Petition for Writ of Certiorari — Rodolfo Alvarez Medrano, Petitioner v. Texas

Supreme Court briefSep 13, 2023

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No. ___________

RODOLFO MEDRANO,

Petitioner,

STATE OF TEXAS,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE TEXAS COURT OF CRIMINAL APPEALS

PETITION FOR A WRIT OF CERTIORARI

Sheri Lynn Johnson*

Cornell University

216 Myron Taylor Hall

Ithaca, New York 14853

607-227-1304

slj8@cornell.edu

* Attorney for Applicant in Federal

Habeas Corpus Proceedings

James William Marcus**

Capital Punishment Clinic

University of Texas School of Law

727 E. Dean Keeton Street

Austin, Texas 78705

512-232-1475

512-232-9197 (fax)

jmarcus@law.utexas.edu

**Counsel of Record

CAPITAL CASE

QUESTION PRESENTED

Upon his arrest, Petitioner asserted both his right to counsel and his right to

silence, but those assertions were thwarted by a police officer who first told

Petitioner’s wife that the police knew he was not present when the murders were

committed and that he would be allowed to go home to her and their baby if he told

them what he knew, then created two opportunities for her to use that false assurance

to persuade Petitioner to speak. Petitioner’s resulting statement admitted his gang

membership and described both his knowledge of the gang’s planned marijuana

robbery and his own role in supplying guns for that robbery, a robbery that morphed

into an unexpected and fatal confrontation between two gangs while Petitioner was

in his own home. Petitioner’s statement was the only significant evidence implicating

him in the robbery-gone-bad and without it, he could not have been prosecuted for

capital murder. Texas Code of Criminal Procedure 11.071(5)(a)(2) provides for

authorization of a subsequent petition when “by a preponderance of the evidence, but

for a violation of the United States Constitution no rational juror could have found

the applicant guilty beyond a reasonable doubt.” Id. at §5(a)(2). Despite the lack of

any evidence beyond Petitioner’s confession that could have sustained his conviction,

the Texas Court of Criminal Appeals, without explanation, determined that

Petitioner’s subsequent petition “failed to satisfy the requirements of Article 11.071,

§ 5(a),”and dismissed his application “as an abuse of the writ without considering the

merits of the claims.”

Whether under all the circumstances, including an officer’s knowing and

deliberate deployment of Petitioner’s wife to elicit statements from

Petitioner while he was in custody, the falsity of the information the officer

gave her to convey to the petitioner, the strength of the incentive he

proffered to induce the Petitioner to speak, and the fact that similar tactics

were deliberately employed to obtain confessions Petitioner’s codefendants, introduction of the resulting statement Petitioner’s Fifth and

Fourteenth Amendment rights under Miranda v. Arizona, 384 U.S. 436

(1966).

II.

Whether the Texas Court of Criminal Appeals’ determination that the

Petitioner’s subsequent petition failed to satisfy the requirements of Article

11.071, § 5(a)(2) was an adequate and independent state ground precluding

merits review of his claim where that provision authorizes a subsequent

petition when “by a preponderance of the evidence, but for a violation of the

United States Constitution no rational juror could have found the applicant

guilty beyond a reasonable doubt” and the confession whose

constitutionality Petitioner is challenging was the only significant evidence

linking him to the capital murder with which he was charged.

PARTIES TO THE PROCEEDINGS BELOW

All parties appear on the cover page in the case caption.

LIST OF RELATED CASES

State court

Texas v. Rodolfo Medrano, No. CR-0942-03-F, 332nd District Court, Hidalgo County,

Texas (Aug. 27, 2005)

Medrano v. State, No. AP-75,320, 2008 WL 5050076 (Tex. Crim. App. Nov. 26, 2008)

Ex parte Medrano, 532 S.W.3d 395 (Tex. Crim. App. 2017)

Federal Court

Medrano v. Lumpkin, No. 17-cv-00069 (S.D. Tex.)

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDINGS BELOW ............................................................. ii

LIST OF RELATED CASES ......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

INDEX TO APPENDICES ........................................................................................... iv

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1

STATEMENT OF THE CASE....................................................................................... 2

Offense and arrest. .................................................................................... 3

Trial and appeal. ....................................................................................... 9

Initial state postconviction proceedings. ................................................ 13

Federal habeas proceedings and the state subsequent

application. ............................................................................................ 155

REASONS FOR GRANTING THE WRIT .................................................................. 21

Summary reversal is appropriate because the record establishes that police in

Hidalgo County, Texas are deliberately evading this Court’s Fifth Amendment

holdings, and the TCCA refused to address those practices despite having a

readily available procedural vehicle for doing so............................................. 21

Using Mr. Medrano’s Wife to Convey an Inducement to Confess

Constituted Interrogation. ..................................................................... 24

Using Mr. Medrano’s Wife to Convey an Inducement Failed to

Scrupulously Honor His Invocation of the Right to Remain Silent.

................................................................................................................. 30

No valid waiver was obtained. ............................................................... 32

iii

II.

No Adequate and Independent State Ground Bars Review of the Merits of This

Claim. ................................................................................................................ 32

CONCLUSION............................................................................................................. 38

INDEX TO APPENDICES

APPENDIX

Ex parte Medrano, No. WR-78,123-02 (Tex. Crim. App. May 17,

2023)

The Appendix is cited below as “App. X,” with “X” referring to the page number.

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Arizona v. Mauro, 481 U.S. 520 (1987) ....................................................................... 29

Barr v. City of Columbia, 378 U.S. 146 (1964) ........................................................... 33

Benjamin v. State, 116 So. 3d 115 (Miss. 2013).......................................................... 30

Bouie v. City of Columbia, 378 U.S. 347 (1964).......................................................... 34

Cruz v. Arizona, 598 U.S. 17 (2023) .......................................................... 33, 34, 35, 36

Edwards v. Arizona, 451 U.S. 447 (1981) ................................................................... 22

Enterprise Irrigation Dist. v. Farmers Mut. Canal Co., 243 U.S. 157 (1917)............ 37

Evans v. Newton, 382 U.S. 296 (1966) ........................................................................ 28

Harris v. Reed, 489 U.S. 255 (1989) ............................................................................ 32

Hathorn v. Lovorn, 457 U.S. 255 (1982) ..................................................................... 33

Henry v. Mississippi, 379 U.S. 443 (1965) .................................................................. 33

Herb v. Pitcairn, 324 U.S. 117 (1945) ......................................................................... 33

Johnson v. Mississippi, 486 U.S. 578 (1988) .............................................................. 33

Lee v. Kemna, 534 U.S. 362, 376 (2002) ...................................................................... 33

Lynch v. Arizona, 578 U.S. 613 (2016) ........................................................................ 35

Michigan v. Mosley, 423 U.S. 96 (1975) .......................................................... 22, 23, 30

Miranda v. Arizona, 384 U.S. 436 (1966) ........................................................... passim

Moore v. Texas, 139 S. Ct. 666 (2019) ......................................................................... 36

Moore v. Texas, 581 U.S. 1 (2017) ............................................................................... 36

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)..................................................... 28

Moran v. Burbine, 475 U.S. 412 (1986)................................................................. 23, 32

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).................................. 33, 34

North Carolina v. Butler, 441 U.S. 369 (1979) ........................................................... 23

Rhode Island v. Innis, 446 U.S. 291 (1980) ........................................ 22, 24, 25, 26, 27

Simmons v. South Carolina, 512 U.S. 154 (1994) ...................................................... 35

Spano v. New York, 360 U.S. 315 (1959) .................................................................... 26

Tague v. Louisiana, 444 U.S. 469 (1980) .................................................................... 23

United States v. Gomez, 927 F.2d 1530 (11th Cir. 1991) ........................................... 26

United States v. Hernandez, 574 F.2d 1362 (5th Cir. 1978) ...................................... 31

West v. Johnson, 92 F.3d 1385 (5th Cir. 1996) ........................................................... 31

State Cases

Ex Parte Brown, No. WR-26,178-04, 2023 WL 2387836

(Tex. Crim. App. Mar. 7, 2023) .......................................................................... 35, 36

Ex parte Butler, No. WR-41,121-03, 2019 WL 4464270

(Tex. Crim. App. Sept. 18, 2019).............................................................................. 36

Ex parte Davis, No. WR-40,339-09, 2020 WL 1557291

(Tex. Crim. App. Apr. 1, 2020) ................................................................................. 36

Ex parte Guevara, No. WR-63,926-03, 2018 WL 2717041

(Tex. Crim. App. June 6, 2018) ................................................................................ 36

Ex parte Gutierrez, No. WR-70,152-03, 2019 WL 4318678

(Tex. Crim. App. Sept. 11, 2019).............................................................................. 36

Ex parte Medrano, 532 S.W.3d 395 (Tex. Crim. App. 2017) ...................................... 14

Ex parte Milam, No. WR-79,322-02, 2019 WL 190209

(Tex. Crim. App. Jan. 14, 2019) ............................................................................... 36

Ex parte Velez, No. WR–79,360–01, 2013 WL 5765084

(Tex. Crim. App. 2013) ............................................................................................. 14

Ex parte Williams, No. WR–71,296–03, 2018 WL 2717039

(Tex. Crim. App. June 5, 2018) ................................................................................ 36

Maestas v. States, 987 S.W.2d 59 (Tex. Crim. App. 1999) ......................................... 31

McCrory v. State, 643 S.W.2d 725 (Tex. Crim. App. 1982) ........................................ 28

Medrano v. State, No. AP-75,320, 2008 WL 5050076

(Tex. Crim. App. Nov. 26, 2008) .......................................................................... ii, 13

State v. Ybarra, 804 P.2d 1053 (N.M. 1990) ............................................................... 28

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 1

Tex. Crim Proc. Code § 11.071 § 5(a), .................................................. i, 1, 3, 21, 33, 34

Other

Jared Taylor, Former Edinburg cop takes probation in corruption case, THE

MCALLEN MONITOR (Aug. 5, 2011)........................................................................... 12

Roberto Alvarez Obituary, THE MONITOR (Dec. 22, 2020) .......................................... 20

_______________

PETITION FOR A WRIT OF CERTIORARI

Rodolfo Medrano petitions this Court for a writ of certiorari to review the

judgment of the Texas Court of Criminal Appeals in this case.

OPINIONS BELOW

The May 17, 2023, unpublished opinion of the Texas Court of Criminal Appeals

(“TCCA”) is attached as an appendix.

STATEMENT OF JURISDICTION

The Texas Court of Criminal Appeals entered its judgment on May 17, 2023.

An extension of time to file this petition was granted on August 11, 2023, in

Application No. 23A118, extending the time to file to September 14, 2023. This Court

has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Fifth Amendment to the United States Constitution,

which provides: “No person shall be . . . compelled in any criminal case to be a witness

against himself.”

This case also involves Tex. Crim Proc. Code § 11.071 § 5(a), which states, in

relevant parts, as follows:

“If a subsequent application for a writ of habeas corpus is filed after

filing an initial application, a court may not consider the merits of or

grant relief based on the subsequent application unless the application

contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been

presented previously in a timely initial application or in a previously

considered application filed under this article or Article 11.07

because the factual or legal basis for the claim was unavailable on

the date the applicant filed the previous application;

(2) by a preponderance of the evidence, but for a violation of the United

States Constitution no rational juror could have found the applicant

guilty beyond a reasonable doubt[.]”

STATEMENT OF THE CASE

Rodolfo Medrano never planned, intended, or agreed to kill anyone, and was

not present when others committed the murders of which he would later be convicted.

He did, however, supply guns to fellow gang members for them to use in a marijuana

robbery, and he was convicted of capital murder and sentenced to death because a

shootout during that robbery killed members of a rival gang who were unexpectedly

present at the scene. Only one significant piece of evidence inculpated Mr. Medrano

in the murders: his own custodial statement, which admitted his gang membership

and that he had knowingly supplied guns for use in the marijuana robbery.

It is undisputed that Mr. Medrano asserted his right to counsel, but

interrogation did not “cease until an attorney [was] present,” as required by Miranda

v. Arizona, 384 U.S. 436, 474 (1966).

Instead, with no prior initiation on Mr.

Medrano’s part, his assertion was circumvented by a police officer who told Mr.

Medrano’s wife Juana that the police knew Mr. Medrano was not present when the

murders were committed and that he would be allowed to return home to her and

their son if he told them what he knew. The officer then twice arranged for Juana

Medrano to speak with her husband to convey that message and persuade him to

speak. Under all the circumstances—where an officer deliberately deployed Mrs.

Medrano to elicit statements from her husband, gave her false information to share

with him, and offered a powerful incentive for him to speak, and where other officers

deliberately used similar tactics to extract confessions from Mr. Medrano’s codefendants—this constituted interrogation within the meaning of, and forbidden by,

Miranda.

This unconstitutionally obtained statement was the only significant

evidence linking Mr. Medrano to the robbery, and therefore the murders. Without it,

he could not have been convicted.

Texas Code of Criminal Procedure Article 11.071 § (5)(a) provides

three grounds for authorizing a successive state habeas petition, including that “by a

preponderance of the evidence, but for a violation of the United States Constitution

no rational juror could have found the applicant guilty beyond a reasonable doubt.”

Id. at § 5(a)(2). Despite the lack of any significant evidence beyond his confession, the

Texas Court of Criminal Appeals (“TCCA”), without explanation, stated that Mr.

Medrano’s subsequent petition “failed to satisfy the requirements of Article 11.071, §

5(a),” and dismissed it “as an abuse of the writ without considering the merits of the

claims.” Appendix.

A. Offense and arrest.

Mr. Medrano married Juana Garces when he was twenty years old, and two

years later, they had a son. Despite having come from an impoverished family, Mr.

Medrano earned an associate degree and was steadily employed in a legitimate job.

As an adolescent, however, Mr. Medrano had been friends with a group of boys who

eventually joined the Tri-City Bombers gang, 1 and Mr. Medrano did not disavow

1 Tr. Vol. 47 at 47–48.

them after he became a family man. Because Mr. Medrano was smart, had no

criminal record, and legally owned several guns, the Tri-City Bombers designated

him their “treasurer” and “weapons provider.” 2

Focusing on his life as a husband and working father, Mr. Medrano attended

mandatory gang meetings but took no part in robberies or other criminal activities. 3

On occasion, he loaned his own guns to fellow gang members, and once, four months

before the capital murders at issue here, other gang members used Mr. Medrano’s

guns—without his foreknowledge—in a deadly crime. 4

When a captain of the Tri-City Bombers asked to borrow Mr. Medrano’s guns

for a robbery of a large quantity of marijuana, Mr. Medrano complied. But when

invited to come along on the robbery, Mr. Medrano “told them no because . . . [he had]

never done something like that,” adding, “I don’t do that, you know.” 5 Instead, Mr.

Medrano and his wife went out, picked up a movie, and watched it at home.

Meanwhile, the marijuana robbery unexpectedly turned into a chaotic

shootout. Arriving at the house they intended to rob, the would-be robbers confronted

members of a rival gang.

The Tri-City Bombers crushed their surprised and

2 Tr. Vol. 43 at 83; Tr. Vol. 47 at 51.

3 Tr. Vol. 43 at 63–64.

4 Tr. Vol. 47 at 51-52. An incarcerated gang member, operating outside the Tri-City

Bombers’ chain of command, issued a rogue order placing a “hit” on a witness;

however, the hit did not go off as planned and four women—none of them the targeted

witness—were killed. Tr. Vol. 43 at 87. Mr. Medrano knew nothing of the planned

rogue hit until after the fact. Tr. Vol. 47 at 52.

5 Tr. Vol 43 at 63–64.

outnumbered rivals, killing six of them. Mr. Medrano realized something had gone

terribly wrong with the robbery only when he saw a news report about the murders. 6

Several weeks later at 6:30 a.m., police burst into the home where Mr.

Medrano lived with his then-wife Juana and their baby boy. The three were in bed

when police grabbed Mr. Medrano, handcuffed him, and put him into a police vehicle

to be transported to the Edinburg Police Department. 7 The police also manhandled

other family members who were present, including Juana’s mother and three sisters,

who were thrown to the floor and handcuffed. 8 The police transported Mr. Medrano

to the station at 7:30 a.m., and shortly thereafter transported his wife, her mother,

and three sisters, all still in handcuffs, to the same location. The police told Paula

Garces, Maribel Garces, and Guadalupe Garces that they were coming voluntarily,

but they remained in handcuffs the entire time and never were told why they were

being detained. 9

Mr. Medrano was booked at 7:42 a.m. and then taken into a cell-block area,

where he initially refused to talk to the police. 10 Immediately after he was booked,

Texas Rangers attempted to question Mr. Medrano and obtain a signed waiver of

6 Id. at 63.

7 See Aff. Juana Garces Medrano Ex. 30a, at 1; Aff. Juana Garces Medrano Ex. 30b,

at 1; Decl. Monica Garces Ex. 3, ¶ 3; Decl. Maribel Garces Ex. 2, ¶¶ 3–7.

8 See Aff. Juana Garces Medrano Ex. 30a, at 1–2; Aff. Juana Garces Medrano Ex. 30b,

at 1–2; see also Decl. Monica Garces Ex. 3, ¶¶ 5–9; Decl. Maribel Garces Ex. 2, ¶¶ 5–

9 Decl. Maribel Garces Ex. 2, ¶¶ 7–9; Decl. Guadalupe Garces Ex. 1, ¶¶ 8–11; see Decl.

Paula Garces Ex. 4, ¶¶ 8–9.

10 See Tr. Vol. 15, at 22.

rights. 11 Mr. Medrano both requested an attorney from Ranger Rolando Castaneda

and refused to speak with law enforcement. 12 He was then put into a holding cell.

Mr. Medrano’s family members were interrogated one-by-one. 13 Officer Edgar

Ruiz spoke to Juana Medrano at 9:00 a.m. He asked her about the night of January

6, and she explained that Mr. Medrano had been with her the entire night: they went

to dinner, bought some movies, and went home. 14 After obtaining from Mrs. Medrano

a written statement describing the guns that were kept in the family home, police

told her that they needed to know what her husband knew. Ruiz told her that “[w]e

already know that he was not at the crime scene” and “[l]ook he can go home with

you and Dominik [their baby], he just needs to tell us what he knows, about what

happened that night.” 15 Mrs. Medrano then asked, “he is going to come home with

me[?]” and Officer Ruiz responded, “[Y]es.” 16

Mr. Medrano’s wife, her mother, and her sisters were brought to wait in a

lunchroom. 17 Officer Ruiz then retrieved Mrs. Medrano and allowed her to speak

11 Decl. Rodolfo Medrano Ex. 34, Decl. Rodolfo Medrano Ex. 34, at 1; Rep. Tex. Ranger

Rolando Castaneda, ¶ 1.28.

Id. (“On same date, this writer [Castaneda] and Ranger Collins interviewed

Medrano, who after being advised of his Constitutional Rights requested an attorney

and refused to be interviewed.”).

13 See Decl. Monica Garces Ex. 3, ¶ 11–12; Decl. Maribel Garces Ex. 2, ¶ 10; Decl.

Guadalupe Garces Ex. 1, ¶ 12; Decl. Paula Garces Ex. 4, ¶¶ 10–11.

14 Aff. Juana Garces Medrano Ex. 30a, at 2; Aff. Juana Garces Medrano Ex. 30b, at

15 Id.

16 Id.

17 Aff. Juana Garces Medrano Ex. 30a, at 2; Aff. Juana Garces Medrano Ex. 30b, at

with her husband. 18 Officer Ruiz told Mr. Medrano, who had been taken to a small

room, that he would be allowed to speak to his wife for a few minutes, but could not

touch her. 19 Mr. Medrano could see his wife in the small room as Officer Ruiz stood

in the doorway. 20 His wife cried and pleaded with him to tell the police what he

knew. 21 She begged him, “please Rudy tell them what they want to know, he said you

can come home with us” and “[t]hey just need you to tell them what you know about

all this.” 22 The couple spoke for about five minutes, with Ruiz standing in the

doorway behind Mrs. Medrano the entire time. 23 Mr. Medrano was then returned to

a holding cell while police transported his wife and her family to her uncle and aunt’s

house. 24

That night, police assisted Mr. Medrano in calling and speaking to his wife.

Officers told him that she was at her aunt and uncle’s house, which they knew

because they had taken her there, and gave Mr. Medrano the phone number. 25 On

the phone, Juana again pleaded with Mr. Medrano to tell the police what he knew

18 Id.

19 Decl. Rodolfo Medrano Ex. 34, at 1.

20 Id.

21 Aff. Juana Garces Medrano Ex. 30a, at 2; Aff. Juana Garces Medrano Ex. 30b, at

22 Id. at 1–2.

23 Decl. Rodolfo Medrano Ex. 34, at 1, 2.

24 Id.; Aff. Juana Garces Medrano Ex. 30a, at 3 Aff. Juana Garces Medrano Ex. 30b,

at 3.

25 Aff. Juana Garces Medrano Ex. 30a, at 3; Aff. Juana Garces Medrano Ex. 30b, at

about the crime because the police knew he was not present and because, if he told

them, they would then allow him to go home with her. 26 Mr. Medrano decided to tell

the officers what he knew.

Mr. Medrano approached Officer Reyes Ramirez when Ramirez was checking

the cell blocks where Mr. Medrano was being held. 27 According to Ramirez, Mr.

Medrano “said he wanted to talk to me.

He wanted to cooperate with the

investigation.” 28 Ramirez testified that he did not think Mr. Medrano was “serious,”

telling him, “Look, if you want to cooperate without an attorney, tell me where the

weapons are.” 29 Mr. Medrano then told Ramirez where to find the guns, and officers

retrieved them. 30 The next day, Mr. Medrano was brought into an interrogation room

and again asked to sign a waiver; he did so, and then gave Ramirez a full statement. 31

At Mr. Medrano’s arraignment, he once again asked for an attorney. 32 Later

that day, Investigator Juan Sifuentes interviewed Mr. Medrano about his knowledge

of the earlier crime committed by rogue gang members, “the Donna murders.” 33

Sifuentes asked Mr. Medrano to sign a waiver, which he did, and then gave a full

26 Id.

27 Tr. Vol. 43 at 41.

28 Id.

29 Id. at 42.

30 Id. at 43.

31 Tr. Vol. 43 at 43–44.

32 Tr. Vol. 16 at 36.

33 Tr. Vol. 16 at 33.

statement about the unrelated murders and the gang to which he belonged, the TriCity Bombers. 34

B. Trial and appeal.

Mr. Medrano informed trial counsel about the events leading to his statement:

how the police had used his wife Juana to urge him to confess, assuring him that the

police had promised to let him go home if he told them what he knew, and that Officer

Edgar Ruiz was present, standing in the doorway, when Juana relayed this

promise. 35 Nonetheless, nothing in the record reflects that trial counsel ever called or

attempted to speak to any of the Edinburg police officers, spoke to Juana Medrano

about the promises made to her, or made any other attempt to corroborate Mr.

Medrano’s account of the inducement offered to him through his wife. Trial counsel

did move to suppress Mr. Medrano’s statement as involuntary, but solely on the basis

that Mr. Medrano had been without sleep for more than two days when he made it,

and produced no evidence to support that claim. 36

The suppression hearing testimony of the State’s witnesses established the

general sequence of events, but none of the witnesses testified to what transpired in

the time between Mr. Medrano’s arrest and his first statement. The State called

police officer Reyes and sheriff’s investigator Sífuentes, each of whom recorded one of

34 Tr. Vol. 16 at 34, 46–55. The “Donna murders” are the homicides described in n.4,

supra.

35 Decl. Rodolfo Medrano Ex. 34, at 1.

36 Tr. Vol. 15–16.

Mr. Medrano’s statements. 37

Ramirez reported that the day Mr. Medrano was

arrested he refused to speak to Texas Rangers and requested an attorney, but then

the next morning asked to speak to him, at which time Mr. Medrano waived his

rights. 38 Ramirez then recorded Mr. Medrano’s statement regarding his involvement

in the planned robbery. 39 Sífuentes, who questioned Mr. Medrano about the previous

murder by the rogue gang member and generally about the Tri-City Bombers,

reported that Mr. Medrano waived his rights on the day he was arraigned, and that

he, Sífuentes, then took Mr. Medrano’s statement. 40 Edgar Ruiz—the officer who

deployed Mr. Medrano’s wife to induce him to submit to questioning—did not testify.

Defense counsel called no witnesses, and the court denied the motion. 41

At the guilt/innocence phase of trial, the State was required to prove the fact

of the murders, that the murders were committed either by Mr. Medrano himself or

by someone else for whose conduct Mr. Medrano was legally responsible, and that

Mr. Medrano should have anticipated those murders when he loaned his guns to

another gang member to use in a robbery. Rosie Gutierrez testified to the events that

occurred during the marijuana robbery, describing how members of the Tri-City

Bombers broke into her home and how two of her sons and four other men were killed

37 See Tr. Vol. 15 at 18 (Ramirez), Tr. Vol. 16 at 31 (Sifuentes).

38 Tr. Vol. 15 at 22; id. at 19-20; id. at 20-21.

39 Tr. Vol. 15 at 25–26, 32–69.

40 Tr. Vol. 16 at 41–43.

41 Id. at 78, 84.

in the ensuing violence; her testimony did not implicate Mr. Medrano. 42 The State

introduced evidence recovered from Mr. Medrano’s residence generally connecting

him to the Tri-City Bombers, as well as Mr. Medrano’s guns, to which he had directed

the police. 43 Although the guns belonging to Mr. Medrano were among those fired at

the scene of the marijuana robbery, the State’s ballistics expert testified that the

bullets recovered from three of the victims’ bodies could not have been fired from any

of Mr. Medrano’s firearms, and that he could not determine whether the bullets that

killed the other victims were fired from any of Mr. Medrano’s guns. 44 Thus, no

evidence established that any weapon linked to Mr. Medrano was used to injure or

kill any of the victims.

Officer Ramirez described taking Mr. Medrano’s statement, and then read it

to the jury. In that statement, Mr. Medrano admitted belonging to the Tri-City

Bombers; stated that, at Humberto Garza’s request, he had loaned his guns to Juan

Cordova for use in the marijuana robbery; described his own activities at home on the

night of the crime; and expressed his shock upon learning of the murders from the

news.

The State presented no evidence to contradict Mr. Medrano’s account of his

limited role in the crime. The prosecution called its star witness, purported gang

42 Tr. Vol. 42 at 13–25.

43 Tr. Vol. 41 at 152–53.

44 Tr. Vol. 41 at 153-54. One of these guns had a microscopic blood transfer stain on

the muzzle, and the DNA profile of the blood stain was consistent with one of the

victims. Tr. Vol. 41 at 109, but inconsistent with the spatter that would occur had the

gun been used to shoot the victim at close range. Id. at 104.

expert Robert Alvarez, in an attempt to supply some proof that Mr. Medrano should

have anticipated the victims’ deaths. 45 Alvarez—who later, in response to an

indictment charging him with eight felonies related to abuse of his office, pled guilty,

and was decertified as a police officer 46—testified that Mr. Medrano should have

anticipated the robbery would end in murder because a so-called “green light” existed

between the Tri-City Bombers and the Texas Chicano Brotherhood. According to

Alvarez, every member of the Tri-City Bombers would have had a duty to “represent

the gang” by attacking any Texas Chicano Brother he might encounter; such an

attack could range from a fistfight, to stabbing, to murder. 47 Moreover, Alvarez

testified that someone like Mr. Medrano, a “sergeant” who handled money and

provided weapons, would occupy a “high rank” and position of trust, such that he

would have known about the “green light” between the rival gangs. 48

As Mr.

Medrano’s federal habeas counsel would later uncover, this purported gang expert

entirely fabricated his qualifications, and grossly exaggerated both Mr. Medrano’s

role in the gang, and the likely consequences of any such “green light” between gangs.

First Amended Petition for a Writ of Habeas Corpus, filed 01/14/2019 at 52-90. Mr.

Medrano was convicted of capital murder. 49

45 Tr. Vol. 44 at 48.

46 See Jared Taylor, Former Edinburg cop takes probation in corruption case, THE

MCALLEN MONITOR (Aug. 5, 2011).

47 Tr. Vol. 44 at 127–29.

48 Id. at 116, 126, 132, 130-33.

49 Tr. Vol. 46 at 56.

At punishment, the State argued that Mr. Medrano’s knowledge of the prior

gang-related murders (the “Donna murders”) showed his lack of remorse and proved

that he actually anticipated the loss of life that occurred in the charged capital

offense, as required for the imposition of a death sentence. Investigator Sífuentes

testified about the “Donna murders” and Mr. Medrano’s statement to Sífuentes about

that crime, which admitted that without knowing they planned to kill anyone, he had

provided the perpetrators with guns. The State presented no evidence that Mr.

Medrano knew that the gang members who had committed the unauthorized prior

murders would be present at the marijuana robbery, but again relied on purported

expert Alvarez’s testimony, this time to meet the higher burden of showing Mr.

Medrano actually anticipated the loss of life during the latter offense.

Mr. Medrano was sentenced to death, and the TCCA affirmed his conviction

and sentence on direct review. Medrano v. State, No. AP-75,320, 2008 WL 5050076

(Tex. Crim. App. Nov. 26, 2008). 50

C. Initial state postconviction proceedings.

In 2013, Mr. Medrano sought state postconviction relief; this application

alleged that trial counsel was ineffective for failing to argue that Mr. Medrano’s

confession was involuntary under the Fourteenth Amendment because it was induced

On appeal, Mr. Medrano, still represented by trial counsel, asserted that his

custodial statement had been admitted in violation of his Fifth Amendment rights

because Officer Ramirez had initiated contact with Mr. Medrano after he had invoked

his Miranda rights. Medrano, 2008 WL 5050076, at *113–14. The CCA rejected the

argument as unsupported by facts or law, id. at *61, which was accurate given that

none of the facts that make out the Miranda claim Mr. Medrano raises here were

before that court.

by promises. However, that application neither asserted the factually-related (and

legally stronger) Miranda claim, nor provided any support for the involuntariness

claim beyond affidavits from Mr. Medrano and his now-ex-wife, Juana Garces. Lead

trial counsel Hector Villarreal having died, the State proffered the affidavit of second

chair Rene Flores, who did not “recall ever being aware” that Ms. Garces had been

told that if Mr. Medrano cooperated, he would be allowed to go home. 51 Flores further

stated that had defense counsel been aware of that information, they would have

presented it at the suppression hearing. 52 The trial court credited Flores’ affidavit,

and without holding an evidentiary hearing, denied relief.

In a brief opinion, the TCCA “based upon [its] own review of the record”

affirmed the denial of relief. Ex parte Medrano, 532 S.W.3d 395, 395 (Tex. Crim. App.

2017). Four judges dissented, objecting that the trial court should have held an

evidentiary hearing to resolve disputed issues, including the voluntariness issue. Id.

at 395–98 (Alcala, J., dissenting); id. at 398–400 (Richardson, J., dissenting) (an

evidentiary hearing was warranted, in part because many of the lower court’s

findings lacked support in the record).

51 Aff. O. Rene Flores Ex. 35, at 14. The same team, Mr. Villarreal and Mr. Flores,

were previously found ineffective in a capital case. Ex parte Velez, No. WR–79,360–

01, 2013 WL 5765084, (Tex. Crim. App. 2013). In the Velez case, tried several years

after Mr. Medrano’s case, Villareal and Flores failed to investigate the State’s case,

failed to present evidence in support of the defense they argued, and failed to

challenge the State’s expert witnesses’ opinions. Id.

52 Aff. O. Rene Flores Ex. 35. at. 15.

D. Federal habeas proceedings and the state subsequent application.

Mr. Medrano, represented by pro bono counsel, filed a federal habeas petition

which included both the voluntariness claim pled in state habeas, and the related

Miranda claim that is the subject of this petition, as well as an allegation that the

State had presented false evidence in violation of due process. In support of both the

voluntariness claim and the Miranda claim, Mr. Medrano provided corroboration for

the Medranos’ accounts of the inducements offered by Officer Ruiz. Juana Garces’

account of her then-husband’s arrest was confirmed by statements from her mother

and sisters. 53 More importantly, her sister and mother were present when Juana

Garces spoke by phone with Mr. Medrano later that day at their aunt and uncle’s

house. Monica Garces remembered the call, though not what was said, 54 while Paula

Garces also “heard Juana keep telling Rudy to say what happened and what they

wanted to hear because they were going to let him out.” 55

Equally critical to the credibility of Mr. Medrano’s Miranda claim was evidence

of the interrogations of his co-defendants. That evidence shows that using a family

member to induce a defendant to speak to the police after the defendant had invoked

his Miranda rights—to circumvent the constitutional bar against police re-initiation

of interrogation 56—was not an isolated instance of misconduct, but part of a pattern

53 See Decl. Monica Garces Ex. 3; Decl. Maribel Garces Ex. 2; Decl. Paula Garces Ex.

4; Decl. Guadalupe Garces Ex. 1.

54 Decl. Monica Garces Ex. 3, ¶ 14.

55 Decl. Paula Garces Ex. 4, ¶ 13.

56 See Edwards v. Arizona, 451 U.S. 477 (1981).

and practice in the Edinburg Police Department. Four co-defendants had similar

experiences, and the declaration of then-police officer Robert Alvarez (the State’s

purported expert witness at Mr. Medrano’s trial) is further evidence of the same

pattern of misconduct.

Jorge Martinez, Mr. Medrano’s co-defendant, was induced to make a statement

through pressure put on his wife; the Edinburg Police threatened to arrest his wife

and make her take the stand. 57 Martinez did not want to give a statement, but he

also did not want the police to arrest his then-pregnant wife and have her spend the

night in jail. 58 “Officers Robert Alvarez and Edgar Ruiz gave me their word that if I

signed the statement they had typed, my wife would not step foot in jail. I signed the

statement, making only minor changes, to prevent my wife from being taken to jail.” 59

Another co-defendant, Humberto Garza, moved to suppress his statement

before trial. 60 Humberto Garza did not give a statement until the morning after his

arrest, but Detective Ochoa claimed that as he was checking the cell areas, Garza

motioned to him that he wanted to talk. 61

However, as Garza’s mother Lydia

testified, when he was arrested the police called her and created a conditional

opportunity for her son to speak to her:

A. An officer called, and he put Beto [Humberto] on

the phone. And Beto said, they’ll let you come if I talk. …

57 Decl. Jorge Martinez Ex. 6.

58 Id. ¶ 4.

59 Id.

60 Tr. Humberto Garza Ex. 32, Vol. 12.

61 Id. at 2-4.

That if he cooperated with them, they would let us go there

in person to see him at the jail.

Q. BY MR. R. MARTINEZ: So you are saying that

they made a condition for your appearance or your meeting

with your son? Your son had to cooperate before they

would let you talk to him? Is that what you are saying that

the officer told you?

A. Yes. 62

Then the police used his mother to relay a promise to Garza to encourage him to talk.

She described her experience at the Edinburg Police Station:

We got there. I told them who we were. They let us in this

room where Beto was at, and there was an officer sitting

there . . . I don’t know [the officer’s name]. Well, we got

there and Beto was crying and we just—I mean, it is—was

overwhelming. We were just overwhelmed . . .

Q. Okay. Did—what did they tell you, the officer?

A. Well, he was in there, and I would just embrace my son

and told him everything was going to be fine. And there

was an officer that walked—and he did this several times.

He walked to the doorway, opened the door, and said,

ma’am, tell him to talk to or he is going to get this

(indicating).

MR. R. MARTINEZ: Let the record reflect that my client is

making a point to her vein, as if to simulate an injection.

Q. BY MR. R. MARTINEZ: Is that a proper description of

what you just demonstrated?

A. Yes. Yes. And he didn’t do it only once. He did it, I would

say, a good three times. He came by the door. 63

62 Id. at 29.

63 Id. at 30–32 (emphasis added).

Garza’s mother could not recall whether this officer was Reyes Ramirez or Edgar

Ruiz, but was certain he came to the door. 64 When asked if the officer addressed her

son, Ms. Garza responded that the officer “looked at Beto directly. You know, he

looked at us.” 65

Co-defendants Marcial Bocanegra and Jorge Martinez were similarly

pressured. Bocanegra’s account reflects enormous coercion—and a similar method of

applying that coercion:

The police brought the mother of my children and her sister

to the station. They scared the mother of my children and

told her that they were going to take her children and

arrest her. They took me into a small room and brought

the mother of my children into the room with me. They

stood outside the open door as she spoke to me. She told me

about what the police had told her about taking our

children and arresting her. She was crying. 66

Eventually, Bocanegra confessed, and then pled guilty in exchange for a thirty-fiveyear sentence.

Robert Garza, another Tri-City Bomber, was treated in a similar fashion by

the Edinburg police during their investigation. When the police arrested Robert

Garza, they arrested his wife as well. 67 She was naked at the time. 68 Robert Garza

64 Id. at 32.

Id. at 33. The court did not find this claim persuasive in Humberto Garza’s

suppression hearing, however that court was not presented with the evidence of the

other similar claims brought by co-defendants or the partially corroborating

statements of Juana Garces’s sisters.

66 Decl. Marcial Bocanegra Ex. 5, ¶ 4.

67 Decl. Jorge Martinez Ex. 6, ¶ 8.

68 Id.

testified at his suppression hearing, stating that the police promised that he would

be allowed to phone and visit his wife if he gave a statement. 69 Once the police

allowed Robert Garza to see his wife, he signed the statement. 70

Mr. Medrano’s co-defendant Juan Cordova also unambiguously asked for an

attorney. 71 The police put Cordova into a holding cell for a while, then brought him

back out for more questioning. 72 Cordova was never provided with an attorney and

never signed a waiver; he took a plea deal for his part of the marijuana

robbery/murder and is serving 25 years. 73

Thus, these declarations establish that police investigating this case used

analogous tactics to procure confessions from Mr. Medrano’s codefendants. Moreover,

two of these defendants—Robert Garza and Humberto Garza—made these similar

claims almost two decades ago; they could not have been manufactured to help Mr.

Medrano. Nor is it a reasonable inference that the co-defendants conspired at the

time of trial to tell similar stories; had that been the case, they surely would have

used the similar stories to bolster each other’s credibility. Instead, because neither

co-defendant made any reference to the other in litigating their confession claims,

69 Tr. Robert Garza Ex. 33, Vol. 6 at 41.

Id.

70 Id. at 42-43. Robert Garza argued that these promises rendered his confession

involuntary, but the trial court rejected his claim. However, that court had no

information regarding the practices of the police in the other co-defendants’ cases.

71 Decl. Juan Cordova Ex. 7.

72 Id. ¶ 6.

73 Id. ¶ 6, ¶ 8.

each record was devoid of evidence that could have shown a pattern of police

misconduct.

Finally, in a declaration obtained by Mr. Medrano’s federal habeas counsel,

former police officer Robert Alvarez 74 corroborated the police officers’ pattern of

interrogation-misconduct-via-relatives—and made it plain that these methods were

routine in the Edinburg Police Department. Alvarez stated that he witnessed how

the Texas Rangers were interrogating Mr. Medrano’s co-defendants, specifically

Marcial Bocanegra, “for about six or seven hours at a time and would keep

interrogating them even after they had requested an attorney.” 75 He stated that the

Edinburg Police Department would use a different “procedure” from that of the Texas

Rangers:

[We at the Edinburg Police Department] used tactics that we were

taught were within the bounds of the law. We could not fabricate

evidence, but we could use other means to get suspects to confess.

For example, if police officers arrested a suspect for drug possession

in his aunt’s home, they would tell him “we know your aunt is the

owner of the house so we will arrest your aunt since she owns the

house, unless you talk to us and tell us the truth.” The officers

would know that the aunt had nothing to do with the drugs or the

crime, but they could still legally arrest her since the drugs were in

her house and so it was legal to use this as leverage to get the

defendant to confess about the crime. This was all still done within

the bounds of the law[.] 76

74 Alvarez was indicted, pled guilty, and lost his job as a police officer. Email from

Jared Taylor (Oct. 8, 2022, 16:22 ET) Ex. 36, at 1–2. He is now deceased. See Roberto

Alvarez

Obituary,

THE

MONITOR

(Dec.

22,

2020),

https://www.legacy.com/us/obituaries/themonitor/name/roberto-alvarezobituary?id=7891069. He had given similar affirmations in an affidavit in support

of one of Mr. Medrano’s co-defendants, Juan Ramirez. Aff. Robert Alvarez Ex. 29.

75 Decl. Robert Alvarez Ex. 25, ¶¶ 4–5.

76 Id. ¶ 7.

Alvarez also corroborates the Edinburg Police Department’s practice of “making

contact” with suspects during security checks on their holding cells:

If a suspect asked for a lawyer, we were taught that we had to stop

questioning them. When suspects asked to remain silent, it was

different. They couldn’t be forced to speak, but we could continue to

talk to them. Sometimes I would just keep talking and tell them

about what we already knew. And sometimes we would stop the

interrogation and after a small break, we would check back on them

and talk to them again during the security checks we did every

thirty minutes. 77

Mr. Medrano’s motion for a stay to pursue his state court remedies was

granted. He promptly filed a subsequent habeas application in state court, to which

the State did not respond. On May 17, 2023, the TCCA dismissed this application “as

an abuse of the writ [and] without considering the merits of the claims,” stating that

it “failed to satisfy the requirements of [Tex. Code Crim. Proc.] Article 11.071, § 5(a).”

Appendix A.

REASONS FOR GRANTING THE WRIT

I. Summary reversal is appropriate because the record establishes that

police in Hidalgo County, Texas are deliberately evading this Court’s

Fifth Amendment holdings, and the TCCA refused to address those

practices despite having a readily available procedural vehicle for

doing so.

Under Miranda v. Arizona, a suspect must be warned prior to a custodial

interrogation of his rights to remain silent and to an attorney, warnings that protect

a suspect’s privilege against compelled self-incrimination. 384 U.S. 436, 467–68

77 Id. ¶ 6.

(1966). When a suspect asserts his desire to speak to an attorney, Miranda imposes

particularly strong safeguards:

If the [warned] individual states that he wants an attorney,

the interrogation must cease until an attorney is present. At

that time, the individual must have an opportunity to

confer with the attorney and to have him present during

any subsequent questioning.

Miranda, 384 U.S. at 473–74 (emphasis added); see also Edwards v. Arizona, 451 U.S.

447 (1981). After a suspect invokes his right to counsel, “a valid waiver of that right”

can only be shown when “the accused himself initiates further communication,

exchanges, or conversation with the police.” Edwards, 451 U.S. at 484. Absent such

initiation, police may not interrogate the suspect further. Id.

“Interrogation” under Miranda includes all “words or actions” by the police

that they “should know are reasonably likely to elicit an incriminating response from

the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). An “incriminating

response” means “any response whether inculpatory or exculpatory that the

prosecution may seek to introduce at trial.” Id. at n.5. The test is an objective one

but the intent of the police is nonetheless relevant because any practice “designed to

elicit an incriminating response” is likely also one “which the police should have

known was reasonably likely to have that effect.” Id. at 301 n.7.

Miranda also protects a suspect’s assertion of the right to remain silent; this

“right to cut off questioning” has been recognized as the most important safeguard

erected by that seminal decision. Michigan v. Mosley, 423 U.S. 96, 104 (1975).

Accordingly, under Miranda “the admissibility of statements obtained after the

person in custody has decided to remain silent depends … on whether his ‘right to cut

off questioning’ was ‘scrupulously honored.’” Id. (citing Miranda, 384 U.S. at 474).

When the police failed to “scrupulously honor” a suspect’s right to terminate an

interrogation, any resulting confession must be suppressed. Id. Whether subsequent

questioning “scrupulously honor[s]” the suspect’s invocation of his right to remain

silent must be determined on a case-by-case basis, looking at all the relevant facts.

See Mosley, 423 U.S. at 103.

A suspect may waive his Miranda rights but must do so “knowingly and

voluntarily.” North Carolina v. Butler, 441 U.S. 369, 373 (1979).

Determining

whether a waiver was knowing and voluntary requires a two-part inquiry into the

“totality of the circumstances surrounding the interrogation.” Moran v. Burbine, 475

U.S. 412, 421 (1986). The first question is whether the waiver was “the product of a

free and deliberate choice rather than intimidation, coercion, or deception,” and the

second, whether the waiver was “made with a full awareness of both the nature of

the right being abandoned and the consequences of the decision to abandon it.” Id.

The state carries the heavy burden of proving the suspect understood the rights and

that the waiver was knowing and intelligent. Tague v. Louisiana, 444 U.S. 469, 471

(1980). Any evidence that the suspect was “threatened, tricked, or cajoled” into

surrendering his rights will vitiate a claimed waiver. Miranda, 384 U.S. at 476.

Here, there can be no doubt that under this Court’s precedents, Mr. Medrano

made no knowing waiver, but was instead interrogated despite having invoked his

rights to counsel and to remain silent.

Mr. Medrano was in custody at the time he made statements; he was under

arrest and detained at the jail. There is no dispute that he invoked both his right to

an attorney and his right to silence. Cf. Innis, 446 U.S. at 298 (noting, before turning

to the issue whether statements by the police in Innis’ presence constituted

interrogation, the parties’ agreement that Innis was in custody, had received

Miranda warnings, and had invoked his right to counsel). Thus, if the ploy using Mr.

Medrano’s wife constituted interrogation within the meaning of Miranda, then

interrogation did not “cease until an attorney [was] present” and the introduction of

Mr. Medrano’s statement at trial violated the Fifth and Fourteenth Amendments.

Moreover, if the deception used by police failed to “scrupulously honor” Mr. Medrano’s

invocation of his right to remain silent, this violated the same constitutional

guarantees.

A. Using Mr. Medrano’s Wife to Convey an Inducement to Confess

Constituted Interrogation.

Not only express questions, but their “functional equivalent,” constitute

interrogation within the meaning of Miranda. Innis, 446 U.S. at 301. “That is to say,

the term ‘interrogation’ under Miranda refers not only to express questioning, but

also to any words or actions on the part of the police (other than those normally

attendant to arrest and custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.” Id.

This definition “focuses

primarily upon the perceptions of the suspect, rather than the intent of the police.”

Id.

But in this case, unlike Innis, the actions on the part of police were both

reasonably likely to elicit an incriminating response and calculated to do so.

When Edgar Ruiz told Juana Medrano that the police knew her husband had

not been present during the murders, and that if he told the police what he knew, he

would be free to go home to her and their baby, and then stood behind her while Ms.

Medrano repeated those promises to Mr. Medrano, it was reasonable for Mr. Medrano

to believe that Ruiz had given those assurances.

And when police allowed Mr.

Medrano to call his wife—indeed, even gave him the phone number necessary to do

so—and she repeated Ruiz’s promises, then begged him for a second time to tell the

police what he knew, those actions were reasonably likely to elicit an incriminating

response from Mr. Medrano. And they did.

While a detached lawyer familiar with the law of felony murder might well

have doubted that Mr. Medrano would be released upon telling the police what he

knew, a frightened layperson ignorant of the law, faced with a crying wife and missing

his baby son, might well do so. Mr. Medrano needed the detachment and expertise

of a lawyer. Indeed, recognizing his own incompetence, he had invoked his right to

counsel, but Officer Edgar Ruiz circumvented that invocation.

Had the TCCA compared this case with Innis, the comparison should have

been dispositive.

The Innis Court pointed to several facts that diminished the

likelihood of an incriminating response, none of which are present here. First, the

detectives in Innis were not addressing the defendant, but talking among themselves.

Id. at 302 (“[Their] conversation was, at least in form, nothing more than a dialogue

between the two officers to which no response from the respondent was invited.”). In

contrast, Mr. Medrano’s wife, repeating Officer Ruiz’s promises, spoke directly to him.

Second, this is not a situation where “the entire conversation appears to have

consisted of no more than a few off hand remarks.” Id. at 303. Instead, Mr. Medrano

spoke to his wife for as much as five minutes, during which she importuned him to

give a statement; she later repeated that plea over the phone. Third, nothing in the

record in Innis “suggest[ed] that the officers were aware that [Innis] was peculiarly

susceptible to an appeal to his conscience concerning the safety of handicapped

children.” Id. at 302. But for two reasons, Officer Ruiz should have known that Mr.

Medrano was susceptible to the inducement conveyed to him. First, unlike an appeal

to conscience, which might affect some defendants but not others, appeals to selfinterest would likely affect any suspect. See United States v. Gomez, 927 F.2d 1530,

1538 (11th Cir. 1991) (finding that statements made to a suspect about possible

sentencing and the benefits of cooperation were reasonably likely to elicit an

incriminating response, and therefore constituted interrogation). And second, Ruiz

had reason to know that Mr. Medrano, who had a wife and baby, would be particularly

susceptible to pleas from his wife to do whatever was necessary to come home to

them. 78 See Spano v. New York, 360 U.S. 315, 323 (1959) (noting that the “bond of

friendship” led Spano to yield to an inducement fed to him by his false friend, an

78 In Innis the Court also commented, “Nor is there anything in the record to suggest

that the police knew that the respondent was unusually disoriented or upset at the

time of his arrest.” Id at 302–03. While the record in this case does not reflect that

Mr. Medrano was displaying symptoms of disorientation or disturbance, he was

roused from his bed at 6:30 in the morning and beseeched by his crying wife. A

reasonable police officer would know that these events are not conducive to calm

consideration of the options.

inducement that the officers investigating the case believed would overcome Spano’s

reluctance to speak).

Moreover, the Innis Court acknowledged that while the test is subjective,

“where a police practice is designed to elicit an incriminating response from the

accused, it is unlikely that the practice will not also be one which the police should

have known was reasonably likely to have that effect.” Id. at 301 n.7. Here, unlike in

Innis, where the officers wished to protect vulnerable children, the only intelligible

purpose behind Ruiz’s actions was to pressure Mr. Medrano to confess. That this was

his purpose is cemented by his use of very similar techniques with not one, but five

of Mr. Medrano’s co-defendants.

Finally, in concluding that interrogation encompasses not only express

questioning but its functional equivalent, the Innis Court noted a handful of classic

interrogation techniques Miranda recognized as posing the same dangers as express

questioning. Included in that list were “the use of psychological ploys, such as to

‘posi[t]’ ‘the guilt of the subject,’” and to “minimize the moral seriousness of the

offense.” Id. at 299 (quoting Miranda, 384 U.S. at 450). Here, it is plain that Ruiz

minimized the moral seriousness of Mr. Medrano’s offense (in contrast to the moral

seriousness of the murders committed by his fellow gang members) by emphasizing

that the police knew he was not present, or involved in the murders in any way;

telling his wife (who then told him) that they would let him go home if he told them

what he knew further strongly implied that the offense was—at least relatively

speaking—of lesser moral seriousness.

It makes no difference that Officer Ruiz used Mr. Medrano’s wife to convey his

message to Mr. Medrano rather than speaking to him directly. The government

cannot evade constitutional limitations by using a private individual as its agent, as

this Court’s Equal Protection jurisprudence has long made plain: “Conduct that is

formally ‘private’ may become so entwined with governmental policies or so

impregnated with a governmental character as to become subject to the constitutional

limitations placed upon state action.” Evans v. Newton, 382 U.S. 296, 299 (1966); see

also, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 177–78 (1972) (“There can be no

doubt that the label ‘private club’ can be and has been used to evade both regulations

of state and local liquor authorities, and statutes requiring places of public

accommodation to serve all persons without regard to race, color, religion, or national

origin.”) Likewise, when someone other than a police officer communicates with the

defendant, the question is whether the suspect’s statement “‘resulted from’ a

calculated practice” on the part of a state agent who was attempting to elicit such a

response, as the TCCA itself has recognized. McCrory v. State, 643 S.W.2d 725, 734

(Tex. Crim. App. 1982) (citing Innis 446 U.S. at 301). Thus, where a suspect was

treated at a hospital after a stabbing, and a nurse questioned him about the incident

during treatment with a police officer present, the elicited statements were

suppressed as the product of custodial interrogation. State v. Ybarra, 804 P.2d 1053,

1054–55 (N.M. 1990).

Because Ruiz told Mr. Medrano’s wife that he could go home if he told police

what he knew, and then—twice—created an opportunity for her to convey that

information to Petitioner, this is unlike Arizona v. Mauro, 481 U.S. 520 (1987). After

Mauro asked for a lawyer, and interrogation ceased, the suspect’s wife asked to see

him, and the police allowed them to meet in the presence of an officer. Id. at 523. The

details of this encounter, as found by the trial court, are important:

The police counseled [Mrs. Mauro] not to [speak with her

husband], but she was adamant about that. They finally

yielded to her insistent demands. The Police Station lacked

a secure interview room. The police justifiably appeared

[sic] for Mrs. Mauro's ... safety, and they were also

concerned about security, both in terms of whether Mr. and

Mrs. Mauro might cook up a lie or swap statements with

each other that shouldn't have been allowed, and whether

some escape attempt might have been made, or whether

there might have been an attempt to smuggle in a weapon.

They really had no idea what to expect along those lines.”

In light of these justifications, the trial court found “that

this procedure was not a ruse, nor a subterfuge by the

police. They did not create this situation [i.e., allowing the

meeting] as an indirect means of avoiding the dictates of

Miranda.

Id. at 523–24. This Court held that these actions did not constitute interrogation

because “[t]here is no evidence that the officers sent Mrs. Mauro in to see her husband

for the purpose of eliciting incriminating statements[,] [but instead] tried to

discourage her from talking to her husband, but finally ‘yielded to her insistent

demands.’” Id. at 528.

In contrast, Officer Ruiz both gave Mr. Medrano’s wife

information he wanted her to convey to Mr. Medrano and twice provided the

opportunity for her to convey it. In Mauro, the conversation between Mauro and his

wife did not in fact result in an admission; it was only because his statements were

coherent, and Mauro ended up claiming insanity at trial, that his statements were

useful to the State. Id. at 520. Here, again in contrast to Mauro, the conversation

police orchestrated between Mr. Medrano and his wife produced exactly what they

hoped it would: Mr. Medrano’s statement, which incriminated him. See Benjamin v.

State, 116 So. 3d 115 (Miss. 2013) (distinguishing Mauro and finding that where the

police intentionally used a relative to deceive the defendant and encourage him to

speak, they had interrogated the defendant within the meaning of Miranda). 79

B. Using Mr. Medrano’s Wife to Convey an Inducement Failed to

Scrupulously Honor His Invocation of the Right to Remain Silent.

In addition to invoking his right to counsel, Mr. Medrano invoked his right to

remain silent. Because the most important safeguard under Miranda was a suspect’s

“right to cut off questioning,” Mosley, 423 U.S. at 104, “the admissibility of statements

obtained after the person in custody has decided to remain silent depends under

Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’” Id.

(citing Miranda, 384 U.S. at 474). Determining whether the right to silence has been

“scrupulously honored” requires considering all of the relevant facts. Id. at 103–04.

Applying the Mosley factors, it is plain that Mr. Medrano’s right to remain

silent was not scrupulously honored. Only the first Mosley factor weighs in favor of

the police; Mr. Medrano was properly warned under Miranda that he was not

obligated to answer questions. However, the rest of the Mosley factors weigh heavily

against the police. First, the time period between Mr. Medrano’s invocation of his

79 “By encouraging Benjamin’s belief that, by talking to the police, he could avoid a

night in jail, and by allowing Benjamin’s mother to speak with him after instructing

her on how Benjamin could reinitiate questioning, the police used psychological ploys

and compelling influences to elicit Benjamin’s statement.” Benjamin, 116 So. 3d at

123.

rights and his interrogation (i.e., the conveying, through his wife, of an inducement

to confess) was very short, compare United States v. Hernandez, 574 F.2d 1362, 1368–

70 (5th Cir. 1978) (holding that officers did not scrupulously honor the suspect’s rights

where questioning resumed 30 to 45 minutes after the suspect’s invocation) with West

v. Johnson, 92 F.3d 1385, 1403 (5th Cir. 1996) (holding that officers did scrupulously

honor the suspect’s rights where questioning resumed thirteen hours after

invocation). Second, Officer Ruiz did not remind Mr. Medrano of his Miranda rights

after bringing his wife in to see him. Third, Mr. Medrano’s subsequent interrogation

was not restricted to a different crime, but was an attempt to get him to speak about

the very crime for which he had been arrested and about which he had invoked his

right to remain silent. Another relevant factor is whether the suspect was “coerced,

threatened, or promised anything for talking with officers,” Maestas v. States, 987

S.W.2d 59, 64 (Tex. Crim. App. 1999), which Mr. Medrano certainly was.

Last, and perhaps most critically, the police could hardly be said to have

“scrupulously honor[ed]” Mr. Medrano’s invocation of his right to remain silent when

they lied to his wife, promising her that Mr. Medrano would be allowed to go home if

he gave them a statement. Officer Ruiz told her this lie expecting that she would

pass it on to Mr. Medrano and hoping she would urge him to make a statement. His

first attempt was immediately only partially successful; Mr. Medrano’s wife did

repeat the lie and urge him to tell them what he knew, but Mr. Medrano did not

immediately do so, and again refused to speak to them. So, police arranged a second

opportunity for his wife to repeat both the lie and her pleas. This series of deceptive,

manipulative actions in no way “scrupulously honor[ed]” Mr. Medrano’s invocation of

his right to remain silent.

C. No valid waiver was obtained.

Because any evidence that the suspect was “threatened, tricked, or cajoled into

a waiver” will demonstrate that the defendant did not voluntarily waive his rights,

Miranda, 384 U.S. at 476, and Mr. Medrano was, as described above, both tricked

and cajoled into a waiver, his “waiver” was not knowing and voluntary. Moran v.

Burbine, 475 U.S. 412, 421 (1986).

Under this Court’s precedents, the merits of this claim as pleaded are plain.

Given the extent of the corroborating evidence of the pleaded facts, the TCCA’s

dismissal of the claim without remanding for factfinding could be justified only if

some procedural rule barred authorizing such factfinding––but as set forth below, no

adequate and independent state-law ground barred review of the merits of Mr.

Medrano’s Miranda claim.

II.

No Adequate and Independent State Ground Bars Review of the

Merits of This Claim.

This Court will not consider an issue of federal law on direct review from a

judgment of a state court if that judgment rests on a state-law ground that is both

“independent” of the merits of the federal claim and an “adequate” basis for the court's

decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); see also Herb v. Pitcairn, 324 U.S.

117 (1945) (stating that the prohibition on reviewing judgments of state courts that

rest on “adequate and independent state grounds” rests in part on limits to this

Court’s jurisdiction). The question of when and how defaults in complying with state

procedural rules can preclude this Court from considering a federal question is itself

a federal question. Johnson v. Mississippi, 486 U.S. 578, 587(1988); Henry v.

Mississippi, 379 U.S. 443, 447 [ (1965).

The TCCA’s refusal to allow further proceedings on Mr. Medrano’s Fifth

Amendment claim plainly rested on an “independent” state ground because the

opinion states, albeit cursorily, that he “failed to satisfy the requirements of [Tex.

Code Crim. Proc.] Article 11.071, § 5(a)” and dismissed the application “as an abuse

of the writ without considering the merits of the claims.” App. 2. As in Cruz v.

Arizona, 598 U.S. 17, (2023), the question therefore is whether the cited state

procedural ground is adequate. As in Cruz, in Medrano and as in at least one other

TCCA subsequent writ case decided this year, it is not.

A state procedural ground is not ‘adequate’ unless the procedural rule is

‘strictly or regularly followed.’” Johnson v. Mississippi, 486 U.S. 578, 587 (1988)

(quoting Barr v. City of Columbia, 378 U.S. 146, 149 (1964)); Hathorn v. Lovorn, 457

U.S. 255, 262–263 (1982). Typically, a violation of a state procedural rule that is

“firmly established and regularly followed” constitutes a state ground “adequate” to

foreclose merits review of a federal claim. In rare circumstances, however, a state

court may apply an otherwise generally sound rule in a way that “renders [it]

inadequate to stop consideration of a federal question.” Cruz, at *5; Lee v. Kemna,

534 U.S. 362, 376 (2002). “Because “novelty in procedural requirements cannot be

permitted to thwart review. . . by those who, in justified reliance upon prior decisions,

seek vindication in state courts of their federal constitutional rights,” NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958), “an unforeseeable and

unsupported state-court decision on a question of state procedure does not constitute

an adequate ground to preclude this Court's review of a federal question.” Bouie v.

City of Columbia, 378 U.S. 347, 354 (1964); Cruz at *6.

Here, comparing the plain language of the statute with the evidence presented

to the jury compels the conclusion that the procedural bar that purportedly grounds

the TCCA’s dismissal of Mr. Medrano’s application is “unforeseeable and

unsupported.” Tex. Code Crim. Proc. art. 11.071, § 5(a) provides three grounds for

authorizing a successive petition, the one pertinent here being that “by a

preponderance of the evidence, but for a violation of the United States Constitution

no rational juror could have found the applicant guilty beyond a reasonable doubt.”

Id. at §5(a)(2). 80 It was undisputed that Mr. Medrano was far from the scene of the

robbery/murders, and absent his confession, no evidence even came close to

establishing his liability as a party. Extrinsic evidence linked him to guns that were

present at the murders, but––without Mr. Medrano’s statement––no evidence

showed that he even knew about the planned marijuana robbery, much less

Mr. Medrano also made the closely related argument that the claim should have

been authorized to proceed under art. 11.071, § 5(a)(3) because by clear and

convincing evidence, no rational juror would have found him to have actually

anticipated the murders that occurred in the course of the planned marijuana

robbery. This ground was satisfied for the same reason that authorization under §

5(a)(2) was warranted: Without Mr. Medrano’s confession, the State had no case

against him. His application further asserted that this claim should be authorized to

proceed under art. 11.071, § (5)(a)(1) because its factual basis was not available at

the time Mr. Medrano filed his first state habeas application, an assertion that is less

plainly correct; some—though not all—of the supporting evidence was unavailable at

the time Mr. Medrano’s first application was filed.

anticipated (or should have anticipated) that murders would transpire at the scene.

Even the testimony of purported gang expert Robert Alvarez—which, as it turned

out, was false 81—did not link Mr. Medrano to the robbery. Thus, because no rational

juror could have convicted Mr. Medrano of capital murder absent his confession, and

because introducing that confession violated the Fifth and Fourteenth Amendments,

authorization manifestly was warranted under § 5(a)(2). Consequently, no valid,

regularly applied independent state ground bars review of the federal question.

In at least one other case this year, the TCCA refused to authorize further

proceedings on a subsequent state habeas application despite clear grounds for doing

so. Like Cruz, Ex Parte Brown, No. WR-26,178-04, 2023 WL 2387836 (Tex. Crim. App.

Mar. 7, 2023), involved “an unforeseeable and unsupported state-court decision on a

question of state procedure.” Cruz at *2, and the TCCA’s refusal was particularly

egregious given Brown’s close resemblance to Cruz. Both cases involve a statute that

permits successive petitions where the claim raised is based on new law. Both

involved a decision from this Court overturning a decision of the very same state court

that then insisted that no new law had thereby been created.

After the Arizona Supreme Court repeatedly held that Arizona's sentencing

and parole scheme did not trigger application of Simmons v. South Carolina, 512 U.S.

154 (1994), this Court summarily rejected that view in Lynch v. Arizona, 578 U.S.

613, 615 (2016) (per curiam) (holding that that it was fundamental error to conclude

Subsequent Application for a Writ of Habeas Corpus, filed October10, 2022, at 4892.

that Simmons “did not apply” in Arizona). Likewise, after the TCCA repeatedly

supplanted the clinical consensus on the definition of intellectual disability with its

“Briseno factors,” this Court intervened, first in Moore v. Texas, 581 U.S. 1 (2017)

(Moore I), and later in Moore v. Texas, 139 S. Ct. 666 (2019) (Moore II). And finally,

the Arizona Supreme Court denied merits review of Cruz’s claim after holding

that Lynch was “not a significant change in the law,” Cruz at *5, and the TCCA

dismissed Brown’s subsequent application with the notation that he had failed to

“satisf[y] the requirements of Article 11.071 § 5,” Brown, 2023 WL 2387836. In

Brown, as in Cruz, no matter what the state court’s words, “It is hard to imagine a

clearer break from the past.” Id. at *6. 82

True, both Medrano’s case and Brown’s differ from Cruz in one respect; in Cruz,

this Court criticized the Arizona Court’s explanation of why the statutory provision

for proceeding on a subsequent application was not met. Such criticism is possible

Moreover, that the purported “abuse of the writ” bar applied in Brown is not

regularly applied is further established by the TCCA’s numerous decisions holding

that Moore I represents a new legal basis under art. 11.071, § 5(a). See, e.g., Ex parte

Butler, No. WR-41,121-03, 2019 WL 4464270 at *2 (Tex. Crim. App. Sept. 18, 2019)

(finding § 5(a)(1) satisfied “in light of Moore I and Moore II”); Ex parte Gutierrez, No.

WR-70,152-03, 2019 WL 4318678, at *1 (Tex. Crim. App. Sept. 11, 2019) (same); “Ex

parte Milam, No. WR-79,322-02, 2019 WL 190209, at *1 (Tex. Crim. App. Jan. 14,

2019) (finding based on recent “ changes in the law pertaining to the issue of

intellectual disability” that Milam had satisfied § 5(a)(1)); Ex parte Guevara, No. WR63,926-03, 2018 WL 2717041, at *1 (Tex. Crim. App. June 6, 2018) (finding § 5(a)(1)

satisfied in light of Moore I); Ex parte Williams, No. WR–71,296–03, 2018 WL

2717039, *1 (Tex. Crim. App. June 5, 2018) (same); see also Ex parte Davis, No. WR40,339-09, 2020 WL 1557291, at *3 (Tex. Crim. App. Apr. 1, 2020) (acknowledging

that although Davis failed to show he was entitled to proceed further on his new

claim, the TCCA had “previously found Moore I to constitute a new legal basis under

Article 11.071, § 5.”). No basis for treating Brown’s claim differently was apparent,

and none was ever articulated by the TCCA.

neither in this case, nor in Brown, but only because the TCCA in neither case offered

any explanation whatsoever for its refusal to authorize further proceedings. Nor can

any be gleaned from the State’s prior pleadings, because at no prior point in the

litigation of this claim (i.e., in response to this subsequent state application or in the

federal habeas action that preceded it) has the State disputed Mr. Medrano’s

assertion that absent the admission of his confession, he literally could not have been

convicted of capital murder. Likewise, the State never disputed in Brown that Mr.

Brown’s ID claim was authorized under § 5(a)(1), though it did at substantial length

contest the merits of that claim.

Under all these circumstances, the purported procedural bar the TCCA

invoked to justify dismissing Mr. Medrano’s Fifth Amendment claim, like the one

cited by the Arizona Supreme Court in Cruz, must be deemed inadequate to deny

federal review of Mr. Medrano’s Miranda claim. It is so “without fair support [and]

so unfounded as to be essentially arbitrary,” raising the question whether it is

“merely a device to prevent a review of the other [federal] ground of the judgment.”

Enterprise Irrigation Dist. v. Farmers Mut. Canal Co., 243 U.S. 157, 165, (1917).

Given the TCCA’s practice of dismissing subsequent applications as “abuse[s] of the

writ” without ever explaining why the statutory conditions have not been met, a

comprehensive list of other cases in which

it has denied relief on inadequate,

purportedly procedural grounds is difficult to compile.

But given the TCCA’s

recalcitrance in Brown to apply this Court’s ruling in Cruz, despite its close parallel

history, and the utter absence of any articulable basis for its purported determination

that Mr. Medrano has failed to establish that absent the Miranda violation, he could

not have been convicted, it is likely that there are more. And it is likely that absent

intervention by this Court, the TCCA will persist in imposing pretextual bars that

operate to frustrate the vindication of federal rights.

Given the inadequacy of TCCA’s purported procedural barrier to consideration

of the merits of Mr. Medrano’s Fifth Amendment claim, and given the plain merits of

that claim under this Court’s precedents, summary reversal is warranted. This Court

should grant certiorari to make plain to state courts that they ignore blatant

constitutional violations at their peril, and that they cannot hide behind pretextual

procedural grounds for denying relief.

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari should be granted.

Respectfully submitted,

Sheri Lynn Johnson

Cornell University

216 Myron Taylor Hall

Ithaca, New York 14853

607-227-1304

slj8@cornell.edu

/s/James Marcus

Counsel of Record

Member, Supreme Court Bar

James William Marcus