got a hammer and started hitting him

in the face and killed him.” 3 RR 180. Herrero then “rolled him into the carpet and drug him out

next to the dumpster, and that was it.” 3 RR 180.

Moreno was “kind of shocked,” but Herrero’s attitude was like “[t]hat bitch got what he

deserved.” 3 RR 180. Moreno had never told Herrero that he and the victim “were pretty close.

Not really close, but we did business.” 3 RR 180. Herrero explained that “he got picked up for

[the murder], but [the police] didn’t have no evidence to prove it was him.” 3 RR 181. Herrero

said that, because the victim “bragged a lot,” the police “would never know who it was anyway.”

3 RR 181. After the initial confession, Herrero occasionally “had remarks like, you know, you

would be sitting around playing handball or something and he’d blurt out, Bitch got what he

deserved. And he liked to brag about it.” 3 RR 184.

Moreno’s testimony also described Herrero as a violent and dangerous man. Moreno said

that Herrero “used to brag that he was a hit man, collected money for people and stuff” and was

“down” for “fighting, stabbing, whatever.” 3 RR 183. Despite their friendship, from the beginning

Moreno was concerned about angering Herrero. Moreno testified that was generally concerned

for his safety if other inmates thought he had provided the government with cooperation in the

past. Moreno specifically worried that Herrero would have had him “hit or checked in”–meaning

7

stabbed or placed in administrative segregation–if he thought he had cooperated with authorities

in the past. 3 RR 155-56. Moreno made a fake PSI from his federal sentencing which showed

that he had not cooperated with authorities. 3 RR 154-55. In reality, Moreno had cooperated with

both state and federal authorities. 3 RR 154.

In July 2000, however, Moreno got on Herrero’s bad side after a fight with his cellmate. 3

RR 157-58. After that Herrero acquired a true copy of Moreno’s PSI. 3 RR 159. Moreno testified

that by May 2001, prison officials determined it was no longer safe for Moreno at FCI Beaumont

and transferred him to the Liberty County jail. 3 RR 160-61.

The defense extensively cross-examined Moreno. The defense’s cross examination

emphasized that Moreno’s direct testimony had minimized his cooperation with authorities. In

reality, since his arrest Moreno had provided a significant amount of assistance to state and federal

law enforcement. Trial counsel hammered on discrepancies in various portions of Moreno’s

testimony. Trial counsel’s cross examination forced Moreno to admit that he had lied about

receiving a benefit from Siegler for earlier testimony. 4 RR 48-51, 55-57. The defense solicited

from Moreno that his testimony in that case was similar to Herrero’s: an inmate had bragged to

Moreno about committing a murder. 4 RR 52-53.

Trial counsel elicited that Moreno and the victim were more than just acquaintances. A

month before the murder Moreno “lent [the victim his] $100,000 Mercedes and fronted him 200

or $300,000 worth of cocaine.” 4 RR 85. Trial counsel elicited from Moreno that he had

previously told Siegler a different version of the alleged confession. 4 RR 81-82

The prosecution bolstered Moreno’s testimony through that of another inmate, Rafael

Dominguez. Dominguez expected to receive a letter from Siegler saying that he had cooperated

8

in hopes of receiving a reduction in his federal sentence. 5 RR 9-10. Dominguez knew Moreno,

Freddie Hernandez, and the victim from the neighborhood before his incarceration. 4 RR 112-13.

Dominguez knew of Herrero and would see him at clubs, but they were not friends. 4 RR 114. In

August 1999, Dominguez was sent to FCI Beaumont for 260 months for conspiracy to distribute

cocaine and marijuana. 4 RR 115-116.8 As a member of the All Houston group, Dominguez saw

Herrero every day while in Beaumont. 4 RR 119-20. In March 2000, Dominguez was in the rec

yard with Herrero, Moreno and another inmate, Foreman. 5 RR 11. Dominguez testified that

Herrero confessed:

We were talking about our war stories and stuff, our past crimes we’ve done. And

Foreman, he had just finished telling a story how he had been kidnapped and

tortured. And when he finished, Herrero made the comment of saying, You guys

haven’t put in no real work. And Foreman is like, What do you mean by real work?

And he goes, Do you know [the victim] from the neighborhood? And Foreman’s

like, No, I don’t know him. He’s like, Well, I killed him. And Foreman is like,

Oh, for real? And he’s like, [Dominguez] and [Moreno] know.

* * * *

And then Foreman asked him, Well, what happened? And [Herrero] said that [the

victim] had jacked him out of some weed, and he didn’t want to pay so . . . one

night they caught [the victim and Hernandez] slipping at a club. . . and they started

talking with him and stuff, and they convinced [the victim] to leave with them.

They told him, Let’s go somewhere and keep on partying. . . . And as they were

driving, [Herrero] and [the victim] got into an argument about the money for the

weed. . . . So they started arguing; so [Herrero] grabbed him from behind, pulled

out a knife, and slit his throat. And he told his driver to pull over, and the driver

pulled over and he freaked out and he took off running.

8 As with Moreno, Herrero asked to see Dominguez’s PSI. 4 RR 118. Dominguez created a fake PSI to avoid

having a hit placed on him or being put in administrative segregation.

9

5 RR 11-12. Herrero said that when he “went to pull [the victim] to the back of the van, [the

victim] was still alive; so he reached for a hammer and he beat him to death.” 5 RR 14. Herrero

then “rolled [the victim] in a carpet and threw him out next to a dumpster.” 5 RR 14.9

During another conversation between Dominguez, Herrero, and another inmate, Herrero

said: “You should have seen when I slit his throat. I left him a smile from ear to ear.” 5 RR 19.

Herrero continued: “When you fuck with my money, I’m the devil.” 5 RR 19.

After his indictment, Herrero was “complaining about Moreno. He had snitched on him

about this murder.” 5 RR 20. Herrero “was kind of pissed off” and said that “the cops had picked

him up and questioned him about this murder already and stuff, because he was the last one seen

with him; but he wasn’t worried about it, because they couldn’t break him.” 5 RR 21.

C. Trial Testimony: Forensic Evidence

The prosecution called Dr. Dwayne Arthur Wolf, Deputy Chief Medical Examiner for

Harris County Medical Examiner’s Office to describe the condition of the victim’s body. Dr.

Wolf, however, had not performed the autopsy. Dr. Tommy Brown who had performed the

autopsy was no longer employed by Harris County at the time of trial. 5 RR 64. The defense did

not raise any objection to Dr. Wolf describing the results of the autopsy.

Dr. Wolf described how the victim “had multiple lacerations on the scalp from the right

forehead around the side, right side of the head across the back of the head and the back left side

of the scalp.” 5 RR 65. The cause of death was “[c]utting wounds of the neck” with a “sharp

weapon.” 5 RR 86. The jagged edge of the wound suggested that the perpetrator had sawed at the

9 Another time, after Dominguez told Herrero about a conversation he had with Freddy Hernandez while in

Harris County Jail, Herrero said, “I hope that fat bitch don’t rat on me.” 5 RR 17.

10

victim’s neck with a knife. 5 RR 69. The cut would have produced “a fairly rapid death” because

the “cutting wound of the neck goes completely through the windpipe or the larynx . . . so breathing

would have been ineffective at best.” 5 RR 71. Also, because “the major blood vessels on the

right side of the neck, carotid artery, the jugular vein, were completely transected . . . there would

have been so much bleeding with that that situation would be part of the bleeding to death, in

addition to the inability to breathe and depriving the brain of blood flow.” 5 RR 71. After being

cut the victim would have only lived “a matter of seconds, less than a minute, possibly, or

essentially gasping and/or gurgling.” 5 RR 72, 78. The victim had numerous bruises on his torso

that were consistent with being hit with a round, flat object like the head of a hammer. 5 RR 70.

The autopsy revealed alcohol in the victim’s body, “but it doesn’t seem like it’s very much. But

[Dr. Wolf’s] interpretation is that he had alcohol in his system at the time of death.” 5 RR 79.

Cross-examination highlighted discrepancies between the condition of the victim’s body

and the events described by Moreno and Dominguez. The medical examiner testified that the

victim would not have been able to move about much after suffering the wound to his neck. 5 RR

88. The medical examiner could not tell whether the blows to the head happened before or after

the victim’s throat was cut. 5 RR 88. The medical examiner explicitly testified that there was “no

evidence for strangulation.” 5 RR 89.

D. Trial Testimony: The Defense’s Case and Argument

The defense called one witness, R.H. Sandy Bielstein, a judge of County Court at Law No.

4 in Fort Bend County. 5 RR 93. While in private practice, Bielstein represented Dominguez’s

co-defendant in a federal prosecution. 5 RR 94. He testified from that interaction that Dominguez

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had a bad reputation for truthfulness. 5 RR 97. He testified: “I do not believe Mr. Dominguez is

worthy of belief under oath or not under oath.” 5 RR 57.

The defense’s closing summarized its argument: the jury should decide “if the

[prosecution’s] story is consistent with the facts.” 6 RR 4. This was a case where there “were no

eyewitnesses, there was no confession, there w[ere] no weapons.” 6 RR 5. The defense tried to

turn jurors’ attention to Freddy Hernandez as the possible killer, particularly because the police

had received anonymous phone calls fingering him. 6 RR 11. But the defense’s closing focused

in on Moreno who “was a master manipulator, a convicted dope dealer, a person who wanted his

sentence reduced, a person who testified or cooperated numerous times, and a person who is

inherently [un]reliable.” 6 RR 6. Trial counsel hammered on Moreno’s lies, including the claim

that he had not received a benefit for earlier testimony. 6 RR 17. Trial counsel identified many

areas in which Moreno’s testimony was “inconsistent with the specific details of the killing”: the

victim did not drive his truck to a nightclub that night; Moreno did not mention the plastic and

rope that bound the rug; the body was not left near a dumpster; the victim’s wife had never heard

of Moreno, even though he allegedly lent the victim an expensive car and fronted him $300,000

in cocaine; nothing hinted that Herrero had access to a work van; and the medical examiner’s

testimony was not consistent with Moreno’s account on several other grounds. 6 RR 9-24.

The prosecution bolstered its witnesses’ testimony by acknowledging that, while Moreno

and Dominguez were “bad, despicable people,” they had placed themselves in considerable risk

by testifying. 6 RR 26, 35-36. Much of the prosecutor’s argument was an emotional appeal to the

jurors not to let a cold case end without justice being done. The prosecutor acknowledged that

some discrepancies existed between the inmates’ accounts, 6 RR 35, 39, but noted areas in which

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their testimony was consistent with the facts: the medical examiner testified in a manner that would

support the claim that the victim was sitting when his throat was cut, tugging the victim to the back

of the van could have removed his shoes, and Herrero had been questioned by police. The

prosecutor urged jurors to focus only on the parts of the inmates’ testimony that had a “ring of

truth.” 6 RR 37.

The jury found Herrero guilty.

E. Sentencing and State Court Challenges

The penalty phased focused on Herrero’s numerous other crimes. Specifically, Herrero

stipulated to convictions for aggravated assault, criminal mischief, possession of a controlled

substance, unlawfully carrying a weapon, and conspiracy to possess with intent to distribute

cocaine. 7 RR 5-9. On April 30, 2002, the trial court assessed a $10,000 fine and sentenced

Herrero to life in prison. CR 66-67. In the following years, Herrero availed himself of state

appellate and habeas remedies.

1. Appeal

Herrero’s appeal to the Court of Appeals for the Fourteenth District of Texas challenged

the legal and factual sufficiency of the evidence supporting his conviction. Herrero’s appeal

centered on weaknesses in the prosecution: “(1) the State presented no physical evidence linking

[Herrero] to the crime; (2) the testimony by Moreno and Dominguez regarding [Herrero’s]

confession is factually inconsistent with other testimony; (3) [Herrero] and his wife cooperated

with authorities; and (4) evidence exists to suggest someone else committed the crime.” Herrero

v. State, 124 S.W.3d 827, 832 (Tex. App.-Houston [14th Dist.] 2003, no pet.). After a detailed

review of Herrero’s arguments and the trial evidence, the Court of Appeals affirmed his conviction

13

and found: “The evidence suffices to prove the corpus delicti of murder. Likewise, the evidence

is legally and factually sufficient to sustain [Herrero’s] murder conviction.” Id. at 837. Herrero

did not seek discretionary review in the Texas Court of Criminal Appeals.

2. Habeas Actions

Herrero twice initiated, and twice terminated, state habeas actions. Herrero filed a state

habeas application on January 3, 2005. After the State answered and the trial court designated

issues for resolution, Herrero filed a motion to withdraw the habeas application. Herrero filed a

second application in 2007, but again moved to withdraw that action. On December 31, 2007, the

trial court granted the motion to dismiss the pending application.

On October 1, 2015, Herrero filed a third state habeas application through his current

counsel raising many of the same arguments as in the current lawsuit. The state trial court allowed

significant briefing and factual development, including the submission of affidavits from trial

counsel and the prosecutor. On March 6, 2017, the state habeas court entered extensive findings

of facts and conclusions of law without holding an evidentiary hearing. [Doc. # 12-21 at 925-81].

The state habeas court considered, and rejected with detailed findings, each argument raised in

Herrero’s state application. Additionally, the state habeas court found that Herrero had not shown

that he was actually innocent of the victim’s murder. On June 6, 2018, the Texas Court of Criminal

Appeals denied the third application without a written order.

II. THE FEDERAL PETITION

On June 5, 2019, Herrero filed a federal petition for a writ of habeas corpus through counsel

[Doc. # 1]. The habeas petition raises nine grounds for relief:

1. The State presented perjured testimony through its inmate witnesses.

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2. The State presented, or failed to correct, false testimony about several

important issues, including about the inmates’ testimony and autopsy

results.

3. The State’s opening and closing arguments included false and misleading

testimony.

4. The State suppressed information that would have discredited the inmate

informants’ testimony.

5. The State suppressed information showing that the prosecutor utilized a ring

of informants to manufacture false testimony.

6. The prosecutor engaged in misconduct during jury arguments.

7. Trial counsel provided deficient representation.

8. Appellate counsel provided deficient representation.

9. Herrero is actually innocent.

[Doc. # 1]. While approaching the issues from different constitutional angles, the core of Herrero’s

arguments is that the prosecutor, Kelley Siegler, manufactured evidence and adduced perjured

testimony to prosecute an innocent man. In doing so, Herrero’s petition attacks the two major

categories of evidence against him. First, Herrero picks apart the testimony of the two inmate

witnesses, pointing out differences between their accounts and hammering on inconsistencies with

known evidence. Herrero contends that Siegler manufactured the inmates’ testimony through her

use of a ring of informants to “pin cold cases on defendants confined in FCI Beaumont.” [Doc. #

1 at 4]. Second, Herrero argues that the medical examiner’s testimony was riddled with errors, did

not corroborate the inmate informants’ story, and was irreconcilable with trial evidence. By

marshaling a great amount of evidence to prove these two, and other subsidiary, arguments, the

thrust of Herrero’s petition is that he is an innocent man unfairly prosecuted by the State.

15

Respondent moves for summary judgment [Doc. # 11]. Reserving arguments about other

procedural or substantive defects in Herrero’s claims, Respondent limits the summary judgment

motion to the timeliness of Herrero’s petition. To summarize, Respondent argues that “Herrero’s

petition is barred by limitations pursuant to 28 U.S.C. §2244(d).” [Doc. # 11 at 5]. Herrero has

filed a response, [Doc. # 17], which he has amended, [Doc. # 20].

III. ANALYSIS

The merits of Herrero’s claims are not before the Court at time. The question before the

Court is whether Herrero can show equitable factors that will forgive the untimely filing of his

federal petition.

A. AEDPA Limitations Period

According to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.

L. No. 104-132, 110 Stat. 1214 (1996), all federal habeas corpus petitions filed after April 24,

1996, are subject to a one-year limitations period found in 28 U.S.C. § 2244(d), which provides as

follows:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State

court. The limitation period shall run from the latest of –

(A) the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by

State action in violation of the Constitution or laws of the United

States is removed, if the applicant was prevented from filing by such

State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable

to cases on collateral review; or

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(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

28 U.S.C. § 2244(d)(1). Because the pending petition was filed well after April 24, 1996, the one-

year limitations period clearly applies. See Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir.

1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)).

In this case, the statute of limitations for federal habeas corpus review began to run pursuant

to 28 U.S.C. § 2244(d)(1)(A), at “the date on which the judgment became final by the conclusion

of direct review or the expiration of the time for seeking such review.” The intermediate court of

appeals issued its decision on Dec. 9, 2003. Herrero did not file a Petition for Discretionary

Review (“PDR”) with the Texas Court of Criminal Appeals. Thus, under Rule 68.2(a) of the Texas

Rules of Appellate Procedure, his conviction became final for purposes of federal habeas corpus

review thirty days after the appellate court’s judgment was entered. See Tex. R. App. P. 68.2(a);

Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012). AEDPA allowed Herrero one year from January

8, 2004, to file a timely federal petition for a writ of habeas corpus.

Under 28 U.S.C. § 2244(d)(2), the time during which a “properly filed” application for

state habeas corpus or other collateral review is pending shall not be counted toward the limitations

period. Herrero filed his first state habeas application on January 3, 2005. That application tolled

the limitations period until the trial court dismissed the first habeas action in 2005. The remaining

time on Herrero’s limitations period expired five days later.

Herrero subsequently filed two additional state habeas applications. Because those state

habeas proceedings occurred after the limitations period had already expired, they have no effect

for purposes of tolling under § 2244(d)(2). See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000)

17

(noting that the statute of limitations is not tolled by a state habeas corpus application filed after

the expiration of the limitations period).

Herrero does not dispute that the fact that he filed his petition outside AEDPA’s limitations

period. Herrero argues that this Court should forgive strict application of AEDPA standards

because of equitable considerations. The Supreme Court has held that AEDPA’s one-year

limitations period “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560

U.S. 631, 645 (2010). The exception, however, is available “only ‘in rare and exceptional

circumstances.’” United States v. Riggs, 314 F.3d 796, 800 n. 9 (5th Cir. 2002) (citing Davis v.

Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). The party seeking equitable tolling bears the burden

of demonstrating that equitable tolling is appropriate. United States v. Petty, 530 F.3d 361, 365

(5th Cir. 2008). Herrero raises arguments for equitable tolling in his federal petition and his

response to the summary judgment motion. The Court will discuss those arguments separately.

B. Actual Innocence Arguments in the Petition

In his petition, Herrero anticipated that the State would rely on the AEDPA limitations

period to seek dismissal of his lawsuit [Doc. # 1 at 130]. Herrero’s petition briefly raises two

grounds for equitably tolling. First, Herrero explains that he did not understand that withdrawing

his initial two state habeas applications could impact the federal limitations period. Second,

Herrero suggests that the limitations period should be tolled because he did not receive a full and

fair review of his third habeas application.

Neither of the two arguments in the petition provides an actionable basis for equitable

tolling. Herrero’s argument that he did not understand the consequences of his decisions in state

habeas court is, in essence, an argument that he did not know the law. An inmate’s ignorance of

18

the law does not excuse his failure to file a timely petition. See Felder v. Johnson, 204 F.3d 168,

171-72 (5th Cir. 2000); see also Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002) (noting that

a petitioner’s ignorance or mistake is insufficient to warrant equitable tolling); Barrow v. New

Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (finding that “lack of knowledge of [the]

filing deadlines,” “lack of representation,” “unfamiliarity with the legal process,” illiteracy, and

“ignorance of legal rights” generally do not justify tolling). To the extent that Herrero complains

about the process afforded him in state court, he only points to events that transpired during his

third habeas action. Equitable tolling is unwarranted for events that happened long after the

limitations period has run its course. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000); see

also Villegas v. Johnson, 184 F.3d 467, 472-73 (5th Cir. 1999) (finding that a state petition filed

after the expiration of the limitations period cannot “revive an expired limitation period”). The

arguments in Herrero’s habeas petition do not provide grounds for equitable tolling.

C. Actual Innocence as Grounds for Equitable Tolling

Herrero argues in his response to the summary judgment motion that his actual innocence

should forgive the limitations bar. In McQuiggin v. Perkins, 569 U.S. 383, 386-87(2013), the

Supreme Court held that actual innocence, if proven, serves as a gateway through which a prisoner

may raise § 2254 claims despite expiration of the limitations period. The actual innocence gateway

avoids a “fundamental miscarriage[s] of justice” and “is grounded on the equitable discretion of

habeas courts to see that federal constitutional errors do not result in the incarceration of innocent

persons.” Id. at 392 (internal quotation marks and citation omitted). In doing so, the Perkins Court

19

adopted “the ‘actual innocence’ gateway to federal habeas review applied in Schlup v. Delo, 513

U.S. 298 (1995).” Id. at 386.

Before turning to Herrero’s arguments for equitable tolling, the Court makes several

observations about federal consideration of actual-innocence arguments. First, actual innocence

in this context means “factual innocence.” Bousely v. United States, 523 U.S. 614, 623 (1998).

“A prototypical example of ‘actual innocence’ in a colloquial sense is the case where the State has

convicted the wrong person for the crime.” Sawyer v. Whitley, 505 U.S. 333, 340 (1992). An

inmate cannot show factual innocence by merely alleging an insufficiency of the evidence,

Bousley, 523 U.S. at 623-24, or by relying on “inconsistencies derive[d] from old evidence that

was presented at trial.” Cantu v. Thaler, 632 F.3d 157, 166 (5th Cir. 2011), cert. granted judgment

vacated, 566 U.S. 901 (2012). A petitioner claiming actual innocence must show that he did not

commit the crime.

Second, even in the context of actual-innocence arguments, by the time a habeas litigant

reaches federal court the presumption of innocence has long run its course. See Bosley v. Cain,

409 F.3d 657, 664 (5th Cir. 2005) (“[T]here is no presumption of innocence at a habeas

proceeding.”). A convicted defendant invoking federal habeas jurisdiction “comes before the

habeas court with a strong–and in the vast majority of the cases conclusive–presumption of guilt.”

Schlup, 513 U.S. at 326; see also Herrera, 506 U.S. at 399-400; see also Moore, 534 F.3d at 464.

Thus, the Supreme Court has commented that “tenable actual-innocence gateway pleas are rare.”

Perkins, 569 U.S. at 386; see also Wilkerson v. Cain, 233 F.3d 886, 889 (5th Cir. 2000) (stating

that “a substantial showing of actual innocence is extremely rare”).

20

Third, the law places strict requirements on the evidence which enables an inmate to pass

through the actual-innocence gateway. The Perkins Court “stressed the need to prove a gateway

claim of actual innocence through new and reliable evidence.” Merryman v. Davis, 781 F. App’x

325, 330 (5th Cir. 2019) (emphasis added). The Supreme Court has not provided guidance on

what the modifiers “new” and “reliable” mean in this context. See Hancock v. Davis, 906 F.3d

387, 389 (5th Cir. 2018) (“The Supreme Court has not explicitly defined what constitutes ‘new

reliable evidence’ under the Schlup actual-innocence standard, and there is a circuit split.”). The

circuit courts disagree as to whether “new” evidence must be “newly discovered, previously

unavailable evidence, or, instead, evidence that was available but not presented at trial.” Hancock,

906 F.3d at 389 & n.1; see also Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir. 2006) (“The

courts of appeals disagree as to whether Schlup requires ‘newly discovered’ evidence or merely

‘newly presented’ evidence.”). While the Fifth Circuit has “not decided what affirmatively

constitutes ‘new’ evidence,” various cases “have explained what does not.” Hancock, 906 F.3d at

390. The Fifth Circuit has observed that “[e]vidence does not qualify as ‘new’ . . . if ‘it was always

within the reach of [an inmate’s] personal knowledge or reasonable investigation.’” Id. (quoting

Moore v. Quarterman, 534 F.3d 454, 465 (5th Cir. 2008)); see also Shank v. Vannoy, 2017 WL

6029846, at *2 (5th Cir. 2017) (“Evidence that was available to be presented to the jury at the time

of trial is not now ‘new’ evidence, even if it was not actually presented to the jury.”); Lucas v.

Johnson, 123 F.3d 1069, 1074 (5th Cir. 1998) (stating that evidence that “in its essence and

character, was presented, or available to present, to the trial jury” is not “new” evidence). The

“new evidence” must also be “reliable.” Schlup, 513 U.S. at 324.

21

Fourth, federal jurisprudence not only defines the type of evidence on which an inmate

may base his actual-innocence claim, but also specifies the relationship between the new, reliable

evidence that the evidence presented at trial. To qualify under the miscarriage of justice exception,

evidence must be “‘material, not merely cumulative or impeaching.’” Vega v. Johnson, 149 F.3d

354, 364 (5th Cir. 1998) (quoting Lucas v. Johnson, 132 F.3d 1069, 1076 n. 3 (5th Cir. 1998)); see

also Sawyer v. Whitley, 505 U.S. 333, 349, (1992) (“[L]atter-day evidence brought forward to

impeach a prosecution witness will seldom, if ever, make a clear and convincing showing that no

reasonable juror would have believed the heart of the [witness’s] account.”); Fairman v. Anderson,

188 F.3d 635, 644 (5th Cir. 1999) (“Examples of new, reliable evidence that may establish factual

innocence include exculpatory scientific evidence, credible declarations of guilt by another,

trustworthy eyewitness accounts, and certain physical evidence.”). An inmate “must identify

evidence that affirmatively demonstrates his innocence.” Phillips v. Ferguson, 182 F.3d 769, 774

(10th Cir. 1999).

Fifth, actual-innocence arguments do not exist independent from other tenets of habeas

jurisprudence. For instance, one consequence of the federal exhaustion requirement is that many

actual-innocence arguments have already passed through state court. When, as in this case, a state

court has issued factual findings “a determination of a factual issue made by a State court shall be

presumed to be correct.” 28 U.S.C. § 2254(e)(1); see Berry v. Montgomery, 757 F. App’x 557. 560

(9th Cir. 2018) (applying AEDPA deference in adjudicating an actual-innocence argument);

Sharpe v. Bell, 593 372, 378 (4th Cir. 2010) (same); see also Burton v. Stephens, 543 F. App’x

451, 458 (5th Cir. 2013) (applying AEDPA deference to a substantive actual-innocence claim).

22

This Court cannot “substitute [its] own judgment for the state court’s credibility determinations

[or] disregard the fact that the state courts soundly assessed [an inmate’s] contentions.” Sharpe,

593 F.3d at 375.

Sixth, a court’s review of actual innocence encompasses a holistic view of all evidence

amassed throughout the years. See House v. Bell, 547 U.S. 518, 538 (2006) (“Schlup makes plain

that the habeas court must consider all the evidence, old and new, incriminating and exculpatory,

without regard to whether it would necessarily be admitted under rules of admissibility that would

govern at trial.”) (internal quotation marks omitted). Thus, “the inquiry requires the federal court

to assess how reasonable jurors would react to the overall, newly supplemented record.” Id. This

review then requires a petitioner to “show that it is more likely than not that no reasonable juror

would have convicted him in the light of new evidence.’” Perkins, 569 U.S. at 399 (quotation

omitted). The Supreme Court has explained that “[t]he gateway should open only when a petition

presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of

the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.’”

Perkins, 569 U.S. at 401 (quoting Schlup, 513 U.S. at 316); see also Merryman, 781 F. App’x at

328-29.

To summarize, an inmate showing actual innocence faces high hurdles, made even more

difficult because of traditional habeas principles, in showing that “(1) the evidence is newly

discovered and was unknown to the defendant at the time of the trial; (2) the defendant’s failure to

detect the evidence was not due to a lack of diligence; (3) the evidence is material, not merely

23

cumulative or impeaching; and (4) the evidence would probably produce acquittal at a new trial.”

United States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996).

D. Herrero’s Actual Innocence Arguments

Herrero’s federal petition relies on a voluminous amount of evidence. Herrero’s evidence

supports arguments which attack nearly every facet of the State’s case against him. While Herrero

uses the evidence to support various constitutional claims, his Amended Response to Respondent’s

Motion for Summary Judgment focuses his arguments on a plea for equitable tolling based on

actual innocence. Unlike other actual-innocence arguments, Herrero does not rely on one new

item of evidence, or even challenge one element of the case against him. Instead, Herrero’s actual-

innocence arguments encompass various new defensive theories which, when considered in

unison, attack almost every portion of the prosecution against him. In doing so, Herrero provides

almost no evidence that could independently prove that he did not kill the victim. Instead, Herrero

pieces together evidence like a puzzle, the whole of which is incomplete without each individual

part. The weight of Herrero’s argument depends on the collective integrity of Herrero’s evidence,

and assembled in a manner consistent with his own view of the case. In that respect, Herrero’s

arguments do not prove innocence, but seek to relitigate the case against him. As the state habeas

court observed, Herrero’s “claim of actual innocence is actually an attack on the sufficiency of the

evidence.” [Doc. # 12-21 at 959].

This Court’s role is not to retry Herrero’s capital-murder trial. Herrero stands as one legally

and lawfully convicted of an extremely serious crime. Herrero has had opportunities to litigate his

constitutional claims in state court. The state courts have rejected his substantive claims with

24

detailed findings and analysis. But at this specific stage, this Court’s narrow role is only to decide

whether Herrero’s evidence is of the kind and nature that will allow him to litigate a federal habeas

petition. In doing so, the Court will collapse the arguments in Herrero’s Amended Response into

three categories: (1) direct evidence that someone else committed the crime for which Herrero was

convicted; (2) forensic evidence challenging the medical testimony from trial; and (3) evidence

undercutting the testimony of the State’s witnesses. While Herrero argues that this evidence

operates in synchronous fashion, each category plays a distinct part in his argument and must be

analyzed separately before considering the impact of the whole.

1. Direct Evidence of Innocence

Among the most powerful categories of actual innocence are “‘credible declarations of

guilt by another.’” Reed v. Stephens, 739 F.3d at 767 (quoting Fairman, 188 F.3d at 644). In his

petition, Herrero raises his actual innocence as a substantive ground for relief [Doc. # 1 at 112].

Among other evidence supporting that argument, Herrero presents an affidavit from Jaime Elizalde

who signed an affidavit before his execution for capital murder claiming responsibility for victim

Albert Guajardo’s murder [Doc. # 1 at 115-16].10

Elizalde had been convicted of capital murder and sentenced to death for the killing of

Marcos Vasquez and Juan Guajardo11 on November 5, 1994. While facing an imminent execution

date in 2006, an attorney for Herrero visited Elizalde and secured an affidavit in which he claimed

10 Herrero bases a substantive actual innocence claim on Elizalde’s affidavit, but curiously does not rely on it

for equitable tolling purposes. Because confessions of guilt occupy an important place in actual innocence

arguments, in the interest of justice the Court will consider whether the Elizalde affidavit should forgive a

strict application of AEDPA’s limitations period.

11 The record does not identify whether the victim in this case and the victim in Elizalde’s case were related.

25

responsibility for killing the victim in this case.12 Elizalde soon thereafter filed a petition for

clemency based on his alleged intellectual disability. The State asked the trial court to postpone

Elizalde’s execution date to allow time to investigate the affidavit and to investigate whether he

suffered from intellectual disability. The trial court modified the execution date and ordered a

hearing on the affidavit.

According to Elizalde’s affidavit, he and a friend took the victim to a house outside of

Houston. There, Elizalde claimed he took a hunting knife and some nylon cloth string, snuck up

behind the victim, and strangled him until he ceased struggling. Elizalde asserted he then grabbed

a black jack and hit him with the flat bottom of it. When the victim began twitching on the ground,

Elizalde averred, he slit his throat and Elizalde then rolled the victim’s body in carpet before

burning his pager and shoes.13

Elizalde, however, would not testify to those facts in court. During a video hearing on

January 19, 2006, Elizalde asserted his Fifth Amendment rights when asked about the inculpatory

affidavit.

Herrero relied on the Elizalde affidavit in his third habeas action to argue that he was

innocent of victim Guajardo’s murder. The state habeas court found that the Elizalde affidavit did

not prove Herrero’s innocence. The state habeas court specifically found that “a purported

12 A newspaper article at the time reported the perspective of Elizalde’s attorney on the circumstances

surrounding the affidavit: “My client allegedly gave this affidavit to the defense team of Hermilio Herrero

without any advice from his own legal counsel about the consequences. . . .” [Doc. # 4, Exhibit 39, Cynthia

Leonor Garza, Death row answers may not be what court hopes to hear, Houston Chronicle, Jan. 13, 2006].

13 Herrero did not include a copy of Elizalde’s affidavit with his other habeas exhibits.

26

‘confession’ from a deceased death row inmate who chose to remain silent rather than face cross-

examination and who claimed to be intellectually disabled does not meet the high standard to

prove. . . actual innocence.” [Doc. # 12-21 at 961].14

This Court likewise finds that Elizalde’s affidavit does not amount to new reliable evidence

that would show Herrero’s innocence. As an initial matter, Elizalde’s affidavit is not reliable

because it is inconsistent with Herrero’s other arguments. For example, as the Court will discuss

below, Herrero relies on forensic evidence to argue that the victim was not strangled before his

throat was cut. Elizalde claims he strangled the victim with a nylon rope before slitting his throat

with a hunting knife. In that regard, Elizalde’s affidavit contradicts the forensic evidence on which

Herrero bases his actual-innocence arguments.

Herrero does not provide the full context of the Elizalde affidavit. A newspaper article

from that time provides additional information about Elizalde’s purported confession. Elizalde

told a newspaper reporter that he wanted to confess to the murder for which Herrero was convicted

because “I know what it feels like being here for what I didn’t do.”15 Elizalde’s confession,

however, was self-serving. The reliability of Elizalde’s confession is lessened because he links it

to his own actual-innocence allegation: he claimed that the victim in this case was the actual

murderer in his own. Elizalde told a newspaper reporter that “he had been accused of the murder

14 The state habeas court considered the Elizalde affidavit under the stricter standard for substantive actual-

innocence claims in Herrera v. Collins, 506 U.S. 390 (1993). [Doc. # 12-21 at 960]. Herrero has not argued

that the differences between the Herrera and Schlup standards would make any difference in how the Court

considers the state court findings.

15 Cynthia Leonor Garza, “Death row answers may not be what court hopes to hear,” Houston Chronicle, Jan.

13, 2006 [Doc. # 4, Exhibit 39].

27

which he knew [the victim in the Herrero case] had committed.”16 The self-serving nature of

Elizalde’s affidavit lessens its reliability.

Further, the State of Texas stayed Elizalde’s execution to investigate whether he murdered

the victim in this case. Elizalde, however, would not repeat his confession when subjected to the

rigors of cross-examination. Despite providing voluminous and detailed evidence supporting the

other threads of his actual-innocence arguments, Herrero has not provided any evidence to

corroborate his claim that Elizalde was the actual killer. Simply, Elizalde’s affidavit is not “‘a

credible declaration[] of guilt by another.’” Reed, 739 F.3d at 767 (quoting Fairman, 188 F.3d at

644).

AEDPA requires strong deference to the state court’s finding that the Elizalde affidavit

“does not meet the high standard to prove. . . actual innocence.” [Doc. # 12-21 at 961]. The

Court’s review confirms that Elizalde’s affidavit does not constitute new reliable evidence of

innocence to forgive AEDPA’s limitations period.

2. Forensic Evidence

Herrero also argues that he is entitled to equitable tolling because forensic evidence proves

his innocence. The autopsy of the victim’s body was conducted by Dr. Tommy Brown, then an

employee of the Harris County Medical Examiner’s Office. By the time of trial, Dr. Brown was

no longer employed by that office. Dr. Wolf, therefore, testified at trial about the data obtained

from the autopsy performed by Dr. Brown. The State used Dr. Wolf’s conclusions to corroborate

16 Id.

28

certain aspects of the jailhouse snitches’ testimony, such as that the victim could have been seated

when Herrero cut his throat.

In his third application for state habeas relief, Herrero relied on a statement he obtained

from Dr. Brown in 2015. Dr. Brown’s statement did not contain any new empirical evidence. Dr.

Brown, in fact, relied exclusively on his “autopsy report and autopsy photographs.” [Doc. # 20,

Exh. 1 at 1]. Dr. Brown came to some conclusions, however, that differed from Dr. Wolf’s

testimony at trial. For instance, Dr. Brown interpreted the autopsy findings to show that the victim

was beaten first, was not choked before his throat was slit, and was likely not sitting when he

suffered the killing wound. Dr. Brown explained that the victim’s injuries would have covered

the area around him with blood. Dr. Brown also opined that the victim was not drinking before his

death (or at least not drinking heavily). [Doc. # 20, Exh. 1 at 4-5]. Herrero uses Dr. Brown’s

affidavit to argue that the jailhouse snitches’ testimony did not reflect the manner in which the

victim had been killed, thus impeaching their credibility.

Dr. Brown’s affidavit, however, is not the type of new and reliable testimony on which an

inmate may base a viable actual-innocence argument. Under Fifth Circuit law, evidence is not

“new” if “it was always within the reach of [the petitioner’s] personal knowledge or reasonable

investigation.” Moore, 534 F.3d at 465 (explaining if the allegation is that trial counsel should

have presented evidence, then evidence was always within reach). Herrero has not identified any

portion of Dr. Brown’s report that relies on recently developed scientific theories; the defense

29

presumably could have secured a similar account from a forensic expert, such as Dr. Brown, at the

time of trial.17 Dr. Brown’s statement, therefore, is not “new” evidence as anticipated by Schlup.

Further, Dr. Brown’s report does not amount to independent evidence of innocence, but

instead serves to undercut the State’s trial testimony. The Supreme Court has stated that

“impeachment evidence provides no basis for finding” actual innocence because “the evidence is

a step removed from evidence pertaining to the crime itself.” Calderon v. Thompson, 523 U.S.

538, 563 (1998).18 The Fifth Circuit has explicitly held that new evidence of actual innocence

must be “material, not merely cumulative or impeaching.” Lucas, 132 F.3d at 1075 n.3; see also

Shank, 2017 WL 6029846, at *2. Dr. Brown’s report only provides a different interpretation of

the evidence underlying the State’s informant’s testimony. The primary thrust of Herrero’s habeas

evidence, therefore, is the impeachment of a State’s witness. Herrero attempts to argue that “Dr.

Brown’s statement does far more than impeach [the State’s witnesses]; it disproves the State’s

entire theory of the crime.” [Doc. # 20 at 7]. But even making that argument, Herrero cannot

sever Dr. Brown’s conclusions from the credibility of trial witnesses. In an subsection entitled,

“Dr. Brown’s analysis proves [the victim] died under completely different circumstances than the

17 In fact, Herrero raises a habeas claim alleging that trial counsel should have called a forensic expert, such as

Dr. Brown who had performed the autopsy, to rebut the State's evidence about the murder. The essence of

that claim is an admission that the facts contained in Dr. Brown’s report were available at the time of trial.

18 While Herrero argues that impeachment evidence may support a claim of actual innocence in some limited

circumstances, those circumstances are not present in this case. Herrero suggests that the Thompson case

disallowed the use of impeachment evidence to support an actual-innocence argument because there was

little evidence of the crime apart from the challenged testimony and the jury accepted the testimony without

reservation. While no evidence showed Herrero’s identity as the killer other than inmate testimony, and little

confirmed their testimony other than the forensic findings, nothing suggests that the jury accepted the

testimony without reservation, particularly given the defense’s zealous attacks on the reliability of their

accounts.

30

State’s theory of the case,” Herrero strips his argument down to its essential thrust, which is not to

prove that he did not commit the crime, but to impeach witnesses: “Dr. Brown’s forensic analysis

therefore refutes the theory of the crime that the State sponsored through Moreno and Dominguez

in order to convict Herrero, and it demonstrates simultaneously that Moreno and Dominguez

fabricated a confession completely at odds with the forensic evidence.” [Doc. # 20 at 10]. Dr.

Brown’s evidence, therefore, does nothing to exculpate Herrero for the murder, except in relation

to the trial evidence.

While Herrero has shown that a trial attorney could have crafted a strong defensive theory

based on Dr. Brown’s statement, he has not shown that it is evidence of the actual innocence

anticipated by Schlup. The Court finds that Herrero is not entitled to equitable tolling based on his

challenge to the forensic testimony presented at trial.

3. Impeachment of Trial Witnesses

The remainder of Herrero’s equitable tolling argument challenges the testimony of the

State’s two star witnesses: Moreno and Dominguez. In doing so, Herrero relies on the following

evidence:

• An affidavit from Nathan Foreman, an inmate who both witnesses said was

present when Herrero confessed. 3 RR 10, 4 RR 121, 5 RR 11. Foreman

said that he only spoke to Herrero once in prison, that there was no “All

Houston Group” led by Herrero, he never heard Herrero confess, and he

was never threatened by Herrero. [Doc. # 20, Exhibit 2].19

• A transcript of an interview habeas counsel had with an inmate named Carl

Walker. Walker said that a ring of informants at the Beaumont prison were

part of a conspiracy to testify falsely to obtain favors, and that they had

specifically manufactured Herrero’s confession to murder [Doc #. 4, Exh.

19 The state habeas court explicitly found that Foreman was not credible. [Doc. # 12-21 at 962].

31

32

33]. Walker later provided an affidavit confirming the statements in the

transcript are correct [Doc. # 20, Exh, 3].

• A police report that the trial court refused to admit into evidence from a man

who lived near where the body was found [Doc. # 20, Exh. 4]. The man

described seeing someone who did not match Herrero’s description

dumping something on the side of the road but did not specially provide

information suggesting that it was the roll of carpet found later.

• Bureau of Prison records obtained by habeas counsel which provide a basis

to argue that inmates did not seek protection from Herrero because they

would testify against him.

• Various documents that were not disclosed to the defense.

• Excerpts of a deposition from the trial prosecutor describing her

involvement in Herrero’s case.

• Excerpts from a post-trial deposition by Dominguez which minimized the

leadership role Herrero played among his peers and treated the Houston

inmates as a less-cohesive group.

• A handwritten statement from Juan Castillas who was allegedly present

when Herrero confessed but who now says that Herrero did not do so.

[Doc. # 20 at 4-5]. Each of these pieces serves one purpose: dismantling the testimony of the

jailhouse snitches who testified against Herrero.

Herrero’s evidence does not satisfy the high expectations of Schlup jurisprudence. As an

initial matter, Herrero argues that his evidence satisfies Schlup’s “new evidence” requirement

because he mostly relies on affidavits that “did not exist at the time of trial” and on BOP records

which were inaccessible “without a federal court order.” [Doc. # 20 at 5]. The Fifth Circuit,

however, has recited the relevant standard: the new impeachment information must have been

“unavailable to [Herrero] or trial counsel at or before trial.” Hancock, 906 F.3d at 390. While

Herrero secured affidavits from various people years after trial, he has not shown that, had trial

counsel pursued the same investigate avenues, he could not have developed the same evidence. In

fact, Herrero raises an ineffective-assistance-of-counsel claim in the instant petition which argues

that trial counsel should have developed similar information before trial and used it to impeach the

State’s witnesses. Herrero has not brought forth any “new” evidence under the requirements set

out in the Fifth Circuit.20

Further, Herrero’s evidence falls short of proving actual innocence. The Supreme Court in

Schlup contemplated that new, reliable evidence of actual innocence would include “exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” 513 U.S. at

324; see also Lucas, 132 F.3d at 1075 n.3 (stating that new evidence of actual innocence must be

“material, not merely cumulative or impeaching”). At its core, Herrero’s evidence does not

independently show that he was not the one who killed the victim. The value of Herrero’s evidence

exists only in relationship to the jailhouse snitches’ overall credibility. As noted by Respondent,

“when one considers the evidence [Herrero] presents abstractly—and without reference to the trial

testimony of any witness—they provide virtually no independent, free-standing evidence of factual

innocence.” [Doc. # 11 at 13]. Taking all Herrero’s evidence together, its importance to the

defense only exists to undermine the credibility of the inmate informers.

Herrero’s evidence “is a step removed from the evidence pertaining to the crime itself.”

Thompson, 523 U.S. at 563; see also Sawyer v. Whitley, 505 U.S. 333, 349 (1992) (stating that

20 As another indication that the information is not “new,” Herrero has not argued that his federal petition his

timely because the information only recently became available to him. If Herrero did not have access to the

evidence, the limitations period would arguably run from when “the factual predicate of the claim or claims

presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1).

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newly discovered impeachment evidence “will seldom, if ever” establish actual innocence”).

Evidence that impeaches the credibility of trial witnesses does not prove actual innocence. While

Herrero produces evidence on which an attorney could base a zealous trial defense, it is not new,

reliable evidence which would forgive the untimely filing of his federal habeas petition.

4. Conclusion of Equitable Tolling

The case against Herrero was not strong. The State based its case on the testimony of two

inmates who had testified as informants in other cases; the defense zealously challenged the

credibility, consistency, and self-interest of those informers. Herrero’s habeas attorney has raised

troubling concerns about the evidence on which the State relied to secure Herrero’s conviction.

Yet federal habeas review exists only within the bounds of weighty jurisprudence and

congressional mandate. Statutory principles require diligence and exigency in availing oneself of

the habeas writ; Herrero sat on his claims for many years.

Herrero argues that innocence forgives his untimely filing, but federal law places strict

limits on how an inmate must prove his innocence in habeas proceedings. The voluminous and

intricate evidence suggests that an eager advocate could have put a much stronger case before

jurors–and one that may have severely undercut the State’s witnesses, but Herrero’s evidence does

not independently show that he is an innocent man. In sum, as the state habeas court found,

Herrero “fails to show newly discovered evidence constituting affirmative evidence of innocence

. . . .” [Doc. # 12-21 at 960]. Herrero’s evidence is insufficient to overcome the consequences of

his late filing.

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The Court is mindful of the effect a dismissal will have on Herrero’s ability to have his

claims heard by a federal court. See Felder v. Johnson, 204 F.3d 168, 173 (5th Cir. 2000).

However, the Fifth Circuit has emphasized that the “strict one-year limitations period” imposed

by Congress for the filing of all habeas corpus petitions is “subject only to the narrowest of

exceptions.” Fierro v. Cockrell, 294 F.3d 674, 684 (5th Cir. 2002). The Court concludes that his

circumstances are not among those “rare and exceptional” conditions which warrant deviation

from the express rules that Congress has provided. See Felder, 204 F.3d at 173. Accordingly,

equitable tolling will not save Herrero’s late-filed claims. The Court therefore concludes that his

pending federal habeas corpus petition is barred by the applicable one-year limitations period.

IV. CERTIFICATE OF APPEALABILITY

Under AEDPA, a prisoner cannot seek appellate review from a lower court’s judgment

without receiving a Certificate of Appealability (“COA”). See 28 U.S.C. § 2253(c). Herrero has

not yet requested that this Court grant him a COA, though this Court can consider the issue sua

sponte. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). “The COA statute

establishes procedural rules and requires a threshold inquiry into whether the circuit court may

entertain an appeal.” Slack v. McDaniel, 529 U.S. 473, 482 (2000). A court may only issue a

COA when “the applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

The Supreme Court has explained the standard for evaluating the propriety of granting a

COA on claims rejected on their merits as follows: “Where a district court has rejected the

constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward:

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The petitioner must demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484; Miller-El, 537 U.S. at

336-38. On the other hand, a district court that has denied habeas relief on procedural grounds

should issue a COA “when the prisoner shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was correct in its procedural ruling. Slack,

529 U.S. at 484; Miller-El, 537 U.S. at 336-38. Unless the prisoner meets the COA standard, “no

appeal would be warranted.” Slack, 529 U.S. at 484.

Having considered Herrero’s arguments, and in light of AEDPA’s standards and

controlling precedent, this Court determines that a COA should not issue.

V. CONCLUSION

Herrero filed his federal petition well outside the one-year limitations period established

by AEDPA. Herrero has not shown that statutory or equitable principles should forgive a strict

application of AEDPA’s timeliness requirements. The Court, therefore, cannot address the merits

of Herrero’s constitutional claims and must dismiss this action.

It is therefore

ORDERED that Respondent’s motion for summary judgment [Doc #. 11] is GRANTED.

It is further

ORDERED that this case is DISMISSED WITH PREJUDICE.

The Court will not issue a Certificate of Appealability.

SIGNED this _2_n_d_ day of _S_e_p_t_e_m_b_e_r__, 2020, at Houston, Texas.

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dh F. ATLAS

SENIOR UNI STATES DISTRICT JUDGE

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