# Amicus Curiae Brief — Herrera v. Collins

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0311%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 506 U.S. 390

## Text

OF THE CLERK

Iu the Supreme Court of the United

OCTOBER TERM, 1992 hie

LEONEL TORRES HERRERA, PETITIONER
Vv.

JAMES A. COLLINS, DIRECTOR, TEXAS
DEPARTMENT OF JUSTICE, INSTITUTIONAL DIVISION

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

KENNETH W. STARR
Solicitor General

ROBERT S. MUELLER, III
Assistant Attorney General
JOHN G. ROBERTS, JR.
Deputy Solicitor General
PAUL J. LARKIN, JR.
Assistant to the Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 514-2217

"BEST AVAILABLE COPY) ™

QUESTION PRESENTED
The United States will address the following question:
Whether the Cruel and Unusual Punishments Clause
of the Eighth Amendment, or the Due Process Clause of
the Fifth and Fourteenth Amendments, entitles a_pris-
oner to obtain federal habeas corpus review of his con-
viction on the basis of newly discovered evidence.

(1)

TABLE OF CONTENTS

Page
Interest of the United States ons. 1
EE EE neem 2
Summary ofargument............ aiamionia = keene 7
Argument:
The court of appeals correctly denied petitioner
relief on his claim of newly discovered evidence. _ x
I. The Eighth Amendment does not regulate the
factfinding process of determining a defendant's
eee i)
Il. The Due Process Clause does not guesantes | a
prisoner a judicial remedy for a claim of newly
discovered evidence... 12
A. Due process does not require ‘that. judicial
review be available for a claim of newly
discovered evidence... 13
1. A State need not provide a judicial eum
for resolution of a claim of newly dis-
covered evidence 13
2. A State can set a time limit for peesent-
ing to a court a claim of newly discovered
SSS REIS 21
B. Petitioner cannot establish his innocence 24
Conclusion 26
ES Ee la
EEE eee a 3a
TABLE OF AUTHORITIES
Cases :
Abney V. United States, 431 U.S. 651 (1977)... 15
Aldridge Vv. Commonwealth, 4 Va. 447 (1824) 11
Andrews V. Swartz, 156 U.S. 272 (1895) 14, 15, 16
Baker Vv. Carr, 369 U.S. 186 (1962)... : 20
Beathard v. State, 767 S.W.2d 423 (Tex. Crim.
EIS I 23

IV
Cases—Continued :

Bell v. Wolfish, 441 U.S. 520 (1979)

Bergemann V. Backer, 157 U.S. 655 (1895)

Berry V. State, 10 Ga. 511 (1851)

Binder, Ex parte, 660 S.W.2d 103 (Tex. Crim.
App. 1983)

Blodgett, In re, 112 S. Ct. 674 (1992)

Blystone v. Pounsalvania. 494 U.S. 299 (1990)

Boyd v. Puckett, 905 F.2d 895 (5th Cir.), cert.
denied, 111 S. Ct. 526 (1990) .

Boyde V. California, 494 U.S. 370 (1990)

Brady V. Maryland, 373 U.S. 83 (1963)

Byrd Vv. Armontrout, 880 F.2d 1 (8th Cir. 1989),
cert. denied, 494 U.S. 1019 (1990) ,

Callis v. State, 756 S.W.2d 826 (Tex. App. Ist
Dist. 1988) .

Carter V. Mlinois, 329 US. 173 (1946)

Coker Vv. Georgia, 433 U.S. 584 (1977)

Commonwealth Vv. Hitchings, 71 Mass. 482 (1855)

Connecticut Board of Pardons v. Dumschat, 452

U.S. 458 (1981)
Cummins v. People, 42 Mich. 142, 3 N.W. 305
(1879) .

Delo v. Stokes, 495 US. 920 (1990) _

District of Columbia v. Clawans, 300 U.S. 617
Se a ae

Drew Vv. State, 743 S.W.2a 207 (Tex. Crim. App.
1987)

Duggard v. State, 688 s. W 2d 524 (Tex. Crim.
App. 1985) . .

Estelle v. Dorrough, 420 US. 534 (1975)

Estelle v. Gamble, 429 U.S. 97 (1976)

Evitts v. Lucey, 469 U.S. 387 (1985)

Ford Vv. Wainwright, 477 U.S. 399 (1986)

Francis V. Resweber, 329 U.S. 459 (1947)

Frank Vv. Mangum, 237 U.S. 309 (1915)

Furman Vv. Georgia, 408 U.S. 238 (1972)

Garland, Ex parte, 71 U.S. (4 Wall.) 333 (1867).

Garvey V. Whitaker, 48 La. 527, 19 So. 457
(1896)

Gomez V. United States District Court, 112 S. Ct.
Ee Ana OS Re

Cases—Continued : Page
Gordon, Ex parte, 66 U.S. (1 Black) 503 (1862) 15
Gregg V. Georgia, 428 U.S. 153 (1976) _. 10, 12
Griffin Vv. Mlinois, 351 U.S. 12 (1956) 15
Harmelin V. Michigan, 111 S. Ct. 2680 (1991) 10, 12

Herrera V. Collins:

904 F.2d 944 (5th Cir.), cert. denied, 111
S. Ct. 307 (1990). ) 2, 3,
950 F.2d 1029 (5th Cir. 1992) . re
No. M-92-30 (S.D. Tex. Feb. 17, 1992) _
954 F.2d 1029 (5th Cir. 1992)
1128S. Ct. 1074 (1992) 4,
Herrera ¥. McCotter, No. B-85-343 (S.D. Tex.
Oct. 23, 1989) ;
Herrera Vv. State, 682 S.W2d 313 (Tex. Crim.
App. 1984), reh’g denied (Jan. 16, 1985), cert.
denied, 471 U.S. 1131 (1985) .....2, 3, 26, 26
Herrera, Ex parte:

No. 12,848-02 (Tex. Crim. App. Aug. 2,

AaQan

os

1985) 4
No. 81-CR-672-C (Tex. 197th Jud. Dist. Jan.
14, 1991) 4, 6-7

819 S.W.2d 528 (Tex. Crim. App. 1991), reh’g
overruled (Sept. 18, 1991), cert. denied, 112

S. Ct. 1074 (1992) Se Ft
Hobbs v. State, 133 Ind. 404, 32 N.E. 1019

(1893) 11
Houston Lawyers’ Ass'n V. Teras Attorney Gen-

eral, 111 S. Ct. 2376 (1991) = 20
Hovey Vv. Elliott, 167 U.S. 409 (1897) ss 16
Howell v. United States, 172 F.2d 213 (4th Cir. ),

cert. denied, 337 U.S. 906 (1949) | a
Hudson V. McMillian, 112 S. Ct. 995 (1992) | 12
INS V. Abudu, 485 U.S. 94 (1988) _ bist 25
Illinois Vv. Allen, 397 US. 337 (1970) - 20
Jackson Vv. United States, 102 F. 473 (9th Cir.

1900) . ———— 11
Jackson Vv. Virginie, 443 U.S. 307 (1979) i
Jones V. Barnes, 463 U.S. 745 (1983) sis 15
Kemmiler, In re, 1386 U.S. 436 (1890) is 11

Kohl v. Lehiback, 160 U.S. 293 (1895) 15

Vl

Cases—Continued : Page
Kuhimann Vv. Wilson, 477 U.S. 436 (1986) 17
Lindsey V. Normet, 405 U.S. 56 (1972) 15
Luckenbach S.S. Co. ¥v. United States, 272 US.

533 (1926) 15
May, Ex parte, 717 S.W.2d 84 (Tex. Crim. App.

1986) , 24
MeCleskey Vv. Zant, 111 8S. Ct. 1454 (1991) 6, 16,17
McKane V. Durston, 153 U.S. 684 (1894). ; 14
Medina v. California, No. 90-8370 (June 22,

1992) 16
Mesarosh v. United States, 352 US. 1 (1956) 25
Minnesota Vv. Clover Leaf Creamery Co., 449 US.

456 (1981) | 20
Murphy V. Massachusetts, 177 Us 155 (1900) 15
Murray V. Carrier, 477 U.S. 478 (1986) 17
Murray Vv. Giarratano, 492 U.S. 1 (1989) 15, 16
National Union of Marine Cooks & Stewards vy.

Arnold, 348 U.S. 37 (1954) 15, 16
Ohio V. Akron Metro. Park Dist., 281 US. 74

(1930) 15
Ortwein Vv. Schwab, 410 US. 656 (1973) 15
Patterson V. New Yor':, 432 U.S. 197 (1977) 16
Pennsylvania V. Finley, 481 U.S. 551 (1987) 15, 16
Penry Vv. Lynaugh, 492 U.S. 302 (1989) 12
Powell Vv. Teras, 392 U.S. 514 (1968) 12
Public Citizen V. Department of Justice, 491 US.

440 (1989)... ; 20
Reetz Vv. Michigan. 188 US. 505 (1903) . 15
Robinson V. California, 370 U.S. 660 (1962) 12
Rogers Vv. Peck, 199 U.S. 425 (1905) 18
Ross Vv. Moffitt, 417 U.S. 600 (1974) _. 15
Sawyer Vv. Whitley, No. 91-6382 (June 22, 1992) 1, 16, 19,

25
Schick v. Reed, 419 U.S. 256 (1974). 19, 20
Shaver Vv. Ellis, 255 F.2d 509 (5th Cir. 1958) 18
Smith Vv. Murray, 477 U.S. 527 (1986) 16-17
Smith Vv. Phillips, 455 U.S. 209 (1982) 17
Sparf v. United States, 156 U.S. 51 (1895) 21
Stanford v. Kentucky, 492 U.S. 361 (1989) | 12

er State, 490 S.W.2d 828 (Tex. Crim. “——
1972) . a 7 18

VII

Cases—Continued :

State v. Becker, 3 8.D. 29, 51 N.W. 1018 (1892)

State v. Driver, 78 N.C. 423 (1878)

State v. White, 44 Kan. 514 (1890) .

State v. Williams, 77 Mo. 310 (1883) -

Stockton Vv. Virginia, 852 F.2d 740 (4th Cir. 1988),
cert. denied, 489 U.S. 1071 (1989)

Stone V. Powell, 428 U.S. 465 (1976)

Storti Vv. Massachusetts, 183 U.S. 138 (1901)

Swain V. Pressley, 430 U.S. 372 (1977)

Swindle Vv. Davis, 846 F.2d 706 (11th Cir. 1988)

Taylor V. Illinois, 484 U.S. 400 (1988)

Tison V. Arizona, 481 U.S. 137 (1987)

Townsend V. Sain, 372 U.S. 293 (1963)

United States v. Aqurs, 427 U.S. 97 (1976)

United States v. Cody, 529 F.2d 564 (8th Cir.
1976) .

United States v. Cook, 705 F.2d 350 (9th Cir.
1983)

United States v. Johnson, 327 US. 106 (1946)

United States v. Kaplan, 101 F. Supp. 7 (S.D.N.Y.
1951)

United States v. Kicin, 86 US. 3 Wall.) 128
(1872)

United States v. MacCollom, 426 U.S. 317 (1976)

United States vV. Mayer, 235 U.S. 55 (1914)

United States v. Miliet, 804 F.2d 853 (5th Cir.
1986).

United States v. Robinson, 361 US. 20) (1960)

United States ¥. Smith, 331 U.S. 469 (1947)

United States ¥. Spector, 888 F.2d 583 (8th Cir.
1989) .

United States v. Tucker, 836 F.2d 334 (7th Cir.),
cert. denied, 488 U.S. 855 (1988) . -

Vasquez V. Harris, 112 8. Ct. 1713 (1992)

Wainwright v. Sykes, 4833 US. 72 (1977).

Walker v. Lockhart, 763 F.2d 942 (8th Cir. 1985),
cert. denied, 478 U.S. 1020 (1986)

Wells, Er parte, 59 U.S. (18 How.) 307 (1856)

Whitmore v.'State, 570 S.W.2d 889 (Tex. Crim.

2 SS a
Whitten v. State, “47 Ga. 297 Ee —

SaaS & SB

ash 8 BRS

Vill
Cases—Continued : Page
Wilkerson Vv. Utah, 99 U.S. 130 (1879) __. 11
Williams vy. State, 780 S.W.2d os (Tex. Crim.

App. 1989) 23
Willis v. Tennessee, 296 US. 533 (1935). 15
Willy v. Coastal Corp., 112 8. Ct. 1076 (1992) 16
Woodard Vv. Hutchins, 464 U.S. 377 (1984) 19
Wright v. West, No. 91-542 (June 19, 1992) 1, 26

Constitution, statutes, and rules:
U.S. Const. :

Art. 1, § 9, Cl. 2 (Suspension Clause) 13
Art. II, § 2, C1. 1 (Pardon Clause) 19, 20
Art. I11,$2,C1.3....... 7 10
Amend. V . . aarie 9,10
Due Process Clause 7,9, 12, 13, 15, 16
Amend. VIII eee ees = 1,9, 10, 1t
Cruel and Unusual Puntsheents Clause 7, 10,
11
Tex. Const. Ann. art. IV, § 11 (Vernon 1984). 18

Tex. Code Crim. Proc. Ann. art. 4801 (Vernon

1979) . 18
Act of Sept. 24, 1789, ch. 20, §17, 1 Stat. 83

(Judiciary Act of 1789) i allaaes - 21
28 U.S.C. 2244 (b) . 16
28 U.S.C. 2255 __. oe 1
Virginia Declaration of Rights of 1776, $9 11
Bill of Rights of 1689, 1 Wm. & Mary, Sess. 2, ch.

2 eS Se 10
Criminal Appeals Rules:

Rule 2(3), 292 U.S. 659, 662 (1934) _ 21

Rule 2(3), 304 U.S. 592, 592 (1938) “(8
U.S.C. 688 (1940)) - - a 21

Fed. R. Crim. P.:

Rule 33 ; “1, 22, 28
Rule 45 ieee scisedinhiciaiiiiamiendt 22
Rule 45(b) Oe ee ae ais 22
~ Fed. R. Evid. 804(b) (3) _ 26

IX

Rules—Continued : Page
Tex. R. App. P.:

ES salt aaa 24

ES SAE so, 6

Advisory Committee, Federal Rules of Criminal
Procedure, Federal Rules: Preliminary Draft
(1942) . , anil

Rule 31(c) .
Rule 35...

Advisory Committee Report, 327 US. 821, 855-
856 (1944) nme : |
Rule 33
Rules 34-35
Rule 35.

SSSS REL

Miscellaneous :

Barron, Proposed Rules of Procedure in Criminal
Cases, 2 F.R.D. 211 (1941)

Bedau & Radelet, Miscarriages of Justice in
Potentially Capital Cases, 40 Stan. L. Rev. 21
(1987) 18

Cummings, The Third Great Adventure, 2 F.R.D.

283 (1943) jemand 28

Friendly, /s Jnnocence Irrelevant? Collateral At-
tack on Criminal Judgments, 38 U. Chi. L. Rev.

142 (1970) .............. 14

Grannuci, “Nor Cruel and Unusual Punishments
Inflicted”: The Original Meaning, 57 Calif. L.

Rev. 839 (1969) . 11

Markman & Cassell, Protecting the Innocent: A
Response to the Bedau-Radelet Study, 41 Stan.

L. Rev. 121 (1988) 18
8A J. Moore et al., Moore's Federal Practice (2d

a RTS 23, 25
Orfield, New Trial in Federal Criminal Cases, 2

Villanova L. Rev. 293 (1957) 21, 22
Riddell, New Trial at the Common Law, 26 Yale

LJ. 49 (1916) 21

Riddell, New Trial in Present Practice, 27 Yale
| SSE vo a 21

Miscellaneous—C ontinued : Page

25 Texas Jur. 3d Newly Discovered Evidence
(Supp. 1992) 23-24, 25

M. Wilken & N. Triffin, Drafting History of the
Federal Rules of Criminal Procedure (1991):

Vol. 1 22
Vol. 4 22
Vol. 7 pent eS

8 C. Wright, Federal Practice and Procedure (2d
ed. 1982) oa 23, 25

Iu the Suprenv Court of the United States

OCTOBER TERM, 1992

No. 91-7328
LEONEL TORRES HERRERA, PETITIONER
Uv.

JAMES A. COLLINS, DIRECTOR, TEXAS
DEPARTMENT OF JUSTICE, INSTITUTIONAL DIVISION

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case concerns the proper disposition of a petition
for a writ of habeas corpus in which a prisoner claims
that newly discovered evidence proves his innocence. The
Court’s resolution of this case will affect the federal gov-
ernment. Ruie 33, Fed. R. Crim. P., governs a defend-
ant’s claim that he is entitled to a new trial due to newly
discovered evidence. Federal prisoners also can collater-
ally attack their convictions under 28 U.S.C. 2255. The
United States also has participated as amicus curiae in
other cases involving the scope of habeas corpus review.
E.g., Sawyer Vv. Whitley, No. 91-6382 (June 22, 1992);
Wright v. West, No. 91-542 (June 19, 1992).

(1)

2

STATEMENT

1. At approximately 10:40 p.m. on September 29,
1981, the body of Texas Department of Public Safety
Officer David Rucker was discovered along a highway 6.2
miles east of Los Fresnos, Texas. Officer Rucker had
been killed by a gunshot wound to the head. There were
no witnesses to the crime, but petitioner’s social security
ecard was discovered near the body. About ten minutes
after the shooting, Los Fresnos police officer Enrique
Carrisalez stopped for speeding a car traveling west from
the point where Officer Rucker’s body was found. Officer
Carrisalez’s headlights illuminated the driver’s side of
the stopped car. Officer Carrisalez radioed the driver’s
license number to the dispatcher before approaching the
car. Herrera v. State, 682 S.W.2d 313, 316 (Tex. Crim.
App. 1984), cert. denied, 471 U.S. 1131 (1985); Herrera
Vv. Collins, 904 F.2d 944, 945-946, 948 (5th Cir.), cert.
denied, 111 S. Ct. 307 (1990).

As Officer Carrisalez walked toward the car, the driver
stepped toward the officer and fired one or more shots.
One shot hit Carrisalez in the chest; he died nine days
later from the wound. Enrique Hernandez, a civilian
who had accompanied Officer Carrisalez that night, wit-
nessed the shooting. Hernandez was about 15 feet from
Officer Carrisalez’s assailant, and, although he took cover
for part of the time, he looked directly at the assailant
for approximately 14 seconds. Hernandez saw Officer
Carrisalez fire four shots as the other car sped away.
682 S.W.2d at 316; 904 F.2d at 946, 948.

Hernandez radioed a description of the suspect’s auto-
mobile. Hernandez later went to a local police station
and was shown six photographs. Hernandez selected three
photographs and said that any one could have been the
killer; petitioner’s photograph was among the ones se-
lected. While at the hospital, Officer Carrisalez identified
petitioner from a mug shot. Over the course of the next
few days, Hernandez again identified petitioner from the
mug shot that had been shown to Officer Carrisalez, from

3

a second photographic display, and from a line-up. 682
S.W.2d at 316-317; 904 F.2d at 946.

Petitioner was arrested several days after the shoot-
ing. He had with him envelopes on which he had written
a letter essentially admitting to killing Officer Carri-
salez.' Other evidence also tied petitioner to the murders.
682 S.W.2d at 316; 904 F.2d at 946."

2. Petitioner was convicted and sentenced to death for
the capital murder of Officer Carrisalez.* Petitioner ap-
pealed his conviction and sentence to the Texas Court of
Criminal Appeals, which affirmed. 682 S.W.2d 313
(1984), reh’g denied (Jan. 16, 1985). Petitioner argued,
inter alia, that the pre-trial and in-trial identifications
by Hernandez were unreliable and that Officer Carri-
salez’s identification should not have been admitted as a

'“When an officer attempted to interrogate |petitioner, he}
demurred that ‘it was all in the letter’ and suggested to police that
they read a letter if they wanted to know what happened. He then
invoked his Sixth Amendment right to counsel. Police then in-
ventoried [| petitioner’s| belongings and located six envelopes upon
which [he] had written a letter essentially admitting and offering
an explanation for both police killings.” 682 S.W.2d at 317; see 904
F.2d at 949 n.6 (referring to “a letter written by [petitioner] on
the back of several envelopes in which he essentially admits to the
killing of both officers’). The letter is reprinted at App. B, infra.

* Local law enforcement officers who knew petitioner concluded
that the description of the suspect and automobile matched him and
a car he was known to drive. The officers obtained an arrest warrant
for petitioner and went to his house. There, the officers found the
car, but not petitioner. Although the car was registered to peti-
tioner’s girlfriend, she did not own a set of keys for the car. More-
over, petitioner's girlfriend told the police that petitioner drove the
car and that she had not seen the car since early in the morning
before the shooting, when petitioner took the car. Finally, the ear
keys were found in petitioner’s pants when he was arrested. Blood
was found on the left side of petitioner’s car, the driver's seat, and
the floorboard. Forensic tests showed that the blood was the same
type as Officer Rucker’s and differed from petitioner’s. 682 S.W.2c
at 316-317, 321.

% Petitioner later pleaded guilty to the murder of Officer Rucker.
J.A. 4.

4

dying declaration. The court rejected those claims, and
this Court denied certiorari. 471 U.S. 1131 (1985).

3. Petitioner next filed an application for a writ of
habeas corpus in state district court. The court denied
relief, and the Texas Court of Criminal Appeals affirmed.
Ex parte Herrera, No. 12,848-02 (Tex. Crim. App. Aug.
2, 1985).

Petitioner thereafter filed a petition for a writ of
habeas corpus in federal district court. Petitioner again
claimed that the identifications made by Hernandez and
Officer Carrisalez were unreliable. The district court
rejected that claim and denied the petition. Herrera V.
McCotter, No. B-85-343 (S.D. Tex. Oct. 23, 1989). The
Fifth Circuit affirmed. 904 F.2d 944 (1990). This Court
again denied certiorari. 111 8. Ct. 307 (1990).

4. Petitioner filed a second habeas petition in state
court. The court denied the application, finding that “no
evidence at trial remotely suggest|ed] that anyone other
than | petitioner] committed the offense.” Ex parte Her-
rera, No. 81-CR-672-C (Tex. 197th Jud. Dist. Jan. 14,
1991); J.A. 10. The Texas Court of Criminal Appeais
affirmed on the basis of the trial court’s findings and con-
clusions. 819 S.W.2d 528 (1991), reh’g overruled (Sept.
18, 1991); J.A. 13-27. This Court again denied cer-
tiorari. 1128. Ct. 1074 (1992).

In the meantime, on February 18, 1992, petitioner filed
his second federal habeas petition. His principal claim
was that he did not murder Officer Carrisalez. Petitioner
alleged that Officer Rucker, the Hidalgo County sheriff,
petitioner’s brother Raul Herrera, Sr., petitioner’s father,
and petitioner were all involved in drug trafficking; that
Raul Sr. killed Officer Rucker in a disagreement over drug

‘Two judges dissented from the decision to uphold petitioner’s
sentence, but not from the decision to uphold his conviction. 819
S.W.2d at 529-532 (Clinton, J., dissenting) ; id. at 528-529 ( Maloney,
J., dissenting).

5

trafficking; that Raul Sr. also killed Officer Carrisalez;
and that law enforcement officers knew these facts, but
did not disclose them to the defense before trial or sen-
tencing, in violation of Brady v. Maryland, 373 U.S. 85
(1963). Petition for a Writ of Habeas Corpus 25-27
(Feb. 18, 1992).

To support those allegations, petitioner submitted four
affidavits. Three affiants alleged that Raul Sr., who was
dead when the affidavits were filed, had admitted mur-
dering Officer Carrisalez. Raul Jr., petitioner’s nephew
and (according to counsel for respondent) a fellow in-
mate, claimed to be an eyewitness to the murders, and
said that Raul Sr., not petitioner, was responsible.
Habeas Petition App. Exhs. 10-11, 15-16.°

5 Raul Jr. alleged that he and one Chavello Lopez, a business
partner and friend of Raul Sr.’s, were in petitioner’s car with
Raul Sr. on the night of the shootings; that Raul Sr. shot the
officers: that petitioner was not involved in the shootings; that he
told a police officer that his father, Raul Sr., not petitioner, shot
the officers; that the officer told him to remain silent about the
matter; and that petitioner’s lawyers had not previously asked him
about the case. Habeas Petition 30-31; id. App. Exh. 16. Petitioner
also submitted an affidavit, dated December 11, 1990, from Hector
Villareal, counsel for Raul Sr. Villareal alleged that in 1984, while
he was representing Raul Sr. on a charge of attempted murder, Raul
Sr. told him that he, not petitioner, had shot the officers; that Raul
Sr., Officer Rucker, and the Hidalgo County sheriff were all involved
in drug trafficking: that after petitioner was convicted Raul Sr.
started blackmailing the sheriff, because the sheriff knew that peti-
tioner was innocent; that Raul Sr. was murdered thereafter; and
that, according to Villareal, Raul Sr. was murdered by one Jose
Lopez, who also was involved in drug trafficking with the sheriff,
to silence Raul Sr. Habeas Petition 31-33; id. App. Exh. 10. In
another affidavit, one Juan Palacios alleged that, while he and Raul
Sr. were in jail together, Raul Sr. confessed to him that he had
murdered the officers. Habeas Petition 33-34; id. App. Exh. 11.
Finally, in an affidavit dated January 3, 1991, one Jose Ybarra
alleged that Raul Sr. spontaneously told Ybarra outside a bar one
night during the summer of 1983 that he had murdered the officers.
Id. App. Exh. 15.

6

The district court dismissed most of petitioner’s claims
as an abuse of the writ under McCleskey v. Zant, 111 S.
Ct. 1454 (1991). The court ordered an evidentiary hear-
ing on the Brady issue and on petitioner’s claim that he
did not murder Officer Carrisalez. The court stayed peti-
tioner’s execution pending the hearing. Herrera v. Col-
lins, No. M-92-30 (S.D. Tex. Feb. 17, 1992); J.A. 28-53."

Respondent appealed, and the Fifth Circuit vacated the
stay of execution. 954 F.2d 1029 (1992); J.A. 59-69.
The court found “disingenuous” petitioner’s attempt to
couch his actual innocence claim as a Brady violation,
since there was no indication that the State had con-
cealed evidence and since the evidence petitioner cited
was equally available to him. J.A. 64. The court also
ruled that petitioner’s affidavits did not raise a substan-
tial claim for relief. Relying on Townsend v. Sain, 372
U.S. 293, 317 (1963), the court held that newly dis-
covered evidence claims are not cognizable in federal
habeas corpus. J.A. 67. The court vacated the stay of
execution and certificate of probable cause. J.A. 69.’

® Initially, the court dismissed petitioner’s Brady claim on the
ground that there were insufficient facts to support it. J.A. 37-38.
On reconsideration, the court granted a hearing on that claim and
the actual innocence claim. J.A. 54-55.

7 After the court of appeals vacated the stay, petitioner filed a
rehearing petition to which he attached a new affidavit by Raul Jr.
In it, Raul Jr. alleged that, during petitioner’s trial, various law
enforcement officers and the Hidalgo County sheriff, frightened that
their drug trafficking would be exposed, came to his house; told
Raul Sr. not to say what had happened the night of the shootings:
and also threatened Raul Jr.’s family. Aff. of Raul Herrera, Jr.,
2-3 (Feb. 17, 1992), attached to Petition for Rehearing (Feb. 19,
1992).

In the meantime, the district court dismissed without prejudice
petitioner’s actual innocence claim, so that he could present it to
the state courts. (Texas courts will not consider a claim that is
under consideration in a federal habeas corpus petition.) The state
district court rejected petitioner’s claim, finding that “[t]he newly
related evidence, if it existed at the time of trial, was available to
and discoverable by the defense through reasonable diligence.” Ev

7

Petitioner sought review in this Court. The Court
granted the certiorari petition but denied a stay of execu-
tion. 112 S. Ct. 1074 (1992). The Texas courts later
stayed petitioner’s execution.

SUMMARY OF ARGUMENT

I. Petitioner claims that the Cruel and Unusual Pun-
ishments Clause bars his execution because he has a
colorable claim of actual innocence. But that Clause
only limits the penalty imposed on a convicted defend-
ant; other clauses, such as the Due Process Clause, regu-
late the trial process. Because petitioner’s claim goes to
his conviction rather than his sentence, the Eighth
Amendment is inapplicable.

II. Petitioner’s claim is that the Due Process Clause
requires that there be judicial review of a claim of actual
innocence based on newly discovered evidence. But it is
well established that the Clause does not guarantee a
defendant the right to appeal a trial court judgment of
conviction, let alone collaterally to challenge a conviction.
If a State does allow a challenge to a conviction based on
newly discovered evidence, nothing in the Due Process
Clause bars the State from enforcing its time limit on
judicial consideration of such challenges. Nor would a
contrary rule benefit petitioner, since the affidavits he
filed, viewed in light of the overwhelming proof of his
guilt, would not require a rational jury to acquit him at
a retrial.

mm

parte Herrera, No. 81-CR-672-C (Tex. 197th Jud. Dist. Feb. 19,
1992), slip op. 1. The court also ruled that “[t]here are no mate-
rial, previously unresolved issues of fact which are material to the
legality of [petitioner’s| conviction and sentence, and an evidentiary
hearing is not required. [His] allegations do not provide a basis
for relief under Brady v. Maryland, 373 U.S. 83 (1963).” Slip op.
1. Petitioner then filed a third habeas petition in federal court, to
which Raul Jr.’s new affidavit was attached as Exhibit 21. Petition
for a Writ of Habeas Corpus, et al. (Feb. 19, 1992).

8

ARGUMENT

THE COURT OF APPEALS CORRECTLY DENIED
PETITIONER RELIEF ON HIS CLAIM OF NEWLY
DISCOVERED EVIDENCE

Nearly three decades ago in Townsend v. Sain, 372
U.S. 293 (1963), Chief Justice Earl Warren, writing for
the Court, explained that a habeas petitioner’s claim of
newly discovered evidence does not entitle him to relief
unless he can link that evidence to a constitutional vio-
lation. In Chief Justice Warren’s words, id. at 317 ‘em-
phasis added) :

Where newly discovered evidence is alleged in a
habeas application, evidence which could not reason-
ably have been presented to the state trier of facts,
the federal court must grant an evidentiary hearing.
Of course, such evidence must bear upon the consti-
tutionality of the applicant’s detention; the existence
merely of newly discovered evidence relevant to the
quilt of a state prisoner is not a ground for relief
on federal habeas corpus.

The question is whether the Court’s statement in
Townsend is still good law.” Put differently, does the
Constitution require that a prisoner have the right to
seek judicial review of a claim of newly discovered evi-
dence, instead of being required to seek relief in the
clemency process? In our view, the Constitution does not
guarantee a prisoner such a right.

® Since Townsend, the federal courts have held that a state
prisoner cannot obtain habeas corpus relief based simply on a claim
of newly discovered evidence. See, ¢.g., Boyd v. Puckett, 905 F.2d
895 (5th Cir.), cert. denied, 111 S. Ct. 526 (1990); Stockton v.
Virginia, 852 F.2d 740, 749 (4th Cir. 1988), cert. denied, 489 U.S.
1071 (1989); Swindle v. Davis, 846 F.2d 706 (11th Cir. 1988);
Walker v. Lockhart, 763 F.2d 942, 960 (8th Cir. 1985) (en banc),
cert. denied, 478 U.S. 1020 (1986). That rule applies in capita!
cases. See Byrd v. Armontrout, 880 F.2d 1, 8 (8th Cir. 1989), cert.
denied, 494 U.S. 1019 (1990). The cases petitioner cites, Br. 39-40
n.52, involved recanted or allegedly perjurious testimony.

9

I. THE EIGHTH AMENDMENT DOES NOT REGU-
LATE THE FACTFINDING PROCESS OF DETER-
MINING A DEFENDANT'S GUILT OR INNOCENCE

From the premise that the execution of an innocent
person violates the Eighth Amendment, petitioner argues
that the Eighth Amendment grants a prisoner the right
to judicial relief from the death penalty based on newly
discovered evidence of his innocence. Ironically, while
petitioner contends that he did not kill Officer Carrisalez,
petitioner does not challenge his conviction, only his sen-
tence. As he puts it, Br. 39-40 n.52:

Petitioner’s challenge is to his unjust execution, not
his conviction|.| * * * |A] remedy that may be un-
available to an imprisoned person may be available
for a death sentenced inmate. * * * Petitioner is as-
serting that it violates the Eighth and Fourteenth
Amendments to execute him because he is innocent.

Those statements illustrate the confusion in petitioner’s
theory. The gravamen of petitioner’s claim is that newly
discovered evidence shows that he did not murder Officer
Carrisalez. If petitioner’s theory and factual allegations
are correct, petitioner should be asking for a new trial,
not just a sentence less than death, because the newly
discovered evidence would undermine the validity of his
conviction. For that reason, the question presented is not
limited to capital cases, as petitioner suggests. If a con-
demned prisoner can challenge his conviction due to
newly discovered evidence, then so too can a prisoner
serving a term of years.

That conclusion also affects the analysis of petitioner’s
claim. The Due Process Clause bars the government from
punishing someone unless and until it has proved his
guilt beyond a reasonable doubt in accordance with Fifth
and Sixth Amendment guarantees. By contrast, the
Eighth Amendment, as relevant here, assumes that a
person has been validly convicted. Because petitioner’s
claim is ultimately that he is innocent, the Eighth
Amendment has no application to this case.

10

1. The Eighth Amendment prohibits the imposition of
“le|xcessive bail,” “excessive fines,” and “cruel and un-
usual punishments.” The text speaks to pretrial and
post-trial matters, rather than to the trial itself. Other
provisions of the Constitution regulate the process of a
criminal trial. Article III, § 2, Cl. 3, guarantees a de-
fendant the right to a jury trial in the State where the
crime was committed, or where Congress directs, if the
crime was committed outside the States. The Fifth and
Sixth Amendments regulate trials in various ways. They
require an indictment by a grand jury for a capital or
“otherwise infamous crime” ‘generally any felony) ; no-
tice of the charges: a speedy and public jury trial in the
State and district where the offense was committed; the
assistance of counsel, compulsory process, and confronta-
tion at trial; as well as protection against twice being
placed in jeopardy of life or limb for the same offense.
These provisions, not the Cruel and Unusual Punish-
ments Clause, regulate the trial process; the latter simply
limits the punishment that can be imposed on someone
who is validly convicted of a crime. If a person has not
been validly convicted the question is not whether he is
being punished consistent with the Eighth Amendment;
he may not be punished at all.

2. The history of the Eighth Amendment is consistent
with the evident meaning of the text. The phrase “cruel
and unusual punishments” was used in the Bill of Rights
of 1689, 1 Wm. & Mary, Sess. 2, ch. 2. While historians
disagree over the precise events that triggered the adop-
tion of that provision, they agree that it was directed
against unauthorized and perhaps grossly disproportion-
ate penalties. The Cruel and Unusual Punishments
Clause was taken verbatim from the English Bill of
Rights of 1689. It was likely adopted to meet complaints
voiced in the state ratifying conventions that the Consti-
tution did not limit the types of punishments that Con-
gress could impose. See Harmelin v. Michigan, 111 S. Ct.
2680, 2687-2691 (1991) ‘opinion of Sealia, J.); Gregg v.
Georgia, 428 U.S. 153, 169-170 n.17 (1976) (lead opin-

11

ion: ; Granucci, “Nor Cruel and Unusual Punishments
lnflicied”: The Original Meaning, 57 Calif. L. Rev. 839
(1969). Thus, the history of the Clause reveals that it
was designed to regulate the punishment that could be
imposed on a person validly convicted of a crime, not the
determination of guilt or innocence.

3. That conclusion is buttressed by the judicial inter-
pretations of the Eighth Amendment and its state coun-
terparts. State courts in the 19th century construed such
provisions as prohibiting only certain types of punish-
ment.” For example, the General Court of Virginia read
Section 9 of the Virginia Declaration of Rights of 1776,
the direct predecessor to the Cruel and Unusual Punish-
ments Clause, as “merely applicable to the modes of
punishment” and as “declaim|ing|] against the wanton
cruelty of many of the punishments practised in other
countries.” Aldridge v. Commonwealth, 4 Va. 447, 449-
450 (1824). Such decisions did not construe state con-
stitutional versions of the Eighth Amendment as regulat-
ing the trial or post-trial processes.

This Court’s cases are similar. Initially, they involved
the issue whether a particular mode of punishment, by
its nature, was cruel and unusual and thus could never
be imposed on a defendant convicted of any offense, how-
ever heinous."” More recently, the overwhelming major-
ity of the Court’s cases have focused on the process by

* See, ¢.¢., Commonwealth v. Hitchings, 71 Mass. 482, 486 (1855) ;
Whitten v. State, 47 Ga. 297, 301 (1872); State v. Driver, 78
N.C. 423 (1878); Cummins v. People, 42 Mich. 142, 3 N.W. 305
(1879); State v. Williams, 77 Mo. 310 (1883); State v. White, 44
Kan. 514, 516-521 (1890); State v. Becker, 3 S.D. 29, 51 N.W.
1018, 1022 (1892); Hobbs v. State, 133 Ind. 404, 408-410, 32 N.E.
1019, 1020-1021 (1892); Garvey Vv. Whitaker, 48 La. 527, 530-533,
19 So. 457, 458-459 (1896): Jackson v. United States, 102 F. 473
(9th Cir. 1900).

” Francis V. Resweber, 329 U.S. 459 (1947) (second attempt at
electrocution after first effort failed); Jn re Kemmler, 136 U.S. 436
(1890) (electrocution); Wilkerson v. Utah, 99 U.S. 130 (1879)
(firing squad).

12

which certain punishments (particularly the death pen-
alty) must be administered.'' Otherwise, the Court's de-
cisions have focused on issues such as whether a particu-
lar sentence is excessive for a certain offense,'* whether a
particular sanction can be imposed or carried out on
certain persons,'* whether the State has exceeded the
scope of the punishment that can be imposed on a pris-
oner,'* and whether certain conduct can be subject to
criminal punishment at all.'° Those decisions do not
grant a right to challenge the accuracy of the verdict of
guilt or innocence on direct or collateral review.

II. THE DUE PROCESS CLAUSE DOES NOT GUAR-
ANTEE A PRISONER A JUDICIAL REMEDY FOR
A CLAIM OF NEWLY DISCOVERED EVIDENCE

Petitioner addresses his argument to the wrong ques-
tion. It is settled that the Constitution does not allow
an innocent person to be executed; the Due Process
Clause prohibits government from punishing someone
unless and until it has proved his guilt beyond a reason-
able doubt at a criminal trial in accordance with relevant
constitutional guarantees. Bell v. Wolfish, 441 U.S. 520,
535-536 & n.16 (1979). The State, however, has satisfied
that requirement; it proved petitioner’s guilt at a trial

"B.g., Harmelin, 111 S. Ct. at 2702 (mandatory sentences) ;
Blystone Vv. Pennsylvania, 494 U.S. 299 (1990), and Furman vy.
Georgia, 408 U.S. 238 (1972) (death penalty).

" E.g., Harmelin; Tison vy. Arizona, 481 U.S. 137 (1987); Coker
Vv. Georgia, 433 U.S. 584 (1977): Gregg Vv. Georgia, 428 U.S. 152
(1976). .

"SE .g., Stanford v. Kentucky, 492 U.S. 361 (1989); Penry v.
Lynaugh, 492 U.S. 302 (1989); Ford v. Wainwright, 477 U.S. 399
(1986).

ME g.. Hudson vy. MeMillian, 112 S. Ct. 995 (1992); Estelle v.
Gamble, 429 U.S. 97 (1976).

% Powell Vv. Texas, 392 U.S. 514 (1968); Robinson v. California,
370 U.S. 660 (1962).

13

that is not under challenge, so petitioner is no longer “in-
nocent.”” For that reason, the question is not whether the
Constitution bars the punishment of an innocent person,
but whether it requires a State to establish a judicial,
post-conviction mechanism for entertaining a prisoner’s
challenge to his conviction on the basis of newly discov-
ered evidence. In our view, it does not.

A. Due Process Does Not Require That Judicial Re-
view Be Available For A Claim Of Newly Dis-
covered Evidence

Petitioner challenges his sentence on the ground that
he is innocent of the crime, not on the ground that a
specific constitutional provision was violated at his trial.
The only constitutional provision that could be relevant
to such a claim is the Due Process Clause; the issue there-
fore ultimately reduces to whether that Clause guaran-
tees petitioner relief on his claim of newly discovered
evidence. In our view, due process does not entitle a
prisoner to a judicial remedy for newly discovered evi-
dence. Even if it did, however, a State can fix a reason-
able time limit for such motions.

1. A State need not provide a judicial forum for
resolution of a claim of newly discovered evi-
dence

a. Several provisions of the Constitution regulate the
trial process and therefore contemplate that a defendant
must be tried before he can be punished. By contrast, the
Constitution nowhere contains a right to take an appeal
from a judgment of conviction, or to seek a new trial on
any ground, legal or factual. The only relevant provision
is the Suspension Clause, which refers to “(t]he Privilege
of the Writ of Habeas Corpus,” Art. I, § 9, Cl. 2. But the
writ mentioned in that Clause was merely a means of
preventing improper executive detention of persons who
had not been convicted of any crime. The Suspension
Clause did not require the federal and state governments

14

to establish appellate or post-conviction mechanisms as
part of the criminal process, nor did it envision that fec-
eral courts in habeas corpus proceedings would entertain
challenges to state court criminal judgments."

b. Thus, the Court has long held that a defendant does
not have a constitutional right to appeal his conviction
or sentence to a state appellate tribunal. The Court first
stated that principle nearly a century ago in McKane Vv.
Durston, 153 U.S. 684, 687-688 (1894). In ruling that
the defendant was not unconstitutionally denied bail
pending appeal of his conviction, the first Justice Harlan
wrote:

An appeal from a judgment of conviction is not a
matter of absolute right, independently of constitu-
tional or statutory provisions allowing such appeal.
A review by an appellate court of the final judgment
in a criminal case, however grave the offence of
which the accused is convicted, was not at common
law and is not now a necessary element of due process
of law. It is wholly within the discretion of the state
to allow or not to allow such review. A citation of
authorities upon the point is unnecessary.

It is, therefore, clear that the right of appeal may
he accorded by the State to the accused upon such
terms as in its wisdom may be deemed proper. * * *
|Wlhether an appeal should be allowed, and if so,
under what circumstances or on what conditions, are
matters for each State to determine for itself.

Shortly after McKane was decided, the Court applied
that rule in a capital case, Andrews v. Swartz, 156 U.S.
272 (1895). There, a state law granted a convicted de-

16 See Swain Vv. Pressleu, 430 U.S. 372, 384-386 (1977) (opinion
of Burver, C.J.); Stone v. Powell, 428 U.S. 465, 474-475 (1976) ;
United States v. MacCollom, 426 U.S. 317, 323 (1976) (plurality
opinion) (dietum); Friendly, Zs Innocence Irrelevant? Collateral
Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 170 (1970).
Not until well into this century did plenary federal review of state
court convictions become a commonplace feature of habeas corpus.
See generally Wainwright v. Sykes, 433 U.S. 72, 79 (1977).

15

fendant a right of appeal in non-capital cases, but made
appeal discretionary in capital cases. The defendant was
convicted of murder and sentenced to death. When his
application to appeal was denied, he sought review in
this Court, contending that the state law was unconstitu-
tional. Citing McKane, this Court rejected that claim.
156 U.S. at 274-275. This Court also noted that a de-
fendant can always seek review of a federal claim in
this Court in order to challenge his conviction. Jd. at
276; see also Bergemann v. Backer, 157 U.S. 655, 659
(1895) ‘rejecting similar claim in a capital case); Ev
parte Gordon, 66 U.S. (1 Black) 503 (1862) (no right
to appeal unless authorized by statute even in a capital
case).

The rule articulated in McKane and applied in Andrews
is still valid today. This Court has frequently reiterated
the proposition that the Due Process Clause guarantees
a defendant the right to a fair trial, not a right to chal-
lenge the trial court’s judgment of conviction on appeal.'”
Relying on that principle, the Court has recently made
clear that the States have no constitutional obligation to

17 See Bergemann vy. Backer, 157 U.S. 655, 659 (1895); Koll v.
Lehlback, 160 U.S. 293, 297, 299 (1895); Murphy v. Massachusetts,
177 U.S. 155, 158 (1900); Reetz v. Michigan, 188 U.S. 505, 508
(1903); Frank v. Mangum, 237 U.S. 309, 327 (1915); Luckenbach
S.S. Co. v. United States, 272 U.S. 533, 536 (1926); Ohio v. Akron
Metro. Park Dist., 281 U.S. 74, 80 (1930); Willis v. Tennessee, 296
U.S. 533 (1935); District of Columbia v. Clawans, 300 U.S. 617, 627
(1937); Carter yv. Illinois, 329 U.S. 173, 175 (1946); Brown v.
Allen, 344 U.S. 443, 486 n.36 (1953); National Union of Marine
Cooks & Stewards v. Arnold, 348 U.S. 37, 42 n.6 (1954); Griffin v.
Illinois, 351 U.S. 12, 18 (1956) (plurality opinion); id. at 21
(Frankfurter, J., concurring in the judgment); Lindsey v. Normet,
405 U.S. 56, 77 (1972); Ortwein v. Schwab, 410 U.S. 656, 660
(1973); Ross v. Moffitt, 417 U.S. 660, 606, 611 (1974); Estelle v.
Dorrovah, 420 U.S. 534, 536 (1975); United States vy. MacCollom,
426 U.S. 317, 323 (1976) (plurality opinion); Abney v. United
States, 431 U.S. 651, 656 (1977) ; Jones v. Barnes, 463 US. 745, 751
(1983); Evitts v. Lucey, 469 U.S. 387, 393 (1985); Pennsylvania
Vv. Finley, 481 U.S. 551, 555-556 (1987); Murray v. Giarratano, 492
U.S. 1, 10 (1989) (plurality opinion).

16

establish post-conviction judicial remedies for convicted
defendants. See Murray v. Giarratano, 492 U.S. 1, 10
(1989) ‘plurality opinion); Pennsylvania v. Finley, 481
U.S. 551, 555-556 (1987).

The rationale of McKane and Andrews is also still
valid. The Due Process Clause embodies what the Court
has termed “the inherent right of defence,’ but does not
include a right “to review a judgment by way of error
or appeal,” which instead is a matter of “grace or favor.”
National Union of Marine Cooks & Stewards v. Arnold,
348 U.S. 37, 42 n.6 (1954) ‘quoting Hovey v. Elliott, 167
U.S. 409, 443 (1897)). Of course, “{clourts do make
mistakes,” Willy v. Coastal Corp., 112 8. Ct. 1076, 1081
(1992). Congress and state legislatures thus have chosen
to authorize direct appeal in criminal cases. But that
now-universal practice does not mean that due process
requires such review, and it certainly does not require a
State to adopt a post-conviction mechanism to avoid any
possibility of error. See Medina v. California, No. 90-
8370 (June 22, 1992), slip op. 13 (quoting Patterson Vv.
New York, 482 U.S. 197, 208 (1977)) (“Due process
does not require that every conceivable step be taken, at
whatever cost, to eliminate the possibility of convicting
an innocent person.”). Moreover, a defendant can seek
relief in this Court if he claims that the state courts
violated his federal rights. Andrews v. Swartz, 156 U.S.
at 276. A defendant convicted in state court therefore
always has an opportunity to seek judicial review of a
federal claim.

ce. Petitioner relies on several cases in which the Court
has discussed the concept of “actual innocence” in con-
nection with the habeas corpus process. The Court has
said that a prisoner who has forfeited his right to seek
relief on habeas corpus due to a procedural default in
the state courts or an abuse of the writ under 28 U.S.C.
2244(b) can still obtain relief if he can establish his

“actual innocence.” See Sawyer v. Whitley, supra;

McCleskey v. Zant, 111 S. Ct. at 1471-1474; Smith v.

«a

17

Murray, 477 U.S. 527, 587-588 (1986); Murray v. Car-
rier, 477 U.S. 478, 496 (1986) ; Kuhlmann v. Wilson, 477
U.S. 436, 454 (1986) (plurality opinion). Those cases
do not aid petitioner, however, since they rest on the
principle that the federal courts can invoke their “equit-
able discretion” in habeas corpus to excuse procedural
defaults in order to ensure that a federal constitutional
error does not lead to the conviction of an innocent per-
son. McCleskey, 111 S. Ct. at 1474. By contrast, peti-
tioner does not seek to excuse his failure properly to pre-
serve a claim of legal error on the ground that he is inno-
cent. Rather, his claim is that, even if the verdict was
not infected by constitutional error, or indeed, any /egal
error at all, that verdict is factually inaccurate, as new
evidence reveals. That difference is significant. Federal
courts have discretion to excuse procedural default rules
that this Court itself has developed, but federal courts
lack supervisory power over state courts and cannot va-
cate a state conviction absent a constitutional violation.
Smith v. Phillips, 455 U.S. 209, 221 (1982). The equit-
able power recognized in cases such as McCleskey and
Murray therefore does not extend nearly as far as peti-
tiener’s argument demands.

The closest decision by this Court is Jackson v. Vir-
ginia, 443 U.S. 307 (1979). Jackson held that due proc-
ess requires the State to prove a defendant’s guilt by evi-
dence sufficient to persuade a rational trier of fact beyond
a reasonable doubt of every element of the charged of-
fense, and that federal courts can review the sufficiency
of the evidence on habeas corpus. Yet Jackson does not
help petitioner, for two related reasons.

First, judicial review of the sufficiency of the evidence
is limited to the record. Jackson, 443 U.S. at 319. By
definition, then, the due process principle adopted in
Jackson does not extend to later discovered evidence.
Second and more importantly, the review contemplated
by Jackson is not to determine whether the trier of fact
has made the correct decision; it only forbids the trier

18

of fact from making an irrational decision. The standard
of review that Jackson adopted illustrates that point.
The inquiry into the sufficiency of the evidence, Jackson
stated, “does not require a court to ask itself whether it
believes that the evidence at trial established guilt be-
yond a reasonable doubt. Instead, the relevant question
is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime be-
yond a reasonable doubt.” /d. at 318-319 (citation and
punctuation omitted). That principle does not aid peti-
tioner, since in light of the evidence at trial, the jury’s
verdict surely is not irrational.

d. Executive clemency is a traditional remedy for
claims of legal or factual error. The authority of a
state governor to grant a pardon, commutation, or re-
prieve is neither granted nor withheld by the Constitu-
tion, Rogers v. Peck, 199 U.S. 425, 436 (1905); Storti Vv.
Massachusetts, 183 U.S. 138, 142 (1901), and Texas law
appears to authorize the governor to exercise clemency
for any reason. See Tex. Const. Ann. art. IV, § 11 (Ver-
non 1984); Tex. Code Crim. Proc. Ann. art. 4801
(Vernon 19791; Stanley v. State, 490 S.W.2d 828, &34
(Tex. Crim. App. 1972). As the Fifth Circuit once wrote,
“'djue process requires no more than compliance with
the orderly procedures long established in our law to as-
sure fundamental fairness in criminal prosecutions.
Executive clemency is the last link in the chain.” Shaver
v. Ellis, 255 F.2d 509, 511 (1958).""

1* There is no reason to fear that there is a significant risk that
an innocent person will be executed under the procedures that the
States have in place. Although one study asserted that 23 innocent
persons have been executed in this century, see Bedau & Radelet,
Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L.
Rev. 21 (1987), that study is seriously flawed in numerous respects,
see Markman & Cassell, Protecting the Innocent: A Response to
the Bedau-Radelet Study, 41 Stan. L. Rev. 121 (1988). The direct
review and collateral procedures that the federal government and
the States have in place are more than ample to separate the guilty

19

As noted below, a defendant convicted in federal court
can seek relief on a claim of newly discovered evidence
only within two years after his conviction becomes final.
After that point, the prisoner must seek relief from the
President, even if new facts prove his innocence. The
Pardon Clause, Art. II, § 2, Cl. 1, authorizes the Presi-
dent to pardon a prisoner or to commute a capital sen-
tence to any term of years, for any reason. See Schick v.
Reed, 419 U.S. 256 (1974); Ex parte Wells, 59 US.
(18 How.) 307 (1856).

It is reasonable for a State to channel untimely claims
of newly discovered evidence to the clemency process,
rather than a judicial proceeding. Repetitive challenges
to a prisoner’s capital sentence have now become the
norm in capital cases,’’ and such actions often a.e filed
shortly before a prisoner is scheduled to be executed.”
The clemency process allows a State to enjoy the flexibil-
ity necessary to ensure that a potentially valid claim of
innocence can be carefully analyzed, while also ensuring
that the State’s laws are not frustrated. By contrast, the
potential for abuse of the writ if petitioner’s submission
were accepted is evident. All that a prisoner need allege
to obtain a stay of his execution and an evidentiary hear-
ing is that a new witness recently surfaced or some new
medical evidence has recently come to light that casts
some doubt on his guilt. A manufactured claim of inno-
from the innocent. Given those procedures, channeling untimely
allegations of newly discovered evidence to executive clemency is a
reasonable way to ensure that an innocent person is neither executed
nor imprisoned.

™ BE .g., Vasquez Vv. Harris, 112 S. Ct. 1713 (1992), and Gomez v.
United States District Court, 112 S. Ct. 1652 (1992) (fifth action
for relief by condemned prisoner); Jn re Blodgett, 112 S. Ct. 674
(1992) (three habeas petitions by condemned prisoner); Delo v.

Stokes, 495 U.S. 320 (1990) (fourth habeas petition by condemned
prisoner )

*’ See Sawyer V. Whitley, slip op. 6-7 & n.7; Woodard vy. Hutchins,
464 U.S. 377, 380 (1984).

20

cence cannot be dismissed summarily, which enables a
condemned prisoner to delay his execution, perhaps sev-
eral times. And there is no likelihood that the risk of
being held in contempt or prosecuted for perjury could
possibly deter a condemned inmate from filing a frivolous
or fraudulent claim of innocence. Cf. Jilinois v. Allen,
397 U.S. 337, 345 (1970). These considerations show
why a State could reasonably decide that the historical
practice of using clemency as a safety valve fairly accom-
modates the competing interests.*'

21 Relying on the plurality opinion in Ford v. Wainwright, 477
U.S. 399, 416 (1986), petitioner argues that clemency is an inade-
quate safeguard. Br. 47 n.53. Petitioner’s claim is unpersuasive.
While it would be unreasonable to tell a prisoner that he can claim
incompetency (the issue in Ford) only if it arises within 30 days
of sentencing, it is not unreasonable to treat differently claims of
newly discovered evidence, for the reasons stated in the text. It also
is immaterial that the clemency remedy is before an elected official in
the State’s executive branch, rather than in a court. Federal separa-
tion of powers principles do not apply to the States, so States are
free to allocate decisionmaking authority to whatever branch of
government they choose. Minnesota vy. Clover Leaf Creamery Co.,
449 U.S. 456, 461 n.6 (1981) (collecting cases). And Texas, like
many other States, has an elected judiciary. See Houston Lawyers’
Ass'n V. Texas Attorney General, 111 8. Ct. 2376 (1991).

Although the governor's clemency decision would not be subject
to judicial review, that fact should not prevent a State from using
clemency as a safety valve. In the federal system, the President’s
decision whether to exercise clemency is not subject to judicial
review because, in the words of Baker y. Carr, 369 U.S. 186, 217
(1962), the Pardon Clause is “a textually demonstrable constitu-
tional commitment of the issue to a coordinate political department.”
Cf. Ev parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867); United
States Vv. Klein, 80 U.S. (13 Wall.) 128, 148 (1872); Publie Citizen
Vv. Department of Justice, 491 U.S. 440, 485 (1989) (opinion of
Kennedy, J.) (Congress cannot limit a pardon) ; see generally Schick
Vv. Reed, 419 U.S. 256, 266 (1974); compare Connecticut Board of
Pardons Vv. Dumschat, 452 U.S. 458 (1981) (due process does not
regulate clemency). If, as explained below, federal law, including
the Constitution, requires that a federal prisoner in petitioner’s
shoes seek relief from the President and entrusts the President with
the final say over this matter, due process should not impose a
greater obligation on the States. They, too, should be free to use

21

2. A State can set a time limit for presenting to a
court a claim of newly discovered evidence

a. By statute, federal courts have long had power to
grant defendants a new trial.** Originally, however, a
court could do so only if it acted (or a proceeding was
begun) during the term of court in which a final judg-
ment was entered. Otherwise, a court had jurisdiction
only to correct a clerical mistake. United States v. Mayer,
235 U.S. 55, 67-68 (1914); Howell v. United States, 172
F.2d 213, 215-216 (4th Cir.), cert. denied, 337 U.S. 906
(1949). In 1934, this Court departed from the common
law rule in favor of a specific time limitation. Rule 2/3)
of the Criminal Appeals Rules authorized district courts
to grant a defendant a new trial on the ground of newly
discovered evidence if he filed such a motion within 60
days after the judgment became final. Rule 2/3), 292
U.S. 659, 662 (1934). Four years later, the Court modi-
fied the Rule to allow a newly discovered evidence motion
to be filed in a capital case at any time before the pris-
oner was executed. Rule 2/3), 304 U.S. 592, 592 (1938)
(codified at 18 U.S.C. 688 (1940) ).

Early in the 1940s, there was debate in the legal com-
munity over whether to abolish the time limit for new
trial motions based on newly discovered evidence in order
to prevent a miscarriage of justice, or to retain some

executive clemency as the safety valve protecting against a mis-
carriage of justice.

22 New trials were a rarity in England in 1789. Common law
courts had authority to grant a new trial in misdemeanor cases,
where it was sparingly used, but not in felony cases. Orfield, New
Trial in Federal Criminal Cases, 2 Villanova L. Rev. 293 (1957);
Riddell, New Trial in Present Practice, 27 Yale L.J. 353, 355 (1918);
Riddell, New Trial at the Common Law, 26 Yale LJ. 49, 57-60
(1916). The First Congress authorized federal courts to grant new
trials for “reasons for which new trials have usually been granted
in courts of law,” Act of Sept. 24, 1789, ch. 20, § 17, 1 Stat. 83
(Judiciary Act of 1789), even in felony cases. See Sparf v. United
States, 156 U.S. 51, 175 (1895) (Gray & Shiras, JJ., dissenting)
(collecting early cases); Orfield, 2 Villanova L. Rev. at 306 &
nn.29-31.

22

time limit in order to promote finality. Orfield, New
Trial in Federal Criminal Cases, 2 Villanova L. Rev. 293,
296-299 (1957). The Federal Rules Advisory Committee
and Attorney General Cummings advocated eliminating
any time limit.’ That view, however, did not prevail;
to the contrary, the Court set a two-year time limit in
new Fed. R. Crim. P. 33 and abolished the special ex-
ception for capital cases. 327 U.S. 821, 855-856 (1944).

Rule 33 has changed little since its adoption. A new
trial motion based on newly discovered evidence must
still be filed within two years of final judgment. Rule
45(b) also states clearly that a court “may not extend
the time for taking any action under Rule{|| * * * 33
* * * except to the extent and under the conditions stated
in” it, and Rule 33 contains no exception to the two-year
limitation. The courts also have strictly construed Rule
33. For example, in United States v. Smith, 331 U.S. 469
(1947), this Court held that Rules 33 and 45 barred a
district court from granting a new trial beyond the then-
applicable five-day limit for motions on grounds other
than newly discovered evidence. That rationale also ap-
plies to the requirement that a new trial motion based on
newly discovered evidence must be filed within two years
after entry of final judgment. See United States vy. Rob-
inson, 361 U.S. 220 (1960) (strictly construing Rule
45(b) while noting that it bars enlarging time for filing
a Rule 33 motion). The lower courts also have uniformly

*8 See 1942 Advisory Committee, Federal Rules of Criminal Pro-
cedure, Federal Rules: Preliminary Draft 102, reprinted in 1 M.
Wilken & N. Triffin, Drafting History of the Federal Rules of
Criminal Procedure 102, 134 (1991) [hereinafter Drafting History)
(draft of Rule 48(e) on new trials); 1942 Advisory Committee,
Federal Rules: Preliminary Draft 134, reprinted in 1 Drafting
History (draft of Rule 31(c) on new trials); 1944 Advisory Com-
mittee, Federal Rules: Second Preliminary Draft 129, reprinted in
4 Drafting History 129 (draft of Rule 35 on new trials); 1944
Advisory Committee, Federal Rules 34-35, reprinted in 7 Drafting
History 54-55 (proposed Rule 35 on new trials); Barron, Proposed
Rules of Procedure in Criminal Cases, 2 F.R.D. 211, 218 (1941);
Cummings, The Third Great Adventure, 3 F.R.D. 283, 287 (1943).

23

ruled that the Rule 33 time limits are mandatory and
that a district court lacks jurisdiction to consider an
untimely motion.“ There is also no exception to that
requirement. Even under the harshest of circumstances,
where a defendant’s innocence seems manifest, an un-
timely motion cannot be entertained. Clemency is the
available recourse. E.q., United States v. Kaplan, 101 F.
Supp. 7 (S.D.N.Y. 1951) ( Weinfeld, J.).*

b. Texas law permits a defendant to obtain a new
trial based on newly discovered evidence, but requires
that a motion be filed within 30 days of imposition or
suspension of sentence in open court. Tex. R. App. P. 31
(a)(1). Texas courts will not consider an untimely mo-
tion. Petitioner thus could have sought relief in the
Texas courts if he had obtained the affidavits sooner.

24 See, e.g., United States v. Spector, 888 F.2d 582%, 584 (8th Cir.
1989); United States Vv. Cook, 705 F.2d 350, 351 (9th Cir. 1983);
United States v. Cody, 529 F.2d 564, 565-566 (8th Cir. 1976);
Howell v. United States, 172 F.2d at 215-216; United States v.
Kaplan, 101 F. Supp. 7 (S.D.N.Y. 1951). The commentators agree.
See 8A J. Moore et al., Moore’s Federal Practice © 33.03|2) (2d ed.
1992); 3 C. Wright, Federal Practice and Procedure $558 (2d ed.
1982).

** Chief Justice Stone made this point in transmitting to the Rules
Advisory Committee matters that this Court believed should be con-
sidered by the committee. 7 Drafting History 7 (letter from Chief
Justice Stone to Advisory Committee Chairman Arthur Vanderbilt :
“It is suggested that there should be a definite time limit within
which motions for a new trial based on newly discovered evidence
should be made, unless the trial court in its discretion, for good
cause shown, allows the motion to be filed. Is it not desirable that
at some point of time further consideration of criminal cases by the
court should be at an end, after which appeals should be made to
Executive clemency alone?”). See also Howell v. United States, 172
F.2d at 216.

2® See Beathard vy. State, 767 S.W.2d 423, 433 (Tex. Crim. App.
1989); Drew v. State, 743 S.W.2d 207, 222-223 (Tex. Crim. App.
1987); Duggard v. State, 688 S.W.2d 524, 528 (Tex. Crim. App.
1985), overruled on other grounds, Williams v. State, 780 S.W.2d
802 (Tex. Crim. App. 1989) (all construing predecessor to Tex. R.
App. P. 31(a)(1)); 26 Texas Jur. 3d Newly Discovered Evidence

a4

Petitioner implies that the 30-day limit imposed by
Tex. R. App. P. 31(a!(1) is unconstitutional. Br. 38.
But petitioner could not prevail had he been convicted in
federal court, since his conviction became final more
than six years before he filed his second habeas petition.
Petitioner also could not obtain relief in at least 34 other
States and the District of Columbia.** Given this wide-
spread judgment that some time period is necessary,
the fact that the Constitution supplies no objective stand-
ard for preferring one time period over another, and the
principle that due process does not require any post-
conviction judicial review, the judgment made by Texas
cannot be deemed unconstitutional.

B. Petitioner Cannot Establish His Innocence

Even if petitioner were correct that the Constitution
bars Texas from enforcing its time limit on judicial con-
sideration of newly discovered evidence claims, the re-
sult in this case would not be different. Under the com-
mon law test prevailing in Texas, the other States, and

§ 3532, at 43 (Supp. 1992). But see Callis v. State, 756 S.W.2d 826,
827-828 (Tex. App. Ist Dist. 1988) (ruling that the “good cause”
provision of Tex. R. App. P. 2(b) can be used to suspend the 30-day
requirement of Tex. R. App. P. 31(a)(1) if the constitution so
requires; suspending the requirement because the defendant lacked
counsel). A defendant cannot raise a claim of newly discovered
evidence on collateral attack; he must do so on direct appeal. Ex
parte May, 717 S.W.2d 84, 8&8 (Tex.-Crim. App. 1986); Ev parte
Binder, 660 S.W.2d 103, 104-106 (Tex. Crim. App. 1983).

27 Texas is one of 16 States that require a new trial motion based
on a claim of newly discovered evidence to be filed within 60 days
after judgment. One State requires that a motion be filed during
the term in which judgment is rendered. Five States have one-year
time limits. Ten States and the District of Columbia have two-year
time limits. Three States have a three-year limit. Only 15 States
permit a new trial motion to be filed more than three years after
conviction. Of that number, four States have time limits of less than
120 days, but allow those limits to be waived. One State has a one-
year time limit that can be waived, and another has a two-year
limit that can be waived. Nine States allow a convict to file a newly
discovered evidence claim at any time. For the Court's convenience,
the relevant laws are collected at App. A, infra.

25

the federal system, relief may be granted on the basis of
newly discovered evidence only if: (1) The evidence is in
fact newly discovered and was unknown to the defendant
at the time of trial; (2) the defendant’s failure to learn
of the evidence before trial was not due to a lack of due
diligence; (3) the evidence is material to the issues at
trial, rather than merely cumulative or impeaching; and
(4) the new evidence probably would produce an ac-
quittal at a retrial.** Last Term, in Sawyer v. Whitley
—a case involving a claim that the prisoner was “actually
innocent” of his death sentence—this Court held that the
prisoner “must show by clear and convincing evidence
that but for a constitutional ervor, no reasonable juror
would have found the petitioner eligible for the death
penalty under the applicable state law.” Slip op. 1.
According to the state trial court and the Texas Court
of Criminal Appeals, the proof of petitioner’s guilt was
“overwhelming.” What is more, those courts found “no
evidence at trial remotely suggesting that anyone other
than | petitioner] committed the offense.” 682 S.W.2d at
320; 819 S.W. 2d at 528; J.A. 10. Officer Carrisalez and
Enrique Hernandez both identified petitioner as the mur-
derer, and the Texas Court of Criminal Appeals found
Hernandez “unwavering in his in-court identification” of
petitioner. 682 S.W.2d at 317. Petitioner also wrote a

28 See 8A J. Moore et al., supra, © 33.03[1], at 33-20 to 33-22;
3 C. Wright, supra, § 557, at 315-337; 25 Texas Jur. 3d Newly
Discovered Evidence §§ 3487-3498 (1983); e.9., United States v.
Tucker, 836 F.2d 334, 336 (7th Cir.), cert. denied, 488 U.S. 855
(1988); United States v. Miliet, 804 F.2d 853, 859 (5th Cir. 1986);
Drew Vv. State, 743 S.W.2d 207, 226 (Tex. Crim. App. 1987) (collect-
ing cases); Whitmore v. State, 570 S.W.2d 889, 896 (Tex. Crim.
App. 1976). This Court has often spoken approvingly of that stand-
ard, especially the last part. See Boyde v. California, 494 U.S. 370,
380-381 n.4 (1990); INS v. Abudu, 485 U.S. 94, 107 n.12 (1988);
United States v. Agurs, 427 U.S. 97, 111 & n.19 (1976); Mesarosh
v. United States, 352 U.S. 1, 9 (1956); United States v. Johnson,
327 U.S. 106, 110 n4 (1946). The standard is often traced to the
opinion of the Georgia Supreme Court more than a century ago in
Berry V. State, 10 Ga. 511 (1851). See, e.g., Johnson, 327 U.S. at
110 nA.

26

letter in which he “essentially admit{ted|” killing the
officers. /bid.; 904 F.2d at 949 n.6. In sum, when viewed
as a whole and in the light most favorable to the State,
see Jackson, 443 U.S. at 319; Wright v. West, slip op. 18
(plurality opinion) ; id. at 6-7 n.3 (Souter, J., concurring
in the judgment), the evidence powerfully established
petitioner’s guilt.

Petitioner’s affidavits do not undermine that verdict.
Whatever the merit of petitioner’s claim that Officer
Rucker was involved in drug trafficking, petitioner does
not allege that Officer Carrisalez was so involved; Car-
risalez just happened to be in the wrong place at the
wrong time. Moreover, petitioner’s claim rests on uncor-
roborated hearsay; one affidavit was submitted by a rela-
tive of petitioner’s who is presently incarcerated ; and the
affiants’ statements were not made under circumstances
establishing their reliability. Compare Fed. R. Evid. 804
(b) (3). Finally, petitioner’s failure to present this proof
at an earlier stage of the process justifies skepticism.
See Taylor Vv. Illinois, 484 U.S. 400, 414 (1988).

CONCLUSION

The judgment of the court of appeals should be af-
firmed.

Respectfully submitted.

KENNETH W. STARR
Solicitor General

ROBERT S. MUELLER, II!
Assistant Attorney General

JOHN G. ROBERTS, JR.
Deputy Solicitor General

PAUL J. LARKIN, JR.
Assistant to the Solicitor General
JULY 1992

APPENDIX A

State Time Limits on the Filing of New Trial Motions
Based on Claims of Newly Discovered Evidence

State
Alabama
Alaska
Arizona

Arkansas
California

Colorado
Connecticut

Delaware

District of
Columbia

Florida

Georgia

Hawaii
Idaho

Illinois
Indiana
Iowa

Kansas
Kentucky

Louisiana

Maine
Maryland

Massachusetts
Michigan

Statutory Provision or Rule and Time Limit

Ala. Code § 15-17-5 (1982): 30 days

Alaska R. Ct., Crim. R. 33 (1991): 2 years

Ariz. R. Crim. P. 24.2(a) (2) (1990): 60
days

Ark. R. Crim. P. 36.22 (1989) : 30 days

Cal. Penal Code, tit. 7, § 1502 (1985): no
time limit

Col. R. Crim. P. 33 (1992): no tirre limit

Conn. Gen. Stat. Ann. §§ 52-270, 52-582;
Conn. R. Super. Ct., Crim. Cases, § 904
(1992): 3 years

Del. Super. Ct. Crim. R. 33 (1992): 2 years

D.C. Super. Ct. Crim. R. 33 (1991): 2 years
Fla. R. Ct., Crim. P., R. 3.590 (1992): 10
days

Ga, Code Ann. §§ 5-5-40, 5-5-41 (1982): 30
days, can be extended

Haw. R. Penal P. 33 (1989): 10 days

Idaho Code § 19-2407 (Supp. 1991): 10
days, can be extended

Ill. Ann, Stat. para. 116-1 (1990): 30 days

Ind. R. Crim. P. 16 (1992): 30 days

lowa Code § 813.2, R. Crim. P. 23 (1979): 2
years, can be waived

Kan. Stat. Ann. § 22-3501 (1988): 2 years

Ky. R. Crim. P. 10.06 (1991): 1 year, can

be waived
La. Code Crim. Proc. Ann. art. 853 (West
1991): 1 year

Maine R. Crim. P. 33 (1991): 2 years

Md. Ann. Code, Crim. R. 4-331 (1992): 1
year

Mass. R. Crim. P. 30 (1979): no time limit

Mich. Ct. R. Crim. P. 6.431(A) (1) (1989):
42 days

(la)

State

Minnesota
Mississippi

Missouri
Montara

Nebraska
Nevada
New Hampshire

New Jersey

New Mexico
New York

North Carolina

North Dakota
Ohio

Oklahoma
Oregon

Pennsylvania
Rhode Island

South Carolina
South Dakota

Tennessee
Texas

Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin

Wyoming

2a
Statutory Provision or Rule and Time Limit

Minn. R. Crim. P. 26.04 (1992): 15 days

Miss. Crim, R. 5.16 (1991): motion must be
made within term that judgment is issued

Mo. R. Crim. P. 29.11 (1992): 15-25 days

Mont. Code Ann. § 46-16-702 (1989): 30
days

Neb. Rev. Stat. § 29-2103 (1985): 3 years

Nev. Rev. Stat. § 176.515 (1986): 2 years

N.H. Rev. Stat. Ann. § 526:4 (1974): 3
years

N.J. R. Crim. Prac. 3:20-2 (1992): no time
limit

N.M. R. Crim. P. 5-614 (1986) : 2 years

N.Y. Crim. Proc. Law § 440.10 (McKinney
1983): no time limit

N.C. Gen. Stat. § 15A-1415 (1991): no time
limit

N.D. R. Crim. P. 33 (1990): 2 years

Ohio R. Crim. P. 33 (1987): 120 days, can
be waived

Okla. Ct. R., ch. 15, § 953 (1992): 1 year

Or. Rev. Stat. Ann. tit. 14, § 136.535 (1990):
5 days, can be waived

Pa. R. Crim. P. 1123(d) (1989): no time
limit

R.I. Super. Ct. R. Crim. P. 33 (1989): 2
years

S.C. R. Crim. P. 29(b) (1991): no time limit

S.D. Codified Laws ch. 23A-29-1, : R. 33
(1988): 10 days

Tenn. R. Crim. P. 33 (1990) : 30 days

Tex. R. App. P. 31 (1986) : 30 days

Utah R. Crim. P. 24 (1990): 10 days

Vt. R. Crim. P. 33 (1983): 2 years

Va. Sup. Ct. R. 34:15 (1991): 21 days

Wash. Crim. R.7.8(b) (1992): 1 year

W. Va. R. Crim. P. 33 (1991): no time limit

Wis. Stat. Ann. § 809.30(2)(b) (West
1991): 20 days

Wyo. R. Crim. P. 34(b) (1991): 2 years

3a

APPENDIX B

The letter written by petitioner and found on him at
the time of his arrest, State’s Exh. 76A-76G, reads as
follows, Respondent’s Opposition to Request for Stay of
Execution et al. 6-7 (Feb. 16, 1992):

“ To whom it may concern: I am terribly sorry for

those I have brought grief to their lives. Who knows
why? We cannot change the future’s problems with
problems from the past. What I did was for a cause
and purpose. One law runs others, and in the world
we live in, that’s the way it is.

I’m not a tormented person. I am sane in every way.
My military life has nothing to do with this. We are
all out here to service one way other and other [sic].

I believe in the law. What would it be without this
men that risk their lives for others, and that’s what
they should be doing—protecting life, property, and
the pursuit of happiness. Sometimes, the law gets
too involved with other things that profit them. The
most laws that they make for people to break them,
in other words, to encourage crime.

What happened to Rucker was for a certain reason.
I knew him as Mike Tatum. He was in my business,
and he violated some of its laws and suffered the
penalty, like the one you have for me when the time
comes.

My personal life, which has been a conspiracy since
my high school days, has nothing to do with what
has happened. The other officer that became part of
our lives, me and Rucker’s (Tatum), that night had
not to do in this [sic]. He was out to do what he had
to do, protect, but that’s life. There’s a lot of us that
wear different faces in lives every day, and that is
what causes problems for all. [Unintelligible word).

4a

You have wrote all you want of my life, but think
about yours, also. {Signed Leonel Herrera}

I have tapes and pictures to prove what I have said.
I will prove my side if you accept to listen. You
[unintelligible word] freedom of speech, even a crim-
inal has that right. I will present myself if this is
read word for word over the media, I will turn my-
self in; if not, don’t have millions of men out there
working just on me while others—robbers, rapists, or
burglars—are taking advantage of the law’s time.
Excuse my spelling and writing. It’s hard at times
like this.

W ov. S. GOVERNMENT PRINTING OFFicE, 1992 312324 45492

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0311%3A6. Public record. Not legal advice.