No. 02-6336

_______________________________________________
 

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

_________________________________
 

REPLY TO RESPONDENT'S BRIEF IN OPPOSITION

_________________________________
 
 
 
 
 
 
 
 
 

November 18, 2002
 

TABLE OF CONTENTS
 
 
 

TABLE OF CONTENTS i
 

TABLE OF AUTHORITIES ii
 

ARGUMENT 1
 

THE ATTORNEY GENERAL HAS MIS-CHARACTERIZED THE FACTS AND THE COURSE OF THE PRIOR PROCEEDINGS 1
 

THE COURT SHOULD GRANT REVIEW BECAUSE THE FIFTH CIRCUIT'S HOLDING THAT THE RELEVANT FILING FOR COMPLIANCE WITH THE STATUTE OF LIMITATIONS IN SUCCESSIVE HABEAS PROCEEDINGS IS THE ACTUAL PETITION, AND NOT THE GATEKEEPING MOTION, CONFLICTS WITH THE PRACTICES AND PROCEDURES APPLIED TO SUCCESSIVE HABEAS PROCEEDINGS IN EVERY OTHER JURISDICTION 6
 

The Disparate Application of AEDPA's Statute of Limitations in Capital Habeas Proceedings is a Matter Worthy of the Court's Review 6
 

The Holding that the Statute of Limitations was not Satisfied Even Though Mr. Fierro's Gatekeeping Motion was filed within AEDPA's One-Year Period Conflicts with the Earlier Conclusion that was Obviously Reached by the Attorney General in this Case 9
 

The Argument that the Statute of Limitations was Satisfied by the Filing of the Motion for Authorization within AEDPA's One-Year Limitations Period is Properly Before the Court 12
 

THE MAGNITUDE OF THE INJUSTICE TO MR. FIERRO, COUPLED WITH THE TANGLED APPLICATION OF THE AEDPA IN HIS CASE, MAKES HIS CASE EMINENTLY WORTHY OF REVIEW 13
 
 
 
 
 

TABLE OF AUTHORITIES
 

CASES
 

Baker v. Estelle, 711 F.2d 44 (5th Cir. 1983), cert. denied, 464 U.S. 1048 (1984) 12
 

Browning v. United States, 241 F.3d 1262 (10th Cir. 2001) 8
 

Cantu-Tzin v. Johnson, 162 F.3d 295 (5th Cir. 1998), cert. denied, 525 U.S. 1091 (1999) 10, 11
 

Ex parte Fierro, 934 S.W.2d 370 (Tex. Crim. App. 1996), cert. denied, 521 U.S. 1122 (1997) 3, 4
 

Fierro v. Lynaugh, 879 F.2d 1276 (5th Cir. 1989), cert. denied, 494 U.S. 1060 (1990), reh'gdenied, 495 U.S. 941 (1990) 1, 2
 

Foster v. Schomig, 223 F.3d 626 (7th Cir. 2000), cert. denied , 532 U.S. 944 (2001) 7
 

Garceau v. Woodford, 275 F.3d 769 (9th Cir. 2001), cert. granted, 71 U.S.L.W. 3233 (01-1862)(Oct. 1, 2002) 7
 

Gray-Bey v. United States, 201 F.3d 866 (7th Cir. 2000) 8
 

In re Siggers, 132 F.3d 333 (6th Cir. 1997) 8
 

In re Sims, 111 F.3d 45 (6th Cir. 1997) 7
 

In re Vial, 115 F.3d 1192 (4th Cir. 1997) 8
 

Isaacs v. Head, 300 F.3d 1232 (11th Cir. 2002) 7
 

Johnson v. Puckett, 176 F.3d 809 (5th Cir. 1999), reh'g en banc denied, 184 F.3d 820 (5th Cir. 1999) 12
 

Lookingbill v. Cockrell, 293 F.3d 256 (5th Cir. 2002) 8
 

McFarland v. Scott, 512 U.S. 849 (1994) 7, 10
 

Moore v. Gibson, 195 F.3d 1152 (10th Cir. 1999), cert. denied , 530 U.S. 1208 (2000) 7
 

Ortberg v. Moody, 961 F.2d 135 (9th Cir. 1992), cert. denied, 506 U.S. 878 (1992) 8
 

Owens v. Okure, 488 U.S. 235 (1989) 9
 

Rodgers v. Wyoming Atty's Gen., 205 F.3d 1201 (10th Cir. 2000) 8
 

Rodriguez v. Superintendent, 139 F.3d 270 (1st Cir. 1998) 8
 

Texas v. Fierro, 706 S.W.2d 310 (Tex. Crim. App. 1986) 2
 

Williams v. Cain, 125 F.3d 269 (5th Cir. 1997) 7
 

Williams v. Coyle, 167 F.3d 1036 (6th Cir. 1999) 7
 

STATUTES
 

Fed. R. App. Proc. 22(b) 13
 

Rules Governing Section 2254 Cases, Habeas Rule 2(c) 12
 

21 U.S.C. § 848(q)(4)(B) 10
 

28 U.S.C. § 2244(d) 13

____________________________________________
 

No. 02-6336

_______________________________________________
 

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

_________________________________
 

REPLY TO RESPONDENT'S BRIEF IN OPPOSITION

_________________________________


 


Cesar Fierro states the following in reply to the Respondent's Brief in Opposition:

THE ATTORNEY GENERAL HAS MIS-CHARACTERIZED THE FACTS AND THE COURSE OF THE PRIOR PROCEEDINGS.
 

From the inception of this case, Cesar Fierro has insisted that he is innocent, and that he falsely confessed to Detective Medrano to spare his parents from torture by the Juarez Police. Mr. Fierro pursued his coerced confession claim at a pretrial suppression hearing, during the trial, on direct appeal, and through the initial round of federal habeas corpus proceedings -- which concluded in 1990. 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). Relying on the trial judge's finding that Medrano's testimony at the suppression hearing was truthful, every court that considered Mr. Fierro's coerced confession claim until the 1994 post-conviction proceedings held that the confession was voluntary. 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). Although these rulings forced Mr. Fierro to pursue other avenues for relief, he never abandoned his assertion that the confession was false and coerced, and that he is innocent.

In 1994, represented by new counsel and with assistance from the Mexican Government that was previously withheld for political reasons, (1)

Mr. Fierro renewed his factual innocence investigation. While reviewing the District Attorneys file, his attorneys discovered a supplemental police report that was dictated by Medrano on the morning he interrogated Cesar Fierro. The report shows that, contrary to his insistent testimony at the suppression hearing and at trial, Medrano had information before the interrogation that the Juarez Police had taken Mr. Fierro's parents into custody. Pet. Br. App., A-6.

Because the supplemental police report so strongly corroborated the suppression hearing testimony of Mr. Fierro and his parents respecting the coercion of the confession, its discovery cast the case in an entirely new light, and prompted the lead trial prosecutor to submit an affidavit in support of Mr. Fierro's 1994 application for state post-conviction relief. Pet. for Cert., at A-3.

After a lengthy evidentiary hearing on Mr. Fierro's 1994 post-conviction application, the post-conviction judge found that Medrano's suppression hearing testimony was false, and that the confession was coerced. The post-conviction judge ruled that the due process violations were serious enough to warrant a new trial. Cert. Pet. App., A-9.

In its 1996 opinion, the Texas Court of Criminal Appeals adopted the post-conviction judge's fact-findings in their entirety. Ex parte Fierro, 934 S.W.2d 370, 371 (Tex. Crim. App. 1996). Although the decision explicitly addresses the police perjury claim and not the coerced confession claim, see id., this distinction is meaningless. The Court of Criminal Appeals adopted every finding made by the post-conviction judge, including that "at the time of eliciting the Defendant's confession, Det. Medrano (now deceased) did have information that the Defendant's mother and step-father had been taken into custody by the Juarez police with the intent of holding them in order to coerce a confession from the Defendant, contrary to said Det. Medrano's testimony at the pretrial suppression hearing." Id. (emphasis added). The argument that the Court of Criminal Appeals did not find that the confession was coerced is a desperate and misleading parsing of the decision. Because it is so well documented that tactics of this nature have led to countless wrongful convictions, the findings of coercion are cause for grave concern.

The Texas Court of Criminal Appeals 1996 decision to uphold the conviction notwithstanding the findings of Medrano's misconduct provoked four separately written dissenting opinions. See Ex parte Fierro, 934 S.W.2d 370, 377-392 (Tex. Crim. App. 1996). Rehearing was denied on November 27, 1996, and Mr. Fierro petitioned the Court for certiorarion January 27, 1997. The Court deniedcertiorari on June 27, 1997. Fierro v. Texas, 521 U.S. 1122 (1997). Mr. Fierro's gatekeeping motion was filed in the Fifth Circuit on October 20, 1997, over one month before AEDPA's statute of limitations is alleged to have expired.

On November 11, 1997, the Fifth Circuit entered its exceedingly rare order authorizing Mr. Fierro to file a successive habeas corpus application based on its threshold findings that the "due diligence" and "innocence" standards of 28 U.S.C. § 2244(b)(2)(B) were satisfied. The Fifth Circuit appointed two attorneys to represent Mr. Fierro in the successive habeas corpus proceedings. Pet. for Cert., at A-11. The Attorney General's suggestion that Mr. Fierro's habeas attorneys were "aware" that the statute of limitations was running after the gatekeeping proceedings is absolutely false. As the conduct of both Mr. Fierro's attorneys and the Attorney General in the aftermath of the gatekeeping proceeding make clear, both parties construed the statute of limitations as inapplicable following the gatekeeping proceedings.

On November 21, 1997 -- before the statute of limitations is alleged to have expired -- Mr. Fierro filed in the District Court a motion to substitute one of his court-appointed attorneys for the purpose of "preparing and filing" the successive petition. The Attorney General's motion for a scheduling order was filed on December 19, 1997 -- a date after the statute of limitations is alleged to have expired. On December 23, 1997, Mr. Fierro's attorneys responded to the Attorney General's request for a scheduling order by proposing a filing date of February 2, 1998. The Attorney General did not object.

On December 30, 1997, the Attorney General assented to Mr. Fierro's motion for the substitution of counsel. The District Court's scheduling order was entered on January 23, 1998, and required the filing of the successive petition by February 27, 1998. The Attorney General did not object to the scheduling order, and Mr. Fierro's successive habeas corpus petition was filed in compliance with it. Mr. Fierro's attorneys submitted a successive habeas corpus petition that was 129 pages in length -- more than twice the length of the gatekeeping motion.

On April 20, 1998, the Attorney General moved to have the successive petition dismissed, arguing for the first time that the statute of limitations controlled the filing date of the successive petition. The Attorney General's motion to dismiss was granted, and Mr. Fierro's successive habeas corpus application was summarily dismissed -- without an evidentiary hearing and without any review of the merits of the constitutional claims.

THE COURT SHOULD GRANT REVIEW BECAUSE THE FIFTH CIRCUIT'S HOLDING THAT THE RELEVANT FILING FOR COMPLIANCE WITH THE STATUTE OF LIMITATIONS IN SUCCESSIVE HABEAS PROCEEDINGS IS THE ACTUAL PETITION, AND NOT THE GATEKEEPING MOTION, CONFLICTS WITH THE PRACTICES AND PROCEDURES APPLIED TO SUCCESSIVE HABEAS PROCEEDINGS IN EVERY OTHER JURISDICTION.
 

The Disparate Application of AEDPA's Statute of Limitations in Capital Habeas Proceedings is a Matter Worthy of the Court's Review .

Whether, as applied to successive habeas corpus proceedings, the term "application" in AEDPA's statute of limitations, 28 U.S.C. § 2244(d), includes a gatekeeping motion is a question of first impression. In arguing that the relevant filing for compliance with the statute of limitations is the actual successive habeas corpus petition, and not a gatekeeping motion, the Attorney General relies on cases holding that, to avoid the application of AEDPA's new restrictions, first-time habeas corpus petitioners must file a petition -- and not just a preliminary McFarland motion -- prior to its enactment. See State's Br., 10-11. The Attorney General fails to mention that the Court recently granted certiorari in Garceau v. Woodford, 275 F.3d 769, 772 n. 1 (9th Cir. 2001),cert. granted, 71 U.S.L.W. 3233 (01-1862)(Oct. 1, 2002), to resolve this very issue, which has generated a conflict in the lower courts. Compare id., with Isaacs v. Head, 300 F.3d 1232, 1239 (11th Cir. 2002); Foster v. Schomig, 223 F.3d 626, 631 n. 2 (7th Cir. 2000), cert. denied, 532 U.S. 944 (2001); Moore v. Gibson,195 F.3d 1152, 1163 (10th Cir. 1999), cert. denied, 530 U.S. 1208 (2000); Williams v. Coyle, 167 F.3d 1036, 1040 (6th Cir. 1999); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997).

The need for guidance in construing AEDPA's statute of limitations is even more compelling in successive habeas corpus proceedings. With the exception of the Ninth Circuit, the lower courts are in consensus regarding the applicability of AEDPA's new restrictions to first-time habeas corpus proceedings. In successive habeas corpus proceedings, every court other than the Fifth Circuit appears to construe the gatekeeping motion as the relevant filing for compliance with the statute of limitations. See, e.g., In re Sims, 111 F.3d 45, 47 (6th Cir. 1997)(holding thatgatekeeping motion would be timelyunder the statute of limitations if received by a certain date). See also In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997); Browning v. United States, 241 F.3d 1262, 1263 (10th Cir. 2001); Gray-Bey v. United States, 201 F.3d 866 (7th Cir. 2000); Rodriguez v. Superintendent, 139 F.3d 270 (1st Cir. 1998); In re Vial, 115 F.3d 1192 (4th Cir. 1997)(all holding that there is no time-limit on a court of appeals consideration of a gatekeeping motion). (2)

The argument that equitable tolling may be available if delays in deciding the gatekeeping motion prevent a prisoner from complying with the statute of limitations misses the point. Equitable tolling is reserved for "rare and exceptional circumstances" in which the refusal to toll constitutes an abuse of discretion. Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002)(emphasis in original)(internal citations omitted). The courts of appeals routinely exceed the thirty-day limit in deciding gatekeeping motions. The only plausible explanation for this practice is that, with the exception of the Fifth Circuit in this case, the lower courts have concluded that the gatekeeping motion is the relevant filing for compliance with the statute of limitations in successive petition proceedings. The Court should grant review because the Fifth Circuit's holding that the necessary filing is the actual successive petition departs from the routine practice in every other jurisdiction, and breeds "confusion and inconsistency" in the application of the statute of limitations to successive petition proceedings. See Owens v. Okure, 488 U.S. 235, 240 (1989).

The Holding that the Statute of Limitations was not Satisfied Even Though Mr. Fierro's Gatekeeping Motion was filed within AEDPA's One-Year Period Conflicts with the Earlier Conclusion that was Obviously Reached by the Attorney General in this Case.
 

Mr. Fierro's gatekeeping motion was filed in the Fifth Circuit on October 20, 1997, and authorization to file the successive petition was granted on November 11, 1997. The Attorney General now argues that the statute of limitations expired in this case on November 28, 1997. Resp. Br., 8. Yet on December 22, 1997 -- almost one month after the statute of limitations is alleged to have expired -- the Attorney General requested that the District Court enter a scheduling order, stating that "the Fifth Circuit authorized Fierro to file a successive habeas petition with [the District Court], but gave no deadlineto do so." Pet. for Cert., at A-12 (emphasis added).

In addition, on dates after the statute of limitations is alleged to have expired, the Attorney General (1) assented to Mr. Fierro's motion to substitute one of his court-appointed attorneys; (2) did not oppose Mr. Fierro's proposed deadline for filing the successive petition; and (3) did not oppose the scheduling order that was entered by the District Court.

Whether or not the Attorney General was required to raise the statute of limitations defense at these junctures, he plainlywould have done so had he not concluded that the statute of limitations was satisfied by the filing of the gatekeeping motion within the one-year period. See,e.g., Cantu-Tzin v. Johnson, 162 F.3d 295 (5th Cir. 1998); Graham n.k.a. Sankofa v. Johnson, No. 4:98-CV-4241, Respondent Johnson's Advisory to the Court Regarding Petitioner's Motion for Appointment of Counsel (S.D. Tex. Dec. 14, 1998)(Pet. Suppl. Exh. 16). In Cantu-Tzin, a Texas death-row prisoner moved for the appointment of counsel in a first-time federal habeas corpus proceeding, even though the petition would have been barred by AEDPA's statute of limitations. The Attorney General opposed the motion, and the Fifth Circuit agreed that neither McFarland v. Scott, 512 U.S. 849 (1994) nor 21 U.S.C. § 848(q)(4)(B) "requires the appointment of counsel for the wholly futile enterprise of addressing the merits of a time-barred habeas petition." Cantu-Tzin, 162 F.3d, at 296-297. However the Fifth Circuit held that the federal courts may appoint counsel to represent a death-row prisoner "for purposes of litigating the applicability of the limitations bar only, with sufficient time constraints to maintain the integrity of the limitation period." Id.

While Cantu-Tzin was pending, Texas death-row prisoner Gary Graham moved the District Court for the appointment of counsel to initiate successive habeas corpus proceedings. The same Assistant Attorney General who represented the State in the District Court following the gatekeeping proceedings in Mr. Fierro's case responded by advising the District Court inGraham that the statute of limitations had expired. See Pet. Suppl. App. A-16. The Attorney General advised the Graham Court that it could decline to appoint counsel at all, or that it could limit the appointment to litigating the statute of limitations issue.

As demonstrated by Cantu-Tzin and Graham, whether or not the Attorney General isrequired to preempt the filing of a time-barred capital habeas petition, it is his practice to do so. The Attorney General certainly would not have sought a judicially imposed filing deadline after the gatekeeping proceedings unless he believed that the statute of limitations had no bearing on the subsequent proceedings. Nor would he have assented, without comment, to the appointment of two attorneys to prepare and file the successive habeas petition on a date after the statute of limitations is alleged to have expired. The Court should grant review because it is apparent that the Attorney General concluded that the statute of limitations was satisfied by the filing of the gatekeeping motion within the one-year period, and this conclusion is supported by the manner in which successive petition proceedings are conducted in every jurisdiction outside of the Fifth Circuit.

The Argument that the Statute of Limitations was Satisfied by the Filing of the Motion for Authorization within AEDPA's One-Year Limitations Period is Properly Before the Court.
 

Under the Rules Governing Section 2254 Cases, a habeas corpus petition must specify the "grounds for relief" and the "facts supporting each of the grounds thus specified." Habeas Rule 2(c). The federal courts have the discretion to refrain from examining for the first time on appeal grounds for relief or affirmative defenses that should have been pled in the habeas petition. SeeJohnson v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999); Baker v. Estelle, 711 F.2d 44, 45-46 (5thCir. 1983), cert. denied, 464 U.S. 1048 (1984).

Mr. Fierro's arguments respecting the statute of limitations were neither grounds for relief nor affirmative defenses, but were made in opposition to the Attorney General's motion to dismiss the successive petition. Mr. Fierro raised numerous arguments in the District Court that his successive petition is not time-barred, including that the statute of limitations does not apply to successive petitions that pass through the innocence gateway in a federal court of appeals. His related argument that the statute of limitations was satisfied by the filing of the gatekeeping motion within the one-year period was raised in the COA application that was filed in the District Court. R. Vol. III, 60: 495-518.

The District Court's COA order authorized the Fifth Circuit to consider "Whether the provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(b) and (d)(1) bar the Petitioner's claims[.]" Hence the Fifth Circuit had jurisdiction to consider whether the statute of limitations was satisfied by the filing of Mr. Fierro's gatekeeping motion,see Fed. R. App. Proc. 22(b), and the issue is properly before the Court.

THE MAGNITUDE OF THE INJUSTICE TO MR. FIERRO, COUPLED WITH THE TANGLED APPLICATION OF THE AEDPA IN HIS CASE, MAKES HIS CASE EMINENTLY WORTHY OF REVIEW

Respondent would have this Court see Mr. Fierro's case as procedurally bungled, properly barred by the AEDPA's procedural maze, and unremarkable on the merits. It is none of these.

As we have shown, Mr. Fierro's case was not procedurally bungled. His case was brought in 1997, at a time when the AEDPA was still brand new. Respondent's hindsight would have the Court believe that everyone knew how the statute of limitations applied to a successive proceeding. This Court knows that is not so. The practice of other courts of appeals and the record in this case - replete with the Texas Attorney General's apparent view before the statute of limitations had run, that the statute had been satisfied by the filing of the motion for leave in the Fifth Circuit - confirms the Court's knowledge.

For these reasons, one cannot conclude that Mr. Fierro's case was either procedurally bungled or properly barred by the AEDPA.

Most importantly, however, Mr. Fierro's case is remarkable on the merits. The state courts' fact-findings established that Mr. Fierro's capital murder conviction was obtained by the State's use of a police officer's perjury in trying to conceal his coercion of a confession -- tactics that produce such unreliable evidence that the United States Attorney General has repudiated them, even in the investigation into the September 11 terrorist attacks. Pet. for Cert., at 41. Aside from the dubious testimony of Olague and a confession coerced by torture, there is no evidence linking Mr. Fierro to the crime. The extraordinary threshold finding by the Fifth Circuit that, but for constitutional error, no reasonable juror would have convicted Mr. Fierro, shows that the credibility of Olague's testimony is a matter in serious dispute. The District Court never considered Olague's credibility, and the Fifth Circuit has never wavered from its threshold findings during the gatekeeping proceedings.

Against this background, it is plain that Respondent is attempting to divert the conscience of the Court. Nevertheless, the Court cannot rest easy if it denies plenary review to Mr. Fierro. The underlying constitutional violations are clear and harmful. They have created a real risk that an innocent person has been convicted and will be put to death. The Court cannot let Mr. Fierro go without fully reviewing his case.
 
 
 

1. 1 See Br. Amicus Curiae of the Government of the United Mexican States, 1-3; Pet. for Cert., at A-4, A-5.

2. The fact that some of these cases involve pro se prisoners is irrelevant to the issue at hand. The statute of limitations must be applied with uniformity, whether or not the petitioner is represented by counsel. See, e.g., Rodgers v. Wyoming Atty's Gen., 205 F.3d 1201, 1204 (10th Cir. 2000)("for notice of appeal requirements, the filings of counseled habeas petitioners should be given the same liberal construction as those of pro sepetitioners"); 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)), cert. denied, 506 U.S. 878 (1992).

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