____________________________________________
 

No. 01-_____________

_______________________________________________
 

IN THE SUPREME COURT OF THE UNITED STATES
 

October Term, 2001

_______________________________________________
 

CESAR ROBERTO FIERRO, Petitioner
 

v.
 

JANIE COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent

_________________________________
 

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________________
 
 
 
 
 
 

September, 2002
 

CAPITAL CASE
 

QUESTIONS PRESENTED FOR REVIEW
 

1. Whether AEDPA's statute of limitations, 28 U.S.C. § 2244(d)(1), was satisfied by Fierro filing in the Fifth Circuit a motion for leave to file his successive habeas corpus petition, pursuant to the gatekeeping requirement of 28 U.S.C. § 2244(b)(3)(A), within one year after the conclusion of state habeas proceedings?
 

2. If Fierro's request for authorization did not satisfy the statute of limitations, whether the Eighth and Fourteenth Amendments require an exception to AEDPA's statute of limitations to prevent the execution of a state prisoner whom the court of appeals has determined has met the prima facie showing of innocence set forth in 28 U.S.C. § 2244(b)(2)(B)(ii)?
 

3. Whether a death row inmate who passes through the gateway provision of 28 U.S.C. § 2244(b) by establishing his actual innocence is unaffected by the one-year statute of limitations provision codified at 28 U.S.C. § 2244(d).
 

_______________________________________________
 

IN THE SUPREME COURT OF THE UNITED STATES
 

October Term, 2001

_______________________________________________
 

CESAR ROBERTO FIERRO, Petitioner
 

v.
 

JANIE COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent

_________________________________
 

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________________


 
 

Cesar Fierro respectfully requests that the Court issue a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit entered in the above-captioned proceeding on June 13, 2002.

OPINIONS BELOW

The decision of the Fifth Circuit is published as Fierro v. Johnson, 294 F.3d 674 (5th Cir. June 13, 2002)(as revised June 19, 2002), and is included in the Appendix to this Petition at A-1. The unpublished opinion of the District Court is in the Appendix at A-2.

JURISDICTION

The Court of Appeals entered judgment on June 13, 2002. A-1. This Court's jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves several provisions of the federal habeas corpus statute, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (commonly referred to as the "AEDPA"):

28 U.S.C. § 2244(b), which provides:

(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
 

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless --
 

(A) The applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
 

(B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
 

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
 

(3) (A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
 

(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.
 

(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application satisfies the requirements of this subsection.
 

(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.
 

(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.
 

(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.
 

28 U.S.C. § 2244(d), which provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
 

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
 

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
 

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
 

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
 

28 U.S.C. § 2254 (a), which provides:
 

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
 

The Eighth Amendment to the United States Constitution, which provides in pertinent part:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
 

The Fourteenth Amendment to the United States Constitution, which provides in pertinent part:

[N]or shall any State deprive any person of life, liberty, or property, without due process of law.
 

STATEMENT OF THE CASE

A. Introduction.

Cesar Fierro, a Mexican national, has been confined to death row in Texas for over twenty-one years for the 1979 murder of an El Paso taxi driver. No physical evidence of any kind links Fierro to the crime. The capital murder conviction rests entirely on an alleged "voluntary confession" by Fierro and the testimony of Gerardo Olague, a mentally unstable juvenile delinquent.

Based on new evidence presented at a state habeas corpus hearing in 1994, the State courts found that the lead investigating officer, El Paso Police Detective Al Medrano, conspired with the police in Juarez, Mexico, to coerce Fierro's confession. See Ex parte Fierro, 934 S.W.2d 370, 371-372 (Tex. Crim. App. 1996). The federal courts thereafter adopted these findings. See Fierro v. Johnson, No. EP-97-CA-480-H, Order, at A-2, p. 8 (W.D.Tex. 2000);Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002). According to the affidavit of the lead trial prosecutor, the State would have joined Fierro's motion to suppress the confession had the prosecutor been aware of the police misconduct at the time of the trial. A.-3. Rather than going forward on the unsubstantiated account of the juvenile, the trial prosecutor would have sought to have the capital murder charge against Fierro dismissed. Id. Aside from a confession coerced through torture, no evidence has ever been produced to corrobororate the juvenile's charge that Cesar Fierro committed this crime.

Notwithstanding its determination that the police coerced Fierro's confession, the state appellate court denied habeas corpus relief for the violation of Fierro's due process rights, based on its view that admission of the involuntary confession was harmless. Despite the Fifth Circuit's determination under 28 U.S.C. § 2244 (b)(3)(C), that Fierro's successive federal habeas petition raising claims based on the coercion of his confession met the due diligence and innocence gatekeeping requirements of 28 U.S.C. § 2244(b)(2)(B), the district court subsequently determined that the actual filing of the successive petition thereafter in the district court was untimely under AEDPA's one-year statute of limitations and was therefore barred. The Fifth Circuit affirmed, holding that even though Fierro's filing of his motion for authorization to file a successive habeas petition pursuant to 28 U.S.C. § 2244(b)(3) was timely under the statute of limitations, the subsequent filing of the actual petition in the district court was the relevant filing for purposes of satisfying the statute of limitations, and that filing was beyond the statute of limitations.

B. The Homicide Investigation, the Trial, and the Initial Habeas Corpus Proceedings.

From the outset Fierro maintained that he was innocent, and that the confession was coerced. See S.R. Vol. I, 135, 165-168; S.R. Vol. II, 1295-1301. Fierro did not become a suspect in the murder of taxi driver Nicolas Castanon until over four months later, when sixteen-year old Gerardo Olague came into contact with the El Paso Police. S.R. Vol. II, 1207. Two other men, whom eyewitnesses identified as having abandoned Castanon's blood-stained taxi in a Juarez neighborhood the same morning his body was found in an El Paso park, were suspects in Castanon's murder and were in custody at the time. S.R. Vol. I, 1110; S.R. Vol. II, 1183, 1308-1311. One of the eyewitnesses who identified these two men testified at Fierro's trial that Fierro did not resemble either of them. S.R. Vol. II, 1308-1309, 1408.

On July 31, 1979, Detective Medrano advised the First Assistant District Attorney, Gary Weiser, that Olague had implicated Fierro in the murder. S.R. Vol. I, 141-142. Olague reportedly told the police that he believed Fierro was living in Juarez, but he did not know the address. S.R. Vol. I, 141-142. Weiser told Medrano he thought he had seen Fierro's name on the El Paso Jail log, and suggested that Medrano look for Fierro at the jail. Id. Instead of going to the El Paso jail, where Fierro was in fact incarcerated for a probation violation for possession of marijuana, S.R. Vol. I, 110-111, Medrano went to Mexico for a series of meetings with Juarez Police Comandante Jorge Palacios. S.R. Vol. I, 100-108. Medrano testified at a hearing on Fierro's subsequent motion to suppress the confession that these meetings were strictly for purposes of locating Cesar Fierro. S.R. Vol. I, 100.

In the pre-dawn hours of August 1, 1979, the Juarez Police -- notorious at the time for the widespread use of torture -- led an abusive and illegal raid on the home of Fierro's mother and step-father, seized letters that were written by Fierro and his brother, abducted the parents, and transported them to the Juarez jail. S.R. Vol. I, 151-157, 160-162. At the jail, the Juarez Police physically abused Fierro's mother and threatened his step-father with a "chicharra" -- an electric cattle prod that attaches to the genitals. S.R. Vol. I, 158-159, 160-161; S.R. Vol. II, 1326-27. Fierro's parents were released from custody, without being charged, after a Juarez Police officer told them "Cesar had confessed[.]" S.R. Vol. I, 151-157, 160-162.

At the same time the Juarez Police were holding Fierro's parents, Medrano interrogated Fierro at the El Paso Jail. Fierro testified at the suppression hearing that Medrano told him that the Juarez Police had taken his parents into custody and would not release them unless he confessed. S.R. Vol. I, 166-167. According to Fierro, Medrano convinced him that the Juarez Police had captured his parents by displaying letters he and his brother had written to their parents. Id.

To counter these allegations, the State relied on the suppression hearing testimony of Medrano, who insisted he did not know, much less tell Fierro, that the Juarez Police had taken his parents into custody. S.R. Vol. I, 120-123. Medrano also denied receiving or knowing anything about the letters that Fierro's mother stated the Juarez Police seized during the raid, and that Fierro claimed Medrano utilized as a coercive device during the interrogation. S.R. Vol. I, 131-132. The trial judge rejected Fierro's coerced confession claim after finding that Medrano's testimony was truthful, and admitted the confession.

The State relied on the confession as the centerpiece of its case against Fierro. During the closing argument at the guilt/innocence phase of the trial, the prosecutor encouraged the jury to bring the English and Spanish versions of the confession into the deliberations room, S.R. Vol. II, 1419, and argued that Fierro could be convicted on the basis of the confession alone, even if Olague's testimony was rejected in its entirety. Id. The jury convicted Cesar Fierro of capital murder and sentenced him to death.

In deference to the trial court's finding that Medrano's testimony at the suppression hearing was truthful, Fierro's coerced confession claim was denied on direct appeal and in federal habeas corpus proceedings brought in 1987. See Texas v. Fierro, 706 S.W.2d 310, 316 (Tex. Crim. App. 1986); Fierro v. Lynaugh, 879 F.2d 1276 (5th Cir. 1989), cert. denied, 494 U.S. 1060 (1990), reh'g denied, 495 U.S. 941 (1990). Fierro raised a constitutional challenge to the Texas capital sentencing scheme in post-conviction and habeas corpus proceedings brought in 1990, but did not include a coerced confession claim, since he had not yet discovered any new evidence to overcome the presumption of correctness accorded to the trial court's finding that Medrano's testimony at the suppression hearing was truthful.

After Fierro's habeas counsel suffered a heart attack and was allowed to withdraw, new counsel was appointed. With assistance from the Mexican Government that had been refused to Fierro's previous habeas attorney, see A.-4-5, Fierro renewed the investigation into the circumstances surrounding the confession.

C. 1994 State Habeas Corpus Proceedings.

In 1994, Fierro's counsel discovered new evidence indicating that Medrano's testimony at the suppression hearing was perjurious. The evidence consisted primarily of a police report that was dictated by Medrano in the hours leading to the interrogation. According to the report, Palacios telephoned Medrano at 5:00 that morning to advise that the Juarez Police "had custody" of Fierro's mother and his step-father, A.-6. The report directly conflicted with Medrano's testimony at the suppression hearing and at trial, during which he insisted, "in front of this Court" that "Mr. Palacios never told" him that the Juarez Police had taken Fierro's parents into custody. S.R. Vol. I, 120-121; S.R. Vol. II, 1173 In light of this and other evidence that was appended to a state habeas corpus application filed in 1994, the Texas Court of Criminal Appeals ordered an evidentiary hearing on Fierro's claims that his due process rights were violated by Medrano's perjured testimony.

In addition to receiving voluminous documentary exhibits and hearing the live testimony of sixteen witnesses, the state habeas judge secured through a letter rogatory the testimony of Palacios, who was residing in Mexico. Assistance from the Mexican Government was critical to obtaining a statement from Palacios, who refused to give a voluntary statement or to testify in the United States. During the earlier habeas corpus proceedings, Fierro's previous attorney requested assistance from the Mexican Government in obtaining a statement from Palacios. A.-4-5. However, due to a political climate that tolerated -- and even condoned -- gross abuses of power by Mexican police officials, the request was refused. A.-5. By the time of the 1994 state habeas hearing, however, Mexico had adopted human rights reforms to expose and rectify these abuses, and finally agreed to serve as an essential intermediary in obtaining the deposition of Palacios through a letter rogatory. A.-5, A.-7-8. Palacios's letter rogatory testimony contradicted Medrano's testimony at the suppression hearing in several key respects -- most importantly, concerning the purpose of Medrano's meeting with Palacios in the early morning hours preceding the interrogation. See S.R. Vol. I, 106-107, 119. According to Medrano's suppression hearing testimony, Palacios telephoned him at 5:00 A.M. on August 1, 1979, to report that he had ascertained Cesar Fierro's whereabouts. Medrano testified that, Palacios did not disclose Fierro's location over the telephone, and wanted to meet for breakfast in Juarez so he could disclose the location in person. S.R. Vol. I, 141-142; S.R. Vol. II, 1159. Medrano insisted that Palacios did not tell him that Cesar Fierro was at the El Paso Jail over the telephone, and surmised that Palacios wanted to meet in person to "dramatize" the disclosure. S.F. Vol. II, 1159. According to Medrano's testimony, the letters that Fierro claimed Medrano used to coerce the confession were neither transferred nor discussed during this meeting, nor at any other time. S.R. Vol. I, 108, 131-132.

In response to the letter rogatory, Palacios testified that he told Medrano over the telephone, before they met for breakfast in Juarez, that Fierro was incarcerated at the El Paso Jail. S.H. Vol. VI, State's Exh. A, 9. He testified that he ascertained Fierro's whereabouts by examining letters that Fierro's mother produced during his encounter with her that morning. Id., at 8-9. Palacios testified that the letters were written by Cesar Fierro and his brother, Sergio, and showed that the brothers were incarcerated under each other's names at different jails in Texas. Id. Although Palacios denied in the letter rogatory proceeding that he seized these letters, this testimony was impeached by the testimony of Gustavo De La Rosa Hickerson, an attorney from Juarez who had known Palacios for many years. S.H. Vol. VI, 580-582. According to this testimony, Palacios told De La Rosa that he telephoned Medrano at 5:00 that morning to tell him that Fierro was incarcerated at the El Paso Jail, and to arrange a transfer of the letters he had obtained from Fierro's mother, because the letters established that Fierro was utilizing his brother's name. Id. Palacios told De La Rosa that he could not understand why he had been vilified in the media for his role in the investigation, when all he did was provide Medrano with some letters that helped establish Fierro's whereabouts. Id.

After considering this and other evidence, the state habeas judge found that Medrano's testimony at the suppression hearing was perjurious, and that the testimony of Fierro and his parents regarding the circumstances surrounding the confession was truthful. Having found that Medrano had conspired with Palacios in the custodial detention of Fierro's parents in order to coerce the confession, the judge recommended that Fierro receive a new trial. A.-9.

The Texas Court of Criminal Appeals unanimously adopted the habeas judge's fact-findings. Ex parte Fierro, 934 S.W.2d 370, 371-372 (Tex. Crim. App. 1996). A-10. The Court also agreed that Fierro's "due process rights were violated by Medrano's perjured testimony[,]"Ex parte Fierro, 934 S.W.2d 370, 371-372 (Tex. Crim. App. 1996), and even held that the false testimony was "material" under Chapman v. California, 386 U.S. 18 (1967). In a 5-4 decision, however, the Court held that the due process violation was "harmless error" and refused to order a new trial. Fierro, 934 S.W.2d at 376. The decision was rendered on September 11, 1996, and rehearing was denied on November 27, 1996. Fierro's petition for a writ of certiorari was filed in this Court on January 27, 1997, and was denied on June 27, 1997. See Fierro v. Texas, 521 U.S. 1122 (1997). An execution date was subsequently set for November 19, 1997.

D. Gatekeeping Proceedings.

On October 20, 1997, pursuant to the gatekeeping provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 USC § 2244(b)(3)(A), Fierro filed in the Fifth Circuit a motion for leave to file a successive habeas corpus petition. This motion was filed within the one-year limitations period which began to run on November 28, 1996, the date after the Court of Criminal Appeals denied rehearing in the state habeas proceeding. (1) The Fifth Circuit granted the motion on November 11, 1997, after making prima facie findings that the factual predicate of the claims could not have been discovered previously through due diligence and that, but for constitutional error, no reasonable fact-finder would have found Cesar Fierro guilty of the offense. A.-11; see 28 U.S.C. § 2244(b)(2)(B)(i)&(ii).

Fierro was the first prisoner the Fifth Circuit found to have made a sufficiently strong showing of due diligence and innocence under AEDPA's rigorous standards to warrant the filing of a successive habeas corpus application. To this day, Fierro is aware of only five other cases nationwide in which a court of appeals has authorized the filing of a successive habeas corpus petition on this basis. (2)

E. District Court Proceedings on the Successive Habeas Corpus Petition.

After the Fifth Circuit granted leave to file the successive habeas corpus petition, the Texas Attorney General filed in the District Court a motion for a scheduling order. A.-12. The District Court entered such an order, A.-13, and Fierro filed his successive habeas corpus petition on February 27, 1998 in compliance with it. (3)

On April 8, 1998, the Attorney General moved to dismiss the habeas corpus petition, arguing that since it was filed on February 27, 1998, it was barred by AEDPA's one-year limitations provision, 28 U.S.C. § 2244(d)(1), or alternatively, that the "due diligence" standard governing successive petitions, 28 U.S.C. § 2244(b)(2)(B)(i), had not been satisfied. The District Court held that the petition was barred by AEDPA's one-year limitations provision. A-2. Although the District Court held in the alternative that the petition was barred by AEDPA's due diligence requirement, the Fifth Circuit affirmed based solely on the limitations provision. Hence the Fifth Circuit has never questioned its 1997 findings that the factual predicate of these constitutional claims could not have been discovered previously through due diligence, see 28 U.S.C. § 2244(b)(2)(B)(i), and that, but for constitutional error, no reasonable juror would have convicted Cesar Fierro. See 28 U.S.C. § 2244(b)(2)(B)(ii).

Based on its procedural rulings, the District Court dismissed with prejudice the due process/perjured testimony claims raised in the successive habeas corpus petition. A.-2. The District Court also dismissed without prejudice related claims that Fierro's Sixth Amendment rights to the effective assistance of counsel at trial and on direct appeal were violated. The Fifth Circuit sua sponte authorized Fierro to raise the ineffective assistance of counsel claims during the 1997 gatekeeping proceedings. See A.-11. Fierro had not sought leave to raise these claims because they were not exhausted. Had Fierro sought to exhaust the claims in 1997, or were he to do so now, the claims would be barred by the Texas restrictions on successive post-conviction applications, Tex. Code Crim Proc. art. 11.071 § 5(a)(1). Such a procedural default ruling would foreclose federal habeas corpus relief, because the Fifth Circuit has held that the Texas successive petition restrictions constitute an adequate and independent ground barring habeas corpus review. See Smith v. Johnson, 216 F.3d 521, 523-524 (5th Cir. 2000). Accordingly, the present certiorari proceeding is the only forum in which a court can remedy the established fact that Fierro's conviction was obtained by police brutality, a coerced confession, and the perjured testimony of a Texas police official.

REASONS FOR GRANTING THE WRIT

I.

THE FIFTH CIRCUIT'S DETERMINATION THAT THE FILING OF A MOTION FOR LEAVE TO FILE A SUCCESSIVE HABEAS PETITION IN THE COURT OF APPEALS DOES NOT MEET THE STATUTE OF LIMITATIONS FOR A SUCCESSIVE HABEAS PETITION IS AT ODDS WITH THIS COURT'S RESOLUTION OF SIMILAR PROCEDURAL QUESTIONS, THE PRACTICE OF THE LOWER COURTS IN DEALING WITH SUCCESSIVE PETITIONS MIS-FILED IN THE DISTRICT COURTS WITHOUT PREVIOUS CIRCUIT AUTHORIZATION, AND THE OPERATION OF 28 U.S.C. § 2244 (b) AND (d).
 

A. The Jurisdictional Requirement of Obtaining Leave to File a Successive Habeas Corpus Petition Distinguishes a Gatekeeping Motion from a McFarland Motion Filed in a First-time Habeas Corpus Proceeding.

AEDPA's one-year limitations provision "appl[ies] to an application for a writ of habeas corpus by a person in custody pursuant to the judgement of a State court." 28 U.S.C. § 2244(d)(1). In holding that Fierro's motion for leave to file a successive habeas corpus petition did not constitute an "application" under Section 2244(d)(1), the Fifth Circuit relied on cases involving the statute of limitations' applicability to first-time habeas corpus petitions in which motions for the appointment of counsel or for a stay of execution, pursuant to McFarland v. Scott, 512 U.S. 849 (1994), were filed before AEDPA's enactment, but the actual petition was not filed until after the enactment. The Fifth Circuit has held in such cases, "the relevant date for determining the applicability of the AEDPA ... is the date that the actual habeas corpus petition is filed." Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997)(emphasis added). (4) Analogizing a motion for leave to file a successive habeas petition to a McFarland motion, the Fifth Circuit held that only the filing of Fierro's actual successive habeas petition in the district court, not the previous filing of the motion for leave to file the successive petition in the Circuit, satisfies the statute of limitations.

AEDPA's applicability to first-time habeas corpus petitions involving pre-enactmentMcFarland motions is entirely inapposite to the operation of the limitations provision to successive habeas corpus proceedings. While it may be preferable to secure resources pursuant toMcFarland before filing a first-time habeas corpus application, the failure to do so is not a jurisdictional bar to filing the petition. However a successive habeas corpus petition cannot be filed without leave from the court of appeals. See 28 U.S.C. § 2244(b)(3)(A). Because the filing of a successive habeas corpus application is jurisdictionally dependent upon approval of a gatekeeping motion, the term "application" in the limitations provision, as applied to successive habeas corpus proceedings, must include the threshold step of requesting leave. See Hohn v. United States, 524 U.S. 246 (1998).

In Hohn, the Court considered whether the denial of an application for a certificate of appealability ("COA") under 28 U.S.C. § 2253(c) constitutes a "case" under 28 U.S.C. § 1254, conferring jurisdiction on the Court to examine the decision denying the COA. The Court rejected the characterization of a COA as "a threshold inquiry separate from the merits which, if denied, prevents the case from ever being in the court of appeals." 524 U.S. at 246. As the Court explained:

Precedent forecloses this argument. In Ex parte Quirin, 317 U.S. 1 (1942), we confronted the analogous question whether a request for leave to file a petition for a writ of habeas corpus was a case in a district court for the purposes of the then-extant statute governing court of appeals review of district court decisions.... We held the request for leave constituted a case in the district court over which the court of appeals could assert jurisdiction, even though the district court had denied the request. We reasoned, "presentation of the petition for judicial action is the institution of a suit...." 317 U.S. at 24.
 

Hohn, 524 U.S. at 246 (emphasis added).

Hohn recognizes that certain preliminary proceedings in a habeas case are indistinguishable from the presentation of the case on the merits. In this regard, a gatekeeping proceeding under Section 2244(b)(3) is analogous to a COA. It is "a proceeding seeking relief for an immediate and redressable injury, i.e., wrongful detention in violation of the Constitution." Hohn, 424 U.S. at 241. Like a COA, a gatekeeping motion involves "adversity as well as the other requisite qualities of a 'case' as the term is used in both Article III of the Constitution and the statute here under consideration." Id. In contrast neither adversity nor other hallmarks of a "case" are present in a McFarland motion filed by an indigent first-time capital habeas petitioner, because there is a statutory right to counsel in such proceedings. See 21 U.S.C. § 848 (q). Moreover the denial of a COA or a gatekeeping motion -- but not a McFarland motion -- terminates the right of federal habeas corpus review.

Although the Fifth Circuit is the first court to examine the issue, the appeals courts that have applied AEDPA's limitations provision to successive habeas corpus petitions have implicitly construed the gatekeeping motion as the relevant pleading to be filed in compliance with the one-year period. See, e.g., In re Sims, 111 F.3d 45, 47 (6th Cir. 1997)(holding that "motion to file the second or successive petition or § 2255 motion will be deemed filed, for purposes of the one-year limitation periods established by § 2244(d) and § 2255, on the date that the § 2244(b)(3) motion is given to prison authorities for mailing")(emphasis added).

This interpretation is apparent as well from the conclusion reached by every court that has examined the thirty-day limit on gate-keeping proceedings contained in 28 U.S.C. § 2244(b)(3)(D), that this deadline is "advisory rather than mandatory." In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997); Browning v. United States, 241 F.3d 1262, 1263-1264 (10th Cir. 2001)("We are convinced we continue to have jurisdiction over such [gatekeeping] motions notwithstanding the expiration of the thirty-day period"); Gray-Bey v. United States, 201 F.3d 866, 867 (7th Cir. 2000)(exceeding the period because "[t]aking the extra time to allow for full presentation of the issues will make the eventual decision more helpful to future litigants");Rodriguez v. Superintendent, Bay State Correctional Center, 139 F.3d 270, 272-273 (1 st Cir. 1998) (interpreting thirty-day limit as "a guideline, not as an imperative"); In re Vial, 115 F.3d 1192, 1194 n.3 (4th Cir. 1997)(deciding to exceed 30-day period because the issue was sufficiently important to justify the delay) Galtieri v. United States, 128 F.3d 33-37 (2d Cir. 1997)(30-day period must be applied with "flexibility" and must yield, where necessary, to "reasoned adjudication"); cf. Thomas v. Superintendent, 136 F.3d 227 (2d Cir. 1997)(holding that thirty-day period does not begin to run "until such time as [the Court has] a record sufficient to decide the question that is presented"); In re Byrd, 269 F.3d 585, 585-586 (6th Cir. 2001)(remanding to the district court for development of factual record sufficient to permit consideration of gatekeeping motion). (5)

Given that the limitations provision is not tolled during the pendency of the gatekeeping process, see 28 U.S.C. § 2244(d)(2); Duncan v. Walker, 533 U.S. 167 (2001)(holding that tolling is restricted to applications for Statepost-conviction or collateral review), the holdings that the courts of appeals are at liberty to exceed the thirty-day limit implicitly recognize that the limitations provision is satisfied by the filing of the motion for leave to file a successive habeas corpus petition. Because an applicant is jurisdictionally precluded from filing a successive habeas corpus petition without leave from the court of appeals, and he can neither predict nor control how long it will take the court of appeals to rule on the gatekeeping motion, the limitations provision must be satisfied by the filing of the gatekeeping motion within the one-year period. Cf.Lambert v. Blackwell, 175 F. Supp.2d 776 (E. D. Pa. 2001) (holding that period during which petitioner was "jurisdictionally ineligible" to file habeas corpus petition, because she had been unconditionally released from all forms of custody, could not be counted against her in determining timeliness of habeas corpus petition).

This construction of the statute is consistent with AEDPA's objectives. The statute contemplates a "prima facie" finding of merit to be made by the court of appeals, 28 U.S.C. § 2244(b)(3)(C), to be followed by a more careful and measured analysis of the issues by the district court. See 28 U.S.C. § 2244(b)(4)(requiring district court to dismiss claims raised in successive habeas corpus application that do not overcome the restrictions on successive petitions). The cases that pass through the gateway are so rare and unique that it is reasonable for the procedural directives, including filing deadlines, to be set by the courts. Petitioners who fail to submit their pleadings in compliance with a judicially imposed deadline of which they have notice are subject to the court's power to impose sanctions - even by having their pleadings struck. See Fed. R. Civ. P. 41(b)(authorizing dismissal of civil cases for failure to prosecute or comply with "any order of court"); Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002)(upholding dismissal of habeas corpus petition for failure to prosecute and failure to comply with court-imposed deadlines).

This interpretation is also consistent with AEDPA's objectives of finality, comity, and federalism. The gatekeeping standards insulate the vast majority of state court judgments from review in successive habeas corpus proceedings. Aside from the Court's rarely invoked original habeas corpus jurisprudence, applicants who do not survive the initial screening will have no further access to the federal courts. See 28 U.S.C. § 2244(b)(3)(E) (court of appeals ruling on gatekeeping application "shall not be the subject of a petition for rehearing or for a writ of certiorari"); Felker v. Turpin, 518 U.S. 651, 658-659 (1996)(stating that provision "prevents this Court from reviewing a court of appeals order denying leave to file a second habeas petition by appeal or by writ of certiorari[,]" although the Court retains rarely invoked original jurisdiction to grant habeas corpus relief).

As for the handful of prisoners who pass through AEDPA's exceedingly narrow gateway, the right of access to the federal courts is paramount. The finding that there has been an injustice so exceptional that successive habeas corpus review is warranted casts the legitimacy of the state court judgment into doubt. A blanket imposition of a statutory time-limit would undermine the careful investigation and measured review to be expected of the federal courts where it appears that there has been such an extraordinary injustice.

B. The Holding That Fierro's Successive Habeas Corpus Application Is Time-barred Is an Abuse of Equitable Discretion.
 

Prospective applicants are plainly required to obtain leave from the appeals court "before" filing a successive habeas corpus petition in the district court. 28 U.S.C. § 2244(b)(3)(A). Nevertheless, some successive petition applicants mistakenly file the successive petition initially in the district court. When a district dismisses such a petition because it was mistakenly filed in the wrong court, "a quandry may emerge when such dismissal is combined with the one-year statute of limitations[.]" Guenther v. Holt, 173 F.3d 1328, 1329 n. 2 (11th Cir. 1999). Accordingly the lower courts have adopted a mechanism whereby successive habeas corpus applications erroneously filed in the district court without prior authorization are transferred to the court of appeals and treated as motions for leave to file successive petitions. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997); Coleman v. United States, 106 F.3d 339, 340-341 (10th Cir. 1997); Liriano v. United States, 95 F.3 119, 123 (2d Cir. 1996); see also Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997)(approving of the procedure, in dicta); Benton v. Washington, 106 F.3d 162, 165 (7th Cir. 1996)(same). If authorization to file the successive petition is granted in such cases, "the date of filing for limitations purposes would relate back to the initial, albeit improper, filing in the district court." See Guenther v. Holt, 173 F.3d, at 1330.

Fierro is in a far better equitable position than a petitioner who files a successive petition in the district court. By filing a motion for leave to file a successive petition in the court of appeals, Fierro complied with the successive petition provisions of the statute. Fierro's filing decisions thereafter were based on a reasonable interpretation of the statute. He had no reason to believe that the statute of limitations was not satisfied by the filing of the motion for leave to file a successive petition. Indeed, the Attorney General must also have believed that the filing of the gatekeeping motion satisfied the statute of limitations. On a date after the statute would have run had it not been satisfied by the filing of the gatekeeping motion, the Attorney General filed a motion for a scheduling order in the district court. Had he believed the statute of limitations still had not been satisfied at that point, he would have asked for dismissal of the petition for failure to comply with the statute rather than for a scheduling order.

Moreover Fierro's gatekeeping motion contained all the required elements of a habeas corpus petition, including a jurisdictional statement, a statement of facts, and a statement of claims. The pleading was in "substantially the form annexed" to the Rules Governing Section 2254 Cases for the petition itself. See Habeas Rule 2(c).

In these circumstances, it ridicules equity and due process that Fierro's habeas corpus petition would have been deemed timely if he had ignored the successive petition procedures in the statute and filed his gatekeeping pleading directly in the district court, under the caption "habeas corpus application," yet be out of court, as the Fifth Circuit has held, for complying with the statute. Cf. Carey v. Saffold, 122 S.Ct. 2134, 2140 (2002)("for purposes of applying a federal statute that interacts with state procedural rule, we look to see how a state procedure functions, rather than the particular name that it bears."); Benton v. Washington, 106 F.3d 162, 164-165 (7 thCir. 1996)(holding that habeas corpus petition filed after prior petition was dismissed for failure to pay filing fee was not "second or successive" within meaning of Section 2244(b); "[a]ny petition returned under Rule 3(e) [requiring substantial compliance with rules 2 and 3] should be disregarded for purposes of § 2244(b)"); Chambers v. United States, 106 F.3d 472, 474-475 (2ndCir. 1997)("mis-labeling must be disregarded in applying the gatekeeping provision"). (6)

II.

IN A CASE IN WHICH THE COURT OF APPEALS HAS DETERMINED THAT A CONDEMNED PRISONER'S SUCCESSIVE HABEAS PETITION MEETS THE INNOCENCE THRESHOLD OF 28 U.S.C. § 2244(b)(2)(B)(ii), BUT IS BARRED BY THE AEDPA'S STATUTE OF LIMITATIONS, THE EIGHTH-AND-FOURTEENTH-AMENDMENT-BASED CONCERN THAT INNOCENT PEOPLE NOT BE PUT TO DEATH CALLS FOR AN EXCEPTION TO THE PRECLUSIVE EFFECT OF THE STATUTE OF LIMITATIONS.

In holding that the execution of mentally retarded individuals violates the Eighth Amendment in Atkins v. Virginia, 122 S.Ct. 2242 (2002), the Court stated that it could not "ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated." Id., at 2252. The Court went on to describe two recent cases involving mentally retarded individuals "who confessed to crimes that they did not commit." Id. Through DNA exonerations, it is now established that "[e]ven able-minded adults, subjected to the right combination of coercion, sleeplessness, and grief, can falsely confess." J. Holdridge, True Confessions, Atlantic Monthly, July/August 2002; J. Wilgoren, Confession Had His Signature; DNA Did Not, New York Times, Aug. 26, 2002 (describing DNA exoneration of Eddie Joe Lloyd, who gave detailed confession to crime he did not commit). As the United States Attorney General recently explained:

We don't believe extorted confessions are reliable. We think that when you force someone, either with physical threats or with behavior which threatens their own well-being, to speak, they're likely to tell you something that's not true. Things that aren't true aren't valuable to us.

Nightline, One Month Later America Strikes Back, Oct. 11, 2001.

The fabrication of evidence and perjured testimony of police officers in criminal cases has also shaken public confidence in the criminal justice system. See, e.g., J. Sterngold, Los Angeles Police Officials Admit Widespread Lapses, New York Times, Internet Ed., Feb. 17, 2000 (discussing wrongful convictions resulting from corruption in Los Angeles Police Department's Rampart Division). In an unbroken line of cases, this Court has held that "a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976); United States v. Bagley, 473 U.S. 667, 678 (1985).

The state courts have found that police officials on both sides of the United States and Mexican border engaged in an abusive, barbaric scheme to coerce a confession that was critical to Mr. Fierro's capital murder conviction. Moreover, the Fifth Circuit has made a threshold finding that, but for Detective Medrano's perjured testimony which covered-up the scheme for over a decade, no reasonable factfinder would have convicted Fierro. A.-11. Relying on Graham v. Johnson, 168 F.3d 762, 787-788 (5th Cir. 1999), however, the Fifth Circuit determined that it is powerless to vacate Fierro's unquestionably unconstitutional conviction and death sentence because there is no "fundamental miscarriage of justice" exception to the one-year limitations provision. Fierro, 294 F.3d, at 684 n. 17. This holding cannot be reconciled with the Court's construction of the Due Process Clause, see, e.g., Agurs, 427 U.S., at 103, and with the Court's habeas corpus jurisprudence.

As the Court recounted in Schlup v. Delo, 513 U.S. 298 (1995), there has long been a tension in federal habeas corpus between the need for finality of criminal judgments and the need for finality to yield, in some cases, to the "ends of justice." Sanders v. United States, 373 U.S. 1, 15-17 (1963); see Schlup, 513 U.S. at 317-323. The Court has accommodated this tension by enforcing finality through strict application of procedural default and abuse of the writ (and successive petition) rules, while still permitting claims to be heard that would otherwise be barred by these rules when the petitioner can make a threshold showing that allowing the conviction to stand would result in a "fundamental miscarriage of justice." Id., at 321. The common denominator of the "fundamental miscarriage of justice" exception to the rules of finality is that when a petitioner can make the requisite showing, that alone is enough to warrant consideration of the claim on the merits, whether the procedural context is a default in preserving the claim by proper objection or argument in the state courts, see Murray v. Carrier, 477 U.S. 478, 495 (1986), or the presentation of previously-adjudicated claim or a new claim in a subsequent federal habeas petition. See McCleskey v. Zant, 499 U.S. 467, 494 (1991). Under this Court's habeas jurisprudence, once the fundamental miscarriage of justice standard is satisfied, there are no additional procedural requirements to obtaining federal review of the constitutional claim.

In Graham v. Johnson, 168 F.3d 762, 788 (5th Cir. 1999), the Fifth Circuit characterized the miscarriage of justice exception as a procedural, not a constitutional, rule. Accordingly, the Fifth Circuit construed AEDPA's preclusive procedures to swallow entirely the longstanding miscarriage of justice exception to the preclusion rules of habeas procedure that this Court has recognized and applied for at least four decades. For these reasons, the Fifth Circuit refused to examine the merits of Fierro's constitutional claim after having determined that his successive habeas corpus petition was barred by AEDPA's statute of limitations.

This Court has yet to resolve whether the miscarriage of justice exception is a procedural or constitutional rule. See Alexander v. Keane, 991 F. Supp. 329, 1998 U.S. Dist. LEXIS 350 (S.D.N.Y. 1998). However, several lower courts have assumed that a petitioner who satisfied theSchlup miscarriage of justice standard would be entitled to federal review of his claim, even without satisfying the AEDPA's procedural restrictions. See In re Byrd, 269 F.3d 585, 587 (6 thCir. 2001)(Jones, J., joined by Daughtrey, Cole, and Clay, JJ., concurring in remand for evidentiary hearing on miscarriage of justice exception)("If the petitioner is unable to satisfy the statutory requirements of the AEDPA, the court of appeals may yet authorize a second or successive filing if the court determines that this is necessary to prevent a miscarriage of justice");Holloway v. Jones, 166 F. Supp.2d 1185, 1190 (E. D. Mich. 2001); Cromwell v. Keane, 33 F. Supp.2d 282 (S.D.N.Y. 1999); Dexter v. Stegall, 99-71162-DT, 1999 U.S. Dist. LEXIS 10167 (E.D. Mi. 1999). Cf. Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir. 2002)(remanding for evidentiary hearing to give petitioner opportunity to develop "factual case meeting the exacting gateway standard established by the Supreme Court in Schlup for overriding a petitioner's clear failure to meet" one-year limitations deadline). Because the miscarriage of justice standard is satisfied in this case, Mr. Fierro's case presents the right opportunity for the Court to address this question.

III.

CONGRESS DID NOT INTEND THE STATUTE OF LIMITATIONS TO APPLY TO DEATH-ROW PRISONERS THAT SATISFY AEDPA'S STRICT STANDARD OF INNOCENCE

In authorizing Fierro to pursue his claim of police misconduct, the Fifth Circuit concluded that, in view of Fierro's newly discovered evidence, "no reasonable factfinder would have found [Fierro] guilty." 28 U.S.C. § 2244(b)(2)(B)(ii). When a court of appeals authorizes a successive habeas petition on the grounds that the applicant has established his actual innocence, the statute of limitations provision contained in a different subsection of the AEDPA does not apply.

For more that a quarter-century, this Court has acknowledged in an unbroken line of authority that, despite the tension between federal habeas review and the finality of state court judgments, the interference with finality is not a concern when the person in state custody is actually innocent. Simply stated, a State has no legitimate interest in incarcerating, much less executing, someone who did not commit the crime for which he was charged and convicted. See,e.g., Stone v. Powell, 428 U.S. 465, 491 n. 31 (1976) ("Resort to habeas corpus, especially for purposes other than to assure that no innocent person suffers an unconstitutional loss of liberty, results in serious intrusions on values important to our system of government) (emphasis added);Murray v. Carrier, 477 U.S. 478, 496 (1986) (holding that "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a [writ of habeas] may [be] grant[ed] even in the absence of a showing of cause for the procedural default."); McCleskey v. Zant, 499 U.S. 467, 494 (1991) (reaffirming power of federal courts to grant habeas relief "when a constitutional violation probably has caused the conviction of one innocent of the crime"); Herrera v. Collins, 506 U.S. 390, 404, (1993) (noting "that our habeas jurisprudence [does not] cast[] a blind eye toward innocence").

Most recently, in its last pronouncement in this area prior to the enactment of the AEDPA this Court held that a prima facie claim of actual innocence operates to dissolve procedural barriers that would otherwise bar a federal court from resolving the merits of a claim of constitutional error in a federal habeas corpus proceeding. Schlup v. Delo, 513 U.S. 298, 315-18 (1995). The Court in Schlup reaffirmed its commitment to the principle that the value of finality "must yield to the imperative" of ensuring that someone who is "actually innocent" not be executed. Murray v. Carrier, 477 U.S. 478, 495-96 (1986).

In enacting the AEDPA, Congress was legislating against this backdrop. In numerous contexts, of course, this Court presumes that when legislation occurs in an area of significant judicially-created doctrine - like the habeas corpus area - that legislation is meant to preserve the judicially-created doctrine, unless Congress explicitly and unmistakably alters it. See, e.g.,Williams v. Taylor, 529 U.S. 362, 379 (2000) ("If Congress had intended to require such an important change in the exercise of our jurisdiction, we believe it would have spoken with much greater clarity than is found in the text of AEDPA."); Block v. Community Nutrition Institute, 467 U.S. 340, 345-348 (1984) (involving prudential standing limitations); Bennett v. Spear, 520 U.S. 154, 163 (1997) (same); EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (involving presumption against extra-territorial application of law); see also United States v. United States Gypsum Co., 438 U.S. 422, 437 (1978) ("Congress will be presumed to have legislated against the background of our traditional legal concepts.").

There is therefore a presumption that, in enacting the AEDPA, Congress aimed at codifying the rule that federal courts have the power to issue a writ of habeas corpus when an inmate establishes that he is probably innocent. Further, both the language of the AEDPA as well as the legal background against which Congress was legislating suggest that the statute of limitations provision contained in § 2244(d) does not apply when a death row inmate passes through the actual innocence gateway of § 2244(b). The reason, of course, is that the statute of limitations provision of § 2244(d) is meant to provide finality to state court judgments, but even the interest in finality is insufficient to justify the execution of someone who is innocent. This Court has observed on more than one occasion that language of the AEDPA is not perfectly pellucid. See, e.g., Lindh v. Murphy, 521 U.S. 320, 337-38 (1997) (Rehnquist, C.J., dissenting);see also Libby v. Magnusson , 177 F.3d 43 (1st Cir. 1999). Nevertheless, coupled with its presumed knowledge of existing law, Congress's choice of language in § 2244(b) indicates that it did not intend the statute of limitations to apply to inmates who can demonstrate their actual innocence - a conclusion that has been explicitly reached by at least one district court and implicitly embraced by at least one court of appeals. Majoy v. Roe, supra, 296 F.3d at 776-77 (noting that the question has not been decided by the lower courts or this Court); Holloway v. Jones, 166 F.Supp.2d 1185, 1190 (E.D.Mich.2001) ("The Court therefore holds that an actual innocence exception exists to the statute of limitations contained within § 2244(d)(1).").

In most respects, sections 2244(b) and 2244(d) are parallel. For example, § 2244(d)(1) identifies four possible moments from which the statute of limitations can begin to run. One starting point is the date on which this Court identifies a retroactively applicable new rule, 28 U.S.C. § 2244(d)(1)(C); another starting point is the date on which the factual predicate of a claim could have been discovered through due diligence, 28 U.S.C. § 2244(d)(a)(D). These concepts are also contained in § 2244(b), which authorizes the court of appeals to permit the filing of a successive application if this Court has identified a retroactively applicable new rule or the petitioner has located new evidence.

However, whereas § 2244(b) parrots the language of § 2244(d) in certain (indeed, most) respects, the actual innocence provision of § 2244(b) has no analogue in § 2244(d). The insertion of the actual innocence exception in § 2244(b), with no attachment of a statute of limitations provision, is consistent with Congress's understanding of the recurrent principle that there can be no constraint on a federal court's power to issue a writ of habeas corpus when a state prisoner is actually innocent. Accordingly, a reasonable reading of these two subsections together is that the "new facts" provision of § 2244(d) - which creates the statute of limitations and which does notmention actual innocence - tolls the statute of limitations for all claims that rely on new evidenceother than claims of actual innocence ; whereas § 2244(b) provides that where new evidence establishes actual innocence, the statute of limitations simply does not apply.

Finally, it is well-established that statutes should be read so as to avoid calling into doubt their constitutionality. See, e.g., Gomez v. United States, 490 U.S. 858, 864 (1989) ("It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question."); Communications Workers v. Beck, 487 U.S. 735, 762 (1988) ("federal statutes are to be construed so as to avoid serious doubts as to their constitutionality").

At a minimum, permitting a state to execute someone who is actually innocent would raise serious constitutional questions. See Herrera v. Collins, 506 U.S. 390, 431-32 (1993)(Blackmun, J., dissenting, joined by Stevens and Souter, JJ.); id. at 420 (O'Connor, J., joined by Kennedy, J., concurring) (noting that issue before the Court was not whether the Constitution forbids the execution of someone innocent); see also Calderon v. Thompson, 523 U.S. 538, 558-60 (1998) ("The miscarriage of justice standard is altogether consistent . . . with AEDPA's central concern that the merits of concluded criminal proceedings not be revisited in the absence of a strong showing of actual innocence."); Collins v. Youngblood, 497 U.S. 37, 42-43 (1990) (noting that ex post facto laws are unconstitutional because they punish action that was innocent when done). By reading the AEDPA as not containing a statute of limitations provision for claims that establish a death row inmate's actual innocence, the Court avoids reading the statute in a way that raises grave questions concerning its constitutionality.

Implicit in the Court's recent recognition that "a disturbing number of inmates on death row have been exonerated," Atkins, 122 S.Ct. at 2252, is a much more troublesome reality - that some inmates on death row who should have been exonerated have, instead, been executed. Cesar Fierro will become one of that most disturbing host of people if the Court fails to grant certiorari.

CONCLUSION

For the reasons set forth herein, this Court should grant certiorari to review the decision of the Fifth Circuit in Mr. Fierro's case.

FOOTNOTES

1. The AEDPA was effective April 23, 1996, but because Mr. Fierro had a "properly filed" state habeas corpus proceeding pending at that time and until November 27, 1996, the one-year limitations period did not begin to run until November 28, 1996. 28 U.S.C. § 2244(d)(2). Even if the time within which Mr. Fierro petitioned this Court for review of the Texas Court of Criminal Appeals' decision did not toll the statute of limitations, seeDuncan v. Walker, 533 U.S. 167 (2001)(holding that tolling is restricted to applications for State post-conviction or collateral review), the filing of the motion for leave to file a successive habeas petition in the Fifth Circuit was timely - less than eleven months of the limitations period had run.
 

2.  See Douglas v. Gibson, No. 01-6380 (10th Cir. Dec. 12, 2001)(allowing successive petition to proceed),  id., No. 02-CV-101 (successive habeas corpus petition filed in W. D. Ok. Jan. 28, 2002); In re: Murphy, No. 01-41112 (5th Cir. Oct. 30, 2001);  LaFevers v. Gibson, No. 00-6248 (10th Cir. July 31, 2000)(authorizing successive petition), id. , 238 F.3d 1263 (10th Cir. 2001)(denying habeas corpus relief after finding lack of "due diligence");  Easterwood v. Champion, 213 F.3d 1321 (10th Cir. 2000);  In re: Pruett, No. 99-10702 (5th Cir. Aug. 20, 1999);  Pruett v. Cockrell, No. 4:99-CV-0781-Y (N. D. Tx. Oct. 4, 2001)(denying relief on successive habeas corpus petition). 

3. Along with the successive habeas corpus petition, Fierro filed in the District Court a motion to vacate its prior judgment denying habeas corpus relief, pursuant to Fed. R. Civ. P. 60(b), arguing that the earlier judgment was the product of the State's fraud upon the courts. The District Court denied the motion, and the Fifth Circuit affirmed. See Fierro v. Johnson, 197 F.3d 147 (5th Cir. 1999), cert. denied, 530 U.S. 1206 (2000).

4. But see Calderon v. U.S. District Court (Kelly), 163 F.3d 530 (9th Cir. 1998);Payton v. Woodford, No. 00-99000, 2002 U.S. App. LEXIS 15416 (9th Cir. Aug.1, 2002), slip op. at *13-*14 (holding that AEDPA is inapplicable to cases in which McFarlandmotions are filed before the statute was enacted, even if the actual habeas corpus petition is not filed until after the enactment date).

5. The Fifth Circuit exceeded the 30-day period without comment in deciding the gatekeeping applications in In re Gibbs, No. 00-20540 (5th Cir. 2000), and In re Pruett, No. 99-10702 (5th Cir. Aug. 20, 1999). A.-14-15.

6. By way of analogy, the courts have held that the filing of a document other than a Notice of Appeal suffices to meet the deadline for a federal appeal even though that time-limit is jurisdictional and AEDPA's statute of limitations is not. See, e.g., Muniz v. United States, 236F.3d 122, 125 (2d Cir. 2001) (per curiam) ("an application for a certificate of appealability filed pro se within the time period required to file a notice of appeal under FED. R. APP. P. 4(a)(1) should be construed as a timely notice of appeal"); Rodgers v. Wyoming Att'y Gen., 205 F.3d 1201, 1204 (10th Cir. 2000) ("[a] document, such as an application for a certificate of probable cause or certificate of appealability, is the functional equivalent of a notice of appeal if it contains ... three elements of notice required by Rule 3" - "(a) a specification of 'the party or parties taking the appeal'; (b) a designation of 'the judgment, order, or part thereof being appealed'; and (c) the name of 'the court to which the appeal is taken'" (quoting FED. R. APP. P. 3(c)(1)); "for notice of appeal requirements, the filings of counseled habeas petitioners should be given the same liberal construction as those of pro se petitioners"); Haney v. Addison, 175 F.3d 1217, 1219 (10th Cir. 1999) (applying circuit's practice of "permitt[ing] the filing of a pro se docketing statement to serve as the functional equivalent of a notice of appeal," thereby rendering appeal timely); Sweet v. Delo, 125 F.3d 1144, 1148 n.4 (8th Cir. 1997), cert. denied, 523 U.S. 1010 (1998); Ray v. Cowley, 975 F.2d 1478, 1479 (10th Cir. 1992) (pro se petitioner's application for certificate of probable cause served as "functional equivalent of a notice of appeal" because it "identified the parties and the order that [petitioner] sought to appeal, and indicated his intent to take an appeal"); Hamilton v. Ford, 969 F.2d 1006, 1010 n.2 (11th Cir. 1992), cert. denied, 507 U.S. 1000 (1993) (pro se petitioner's motions for certificate of probable cause and in forma pauperis status served as adequate substitutes for notice of appeal); Ortberg v. Moody, 961 F.2d 135, 137 (9th Cir. 1992) (circuit rule that pro se petitioner's "'request for a certificate of probable cause can serve 'double duty' as notice of appeal" is "equally applicable to petitioners proceeding through counsel" (citations omitted).


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