Fierro v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-50562
_____________________

CESAR ROBERTO FIERRO,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________________________

Appeal from the United States District Court for the
Western District of Texas
_________________________________________________________________
November 23, 1999
Before KING, Chief Judge, JOLLY, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Cesar Roberto Fierro, a death row inmate, has been here

before. Fierro has been awaiting execution for over nineteen years

after having been convicted of capital murder and sentenced to

death for the murder of a taxi driver in El Paso, Texas. He has

petitioned the federal courts for a writ of habeas corpus three

times, and his fourth petition--which we authorized--is now pending

in the district court.

Today he comes to our court to challenge the district court’s

denial of his motion to vacate its earlier judgment denying his

petition for habeas relief. Fierro argues that because of the
discovery of certain evidence, it is now indisputable that his

confession was involuntary and that police officers committed

perjury in obtaining his conviction. He argues that the earlier

judgment of the federal court denying habeas relief was obtained by

fraud on the court and that the judgment should therefore be

vacated. For the reasons stated below, we affirm the judgment of

the district court refusing to set aside its earlier judgment

denying habeas relief.

I

The facts underlying today’s appeal have been reported in

several published opinions. See Ex Parte Fierro, 934 S.W.2d 370

(Tex. Crim. App. 1996) (en banc); Fierro v. State, 706 S.W.2d 310

(Tex. Crim. App. 1986) (en banc); Fierro v. Lynaugh, 879 F.2d 1276

(5th Cir. 1989). We will not burden the federal reporters with

another lengthy recitation. The procedural history of this case,

however, requires thorough consideration for our purposes today.

Prior to Fierro’s trial for murder in the Texas state court in

1980, Fierro moved the trial court to suppress his confession

statement. He argued that the police coerced him into giving the

confession by telling him that his parents were in a Mexican jail

and that they would remain there until he confessed. The state

court held a suppression hearing at which Officer Medrano--the

officer who took Fierro’s confession--testified. At this hearing,

2
Medrano testified that he did not have any information of Fierro’s

parents being held in custody. Fierro, 706 S.W.2d at 315. Another

officer testified that Fierro was not threatened and that he gave

the confession freely. Id. Fierro also testified at the hearing

and contradicted the testimony of the two officers with his own

version of the facts. Id. at 316. After hearing this testimony,

the trial court decided to allow the confession into evidence. The

arguments over the confession’s voluntariness were also submitted

to the jury and rejected. Fierro was convicted and he appealed

through the Texas court system. His conviction and sentence were

affirmed. The Texas Court of Criminal Appeals explicitly approved

of the trial court’s determination that Fierro had made his

confession voluntarily. Id. at 316.

Fierro then sought a writ of habeas corpus in the state and

federal courts. He first filed a pro se petition in the federal

district court. The district court refused to grant the petition,

and Fierro then unsuccessfully sought relief in the state courts.

We affirmed the denial of his second federal petition for the writ

in Fierro v. Lynaugh, 879 F.2d 1276 (5th Cir. 1989). In our

affirmance, we gave the state court findings of fact their due

presumption of correctness as directed by the federal habeas

statutory provisions and case law. See Fierro, 879 F.2d at 1279.

Fierro then sought certiorari in the Supreme Court. This petition

3
was also denied. Fierro v. Collins, 494 U.S. 1060 (1990). Fierro

then filed a third federal habeas petition. We affirmed the

dismissal of this petition in an unpublished opinion. Soon

thereafter, in 1994, Fierro’s attorney found what Fierro now argues

is a “smoking gun.” Fierro’s attorney discovered a “supplemental

police report” that “reflected that [Fierro’s] parents were in the

custody of the Juarez police.” Ex Parte Fierro, 934 S.W.2d at 371.

Fierro took this “new” evidence to the Texas Court of Criminal

Appeals and obtained a ruling ordering the trial court to conduct

a hearing and to enter findings of fact and conclusions of law

addressing Fierro’s allegations of perjury.

After holding a hearing, the state trial court made the

following findings of fact:

1) That at the time of eliciting the Defendant's
confession, Det. Medrano (now deceased) did have
information that the Defendant's mother and stepfather
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.

2) That the District Attorney's Office did not withhold
this Supplemental Offense Report from the attorneys for
the Defendant.

3) That Det. Medrano presented false testimony regarding
the nature and extent of the cooperation between the El
Paso police and the Juarez police in this particular
case, as it existed in 1979. There was no evidence
produced to show that such practices are still taking
place.

4
See Ex parte Fierro, 934 S.W.2d at 371. The trial judge concluded

that Fierro should receive a new trial. The Texas Court of

Criminal Appeals disagreed. Although it accepted the trial

court’s findings of fact, the appellate court denied any relief.

The court held, under its harmless error analysis, that “it is

more probable than not that the outcome of applicant’s trial would

have been the same absent the confession.” Id. at 376.

After this setback, Fierro again sought relief in federal

court. On November 11, 1997, the Fifth Circuit granted Fierro

leave to file a successive habeas petition. See 28 U.S.C.

§ 2244(b)(3).1 Fierro then proceeded to file the petition in the

district court.

Along with this successive habeas petition, Fierro also filed

a motion requesting that the district court vacate its earlier

judgment denying his first habeas petition. In his motion, Fierro

argued that the district court had the authority to vacate its

earlier judgment under (1) its “inherent equitable powers,” (2)

1
We stated in our order that

[i]n addition to the claim that an El Paso police officer
gave perjured testimony at Fierro’s pretrial suppression
hearing, Fierro is authorized to raise the related issue
whether the attorneys who represented Fierro at trial and
on direct appeal were ineffective for failing to discover
the existence of the supplemental offense report on which
the claim of perjured testimony is based.

5
Fed. R. Civ. P. 60(b)(5), and (3) Fed. R. Civ. P. 60(b)(6).2 The

district court denied this motion, relying on our precedent holding

that Rule 60(b) motions are to be treated as successive habeas

petitions. The district court then concluded that it had no

jurisdiction to consider the arguments in this motion because we

2
Fed. R. Civ. P. 60(b) states the following:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud, Etc. On motion and upon
such terms as are just, the court may relieve a party or
a party's legal representative from a final judgment,
order, or proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence
could not have been discovered in time to move for a new
trial under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which
it is based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have
prospective application; or (6) any other reason
justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and
for reasons (1), (2), and (3) not more than one year
after the judgment, order, or proceeding was entered or
taken. A motion under this subdivision (b) does not
affect the finality of a judgment or suspend its
operation. This rule does not limit the power of a court
to entertain an independent action to relieve a party
from a judgment, order, or proceeding, or to grant relief
to a defendant not actually personally notified as
provided in Title 28, U.S.C., § 1655, or to set aside a
judgment for fraud upon the court. Writs of coram nobis,
coram vobis, audita querela, and bills of review and
bills in the nature of a bill of review, are abolished,
and the procedure for obtaining any relief from a
judgment shall be by motion as prescribed in these rules
or by an independent action.

6
had not authorized a successive habeas petition on grounds stated

in the motion. The successive habeas petition (for which we gave

authorization) remains pending in the district court.

After having his motion denied, Fierro sought a Certificate of

Appealability (“COA”) in our court, hoping to obtain authorization

for an appeal of the denial order. On October 20, 1998, we denied

the petition for a COA as unnecessary; we instructed Fierro that he

did not need to seek a COA to appeal the denial of his motion based

on equitable claims.3 We also instructed the parties to brief the

following issue:

Whether there exists an equitable remedy, independent of
28 U.S.C. § 2244(b), which would allow a federal court to
vacate a fraudulently-obtained judgment in a prior
federal habeas proceeding.

We have determined, however, that we need not provide an

answer to the question of whether the provisions of the

Antiterrorism and Effective Death Penalty Act of 1996 (the

“AEDPA”) preempt our use of inherent powers in the context of a

petition for a writ of habeas corpus.4 We do not need to answer

3
Although Fierro still has a successive habeas petition
pending in the federal district court, the denial of Fierro’s
motion to vacate is a final decision ripe for appeal. The motion
to vacate was filed in the case styled Fierro v. Lynaugh, No.
EP-87-CA-377. The pending, successive petition involves an
independent proceeding under case No. EP-97-CA-480.
4
Issues relating to any other constitutional challenges that
Fierro might present must, of course, proceed through the ordinary
habeas procedures.

7
the question because even if the AEDPA does not foreclose the use

of courts’ inherent powers to vacate prior judgments, Fierro has

not met the standards for vacating a decision due to fraud on the

federal courts.

II

We begin our analysis by noting that according to 28 U.S.C.

§ 2244(b)(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.” Fierro argued in a

previous habeas petition, as he does now, that his confession was

not voluntary and it should not have been admitted at his trial.

Fierro’s argument has not changed, but he now claims to have new

evidence that gives more credence to his previous argument. Thus,

the plain language of § 2244(b)(1) would bar any ruling in

Fierro’s favor upon a Rule 60(b) motion if that motion is

construed as a “second or successive habeas corpus application.”

Our own court and other circuit courts have decided that Rule

60(b) motions should be construed as successive habeas petitions

governed by the AEDPA’s provisions. See, e.g., United States v.

Rich, 141 F.3d 550, 551-52 (5th Cir. 1998), cert. denied, 119

S.Ct. 1156 (1999); see also Burris v. Parke, 130 F.3d 782, 783

(7th Cir. 1997) (Easterbrook, J.) (“Appellate courts agree that

a post-judgment motion under Fed. R. Civ. P. 60(b) in the district

8
court, or the equivalent motion in the court of appeals--which is

to say, a motion to recall the mandate--is a `second or

successive’ application for purposes of § 2244(b).”). In Burris

v. Parke, 130 F.3d 782 (7th Cir. 1997), the habeas petitioner

asked the Seventh Circuit to recall its mandate based on new

testimonial evidence from a neuropsychologist. The court rejected

the request:

Burris wants us to recall our mandate to take a step that
every court of appeals that has addressed the subject
believes forbidden by § 2244(b): reassessing old theories
in light of new evidence. A state governor or clemency
board may receive and act on such evidence; under
§ 2244(b), a federal court may not.

Id. at 785.

Fierro argues, however, that his “new” evidence attacks the

very integrity of the proceedings, both in the district court and

this court.5 Thus, the question becomes whether we treat a Rule

60(b) motion as a successive habeas petition even when the

arguments allege that fraud on the court has occurred. Stated

differently, can the court’s inherent powers save Fierro’s Rule

60(b) motion from a quick dismissal under § 2244(b)(1)?6

5
Fierro argues (1) that the district court should have
recalled the mandate in its judgment on his first habeas petition
to that court, and (2) that we should recall the mandate and vacate
our opinion in Fierro v. Lynaugh, 879 F.2d 1276 (5th Cir. 1989).
6
Only one circuit appears to have confronted this issue. The
Fourth Circuit addressed the question in an unpublished opinion.
See United States v. MacDonald, No. 97-7297, 1998 WL 637184 (4th

9
 It is exceedingly difficult to answer this question because

the search for an answer pits the clear statutory language (of

§ 2244(b)(1)) against long-established “inherent” powers of the

judiciary.7 The Supreme Court has repeatedly held that federal

courts possess the inherent power “to vacate [their] own

judgment[s] upon proof that a fraud has been perpetrated upon the

court.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (citing

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238

(1944)).8 The power to grant “[e]quitable relief against

fraudulent judgments is not of statutory creation.” Hazel-Atlas,

322 U.S. at 248. This equitable power was “firmly established in

English practice long before the foundation of our Republic,” id.

Cir. Sept. 8, 1998). The court concluded that the AEDPA does not
bar a Rule 60(b) motion premised upon fraud on the court. Id. at
*3. The court reached this conclusion, in part, because “actions
alleging fraud upon the court . . . attack the validity of a prior
judgment, based on the theory that ‘a decision produced by fraud on
the court is not in essence a decision at all and never becomes
final.’” Id. (quoting 11 Wright and Miller, FEDERAL PRACTICE AND
PROCEDURE § 2870 at 409 (1995) (quoting Kenner v. Commissioner of
Internal Revenue, 387 F.2d 689, 691 (7th Cir. 1968)). The court
also went on to conclude, however, that the facts alleged did not
constitute fraud on the court. MacDonald, 1998 WL 637184 at *3-6.
7
The lower federal courts were, of course, created by acts of
Congress. Congress may, therefore, be able to curtail any of the
inherent powers possessed by those courts that Congress creates.
See Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991).
8
The Chambers case dealt with the federal courts’ inherent
power to impose sanctions for bad faith conduct. The court held
that Rule 11 does not displace the courts’ inherent power to impose
sanctions.

10
at 244, and the power is vested in courts by their very creation.

See Chambers, 501 U.S. at 43-44. Cf. id. at 58 (Scalia, J.,

dissenting) (“Some elements of th[e] inherent authority are so

essential to ‘[t]he judicial Power,’ U.S. Const., art. III, § 1,

that they are indefeasible . . .”).9

Nevertheless, the Supreme Court’s review of an appellate

court’s use of its inherent powers in habeas cases is influenced

by “the statutory and jurisprudential limits applicable in habeas

corpus cases.” Calderon v. Thompson, 118 S.Ct. 1489, 1499 (1998).

“In light of ‘the profound societal costs that attend the exercise

of habeas jurisdiction,’ we have found it necessary to impose

significant limits on the discretion of federal courts to grant

habeas relief.” Id. (citing Smith v. Murry, 477 U.S. 527, 539,

106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1996)). “These limits

reflect our enduring respect for the State’s interest in the

finality of convictions that have survived direct review within

the state court system. . . . Finality is essential to both the

9
But see id. at 47 (with internal quotation marks and
citations omitted):

It is true that the exercise of the inherent power of
lower federal courts can be limited by statute and rule,
for [t]hese courts were created by act of Congress.
Nevertheless, we do not lightly assume that Congress has
intended to depart from established principles such as
the scope of a court’s inherent power.

11
retributive and the deterrent function of criminal law.”

Thompson, 118 S.Ct. at 1500-01.

In Thompson, the Supreme Court held that the Ninth Circuit

abused its discretion in recalling its own mandate in a habeas

case. Id. at 1494. The case involved the appellate court’s

inherent power to recall its own mandate, a power specifically

recognized by the Supreme Court. Id. at 1498. It is important

to note, however, that in discussing Thompson in the context of

today’s case, Thompson did not concern the use of inherent powers

to correct a fraud upon the court. Instead, an en banc panel of

the Ninth Circuit recalled its mandate sua sponte because “the

decision of the original panel ‘would [have led] to a miscarriage

of justice.’” Id. at 1497 (quoting Thompson v. Calderon, 120 F.3d

1045, 1048 (9th Cir. 1997)).10 The Ninth Circuit exercised its

inherent power to recall the mandate so that it could reconsider

the merits of the petitioner’s first habeas petition. Thompson,

118 S.Ct. at 1500. The court did not consider any evidence

presented in subsequent motions and petitions. Id.

In contrast to the situation faced by the Ninth Circuit, we

confront a case involving a prisoner’s motion to vacate a

10
The Ninth Circuit recalled its mandate 53 days after the
mandate had issued. Thompson, 118 S.Ct. at 1497.

12
judgment. With respect to such a motion, the Thompson Court

stated:

In a § 2254 case, a prisoner’s motion to recall the
mandate on the basis of the merits of the underlying
decision can be regarded as a second or successive
application for purposes of § 2244(b). Otherwise,
petitioners could evade the bar against relitigation of
claims presented in a prior application, § 2244(b)(1),
or the bar against litigation of claims not presented
in a prior application, § 2244(b)(2). If the court
grants such a motion, its action is subject to AEDPA
irrespective of whether the motion is based on old
claims (in which case § 2244(b)(1) would apply) or new
ones (in which case § 2244(b)(2) would apply).

Thompson, 118 S.Ct. at 1500. This language suggests that a

court’s recall of its mandate in this case would be governed by

§ 2244(b) because the evidence supporting any relief would be

“new . . . evidence presented in [Fierro’s] successive application

for habeas relief.”11 A straightforward application of the

Thompson rule, combined with a literal application 2244(b)(1),

appears to leave the court powerless to correct any ruling when

(1) fraud on the court is subsequently uncovered and (2) that

fraud somehow interrelates with a habeas claim previously

presented.

11
This new evidence includes affidavits submitted by various
people as well as the state trial court’s new findings of fact
(which are, of course, based on “new” evidence--i.e., oral
testimony as well as affidavits--produced since this court affirmed
the denial of Fierro’s prior petition).

13
 On the other hand, perhaps the Supreme Court would not apply

the above general principles to Fierro’s case. The Court

qualified its Thompson opinion with the following language:

We should be clear about the circumstances we address
in this case. . . . This [] is not a case of fraud upon
the court, calling into question the very legitimacy of
the judgment. See Hazel-Atlas Glass Co. v. Hartford-
Empire Co., 322 U.S. 238 (1944).

Thompson, 118 S.Ct. at 1501-02. The Court thus suggests that

cases involving claims of fraud on the court may warrant different

treatment.

After reviewing the parties’ arguments, we conclude that we

need not decide whether the provisions of AEDPA preempt, or

otherwise modify, courts’ use of their inherent powers in habeas

cases involving claims of fraud on the court.

Even if an inherent power gives life to a challenge that §

2244(b)(1) would otherwise forbid, Fierro’s allegations do not

support the use of such an inherent power because he has failed

to allege any facts that would constitute a fraud on the federal

courts.

III

A

Before analyzing Fierro’s “fraud on the court” argument as

it applies to the federal district court and to this court, it is

important to state clearly the evidence that Fierro does, and does

14
not, allege. Consistent with the findings of the state courts,

Fierro alleges that Officer Medrano testified falsely at the

suppression hearing in state court. Fierro does not, however,

allege that the prosecuting attorney knew that Medrano’s testimony

was false. Most important to this appeal, Fierro does not allege

that the attorneys representing the Director of the Texas

Department of Corrections in these federal habeas proceedings had

any knowledge that the subject testimony was false. Furthermore,

it is important to keep in mind that in reviewing the district

court’s denial of the motion to vacate, we deal only with

allegations of fraud on the federal courts, not any fraud that may

have been perpetrated upon the state courts.12 Thus we will

consider only the conduct of the relevant parties during the

federal habeas proceedings.

Both parties cite our precedent in which we stated the black

letter law for finding a fraud on the court:

To establish fraud on the court, it is necessary to
show an unconscionable plan or scheme which is designed
to improperly influence the court in its discretion.
Generally speaking, only the most egregious misconduct,
such as bribery of a judge or members of a jury, or the
fabrication of evidence by a party in which an attorney
is implicated, will constitute a fraud on the court.

12
Fraud on state courts cannot be the basis of habeas relief
unless that fraud amounts to the denial of a federal right.
Sawyers v. Collins, 986 F.2d 1493, 1497 (5th Cir. 1993); citing
Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77
L.Ed.2d 1090 (1983). No such claim is made here.

15
 Less egregious misconduct, such as nondisclosure to the
court of facts allegedly pertinent to the matter before
it, will not ordinarily rise to the level of fraud on
the court.
First Nat’l Bank of Louisville v. Lustig, 96 F.3d 1554, 1573 (5th

Cir. 1996) (quotation marks and citations omitted).13

13
Fierro relies heavily on two cases--Hazel-Atlas and Rozier
v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978)--to construct what
he considers to be the elements of an action for “fraud on the
court.” Direct reliance on these cases, however, is somewhat
questionable. The court in Rozier analyzed a motion brought under
Rule 60(b)(3), not an equitable action for fraud on the court.
Furthermore, the Rozier court explained at length that the
requirements for a “fraud on the court” action were more stringent
than those for a Rule 60(b)(3) motion. Rozier, 573 F.2d at
1337-39; see also Great Coastal, 675 F.2d at 1356 (“fraud on the
court” concept “should be construed very narrowly,” otherwise the
concept could “easily overwhelm the specific provision of 60(b)(3)
and its time limitation and thereby subvert the balance of equities
contained in the Rule”); Gleason v. Jandrucko, 860 F.2d 556, 558
(2d Cir. 1988) (stating that “fraud on the court” action is
narrower in scope than Rule 60(b)(3)). Fierro does not, and could
not, base his argument on Rule 60(b)(3). That provision includes
a one-year statute of limitations:

On motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a
final judgment, order, or proceeding for the following
reasons: . . . (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party . . . The motion shall be
made . . . not more than one year after the judgment,
order or proceeding was entered or taken. . . .

Fierro presented his Rule 60(b) motion to the district court more
than ten years after the district court’s judgment from which
Fierro seeks relief.
Aside from Rozier, Fierro’s reliance on Hazel-Atlas--without
alluding to our subsequent case law interpreting that decision--is
questionable; our court has interpreted Hazel-Atlas in the light of
other Supreme Court and sister circuit precedent. See especially
Browning v. Navarro, 826 F.2d 335, 342-45 (5th Cir. 1987). In
Browning, we thoroughly reviewed Supreme Court precedent in an

16
 After noting this language, the arguments in the state’s and

Fierro’s briefs take predictable paths. The state essentially

argues that false testimony by a police officer (when the state’s

attorneys in federal habeas proceedings are not aware of its false

nature) amounts to “nondisclosure to the court of facts allegedly

pertinent to the matter before it.” As a result, such

nondisclosure would not establish fraud on the court. Fierro

argues that the false testimony constitutes “fabrication of

evidence by a party in which an attorney is implicated.” Although

Fierro does not argue that the state’s attorneys knew about

Officer Medrano’s false testimony, Fierro maintains that the

state’s attorneys--both the prosecuting attorneys and the

attorneys representing the Director of the Texas Department of

Corrections--are implicated because testifying officers and the

state’s attorneys constitute the “prosecution team.”

Our decision in Browning v. Navarro, 826 F.2d 335 (5th Cir.

1987), provides further guidance on the standard for considering

fraud upon the court. In Browning, this court analyzed two

Supreme Court cases dealing with “fraud on the court” actions:

United States v. Throckmorton, 98 U.S. 61 (1878), and Hazel-Atlas.

The court summarized the lessons of these two cases:

effort to define “judgment procured by fraud.” Fierro’s briefs do
not contain a whisper of Browning.

17
 Throckmorton stands clearly for the proposition that
intrinsic fraud, that is, fraudulent evidence upon
which a judgment is based, is not grounds to set aside
a judgment. It also makes clear that extrinsic fraud,
that is, fraud that was not the subject of the
litigation, that infects the actual judicial process,
is grounds to set aside a judgment as procured by
fraud.14 . . . Hazel-Atlas is to be read as an expansion
of the limits set by Throckmorton in attacking
judgments generally . . . Hazel-Atlas allows a judgment
to be attacked on the basis of intrinsic fraud that
results from corrupt conduct by officers of the court.

Browning, 826 F.2d at 344 (footnotes omitted).

The allegedly false testimony of Officer Medrano standing

alone clearly constitutes intrinsic fraud and will be insufficient

to set the judgment aside.15 Fierro’s only hope to prove fraud

sufficient to set aside the federal judgment is to show that the

unknowing reliance on Officer Medrano’s false testimony by the

state’s habeas attorney constitutes “corrupt conduct by officers

of the court.”16 Fierro notes that our court recently stated that

14
See also Browning, 826 F.2d at 343 (“According to Justice
Miller’s reasoning [in Throckmorton], in order to collaterally
attack the judgment, it must have been obtained by fraud, as
distinguished from having been based on fraud.”).
15
See Browning, 826 F.2d at 344 n.11 (noting that some
commentators have criticized the intrinsic/extrinsic distinction);
Gleason, 860 F.2d at 560 (refusing to recognize the
intrinsic/extrinsic distinction as a factor in analyzing a “fraud
on the court” action).
16
In a footnote, the Browning court stated that “[t]he courts
have uniformly held that perjury of a single witness, false
evidence (in the absence of attorney involvement) or mere
nondisclosure are insufficient to establish fraud upon the court.”
Browning, 826 F.2d at 344 n.12.

18
government prosecutors have constructive notice of a police report

that contradict the elicited testimony of a government witness.

Creel v. Johnson, 162 F.3d 385, 391 (5th Cir. 1998). Applying the

rule in Creel to his own case, Fierro argues that the state

attorneys’ conduct in the state trial (and on appeal) was corrupt

because of their constructive knowledge of a police report that

contradicted Medrano’s testimony. This is only the first step,

however. To succeed in the federal court, Fierro asks us to

extend the rule in Creel to hold that attorneys representing the

State Department of Corrections in a federal habeas case have

constructive notice of police reports that contradict the elicited

testimony of government witnesses at the trial.

Even if we accepted Fierro’s argument that prosecuting

attorneys constructive knowledge of false testimony could satisfy

the requirement for a showing of fraud upon the court, we have no

basis in law or fact to extend such a theory to the state’s habeas

attorneys. Although the prosecuting attorney and Officer Medrano

might arguably be considered a solitary prosecution unit, the

relationship between Officer Medrano and the state’s attorneys in

a federal habeas proceedings is too attenuated to allow the

necessary imputation.

The attorneys for the Texas Department of Corrections in a

federal habeas case do not act as prosecutors of the crime

19
investigated by the law enforcement officers. Prosecutors are

actively involved in trial preparation, production of evidence,

examination of witnesses, and evaluating the credibility of

prosecution witnesses. Thus prosecutors work hand in hand with

the police in presenting the case before the courts. The

attorneys for the Director of Corrections, however, act in

response to a petitioner’s charge of unlawful detention that

usually centers around the larger questions of the

constitutionality of the judgments of the criminal courts.

Although these attorneys will undoubtedly point to the work of the

prosecuting attorneys to defend the petitioner’s continuing

detention, the Director’s attorneys neither work with the police

in a common enterprise, nor are they in the business of

prosecuting crime. Lacking such a connection as part of a

prosecution team, any constructive knowledge of police reports

that might be imputed to the prosecutors cannot be imputed to the

state’s attorneys in a federal habeas case.

B

Finally, we do recognize that Fierro argues that the Texas

Court of Criminal Appeals seriously erred in its ruling related

to the state trial court’s finding that Officer Medrano gave false

testimony. For example, Fierro argues that the Texas court erred

in its application of the harmless error standard. For the

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federal courts to provide any relief based on these arguments,

however, Fierro must allege some violation of a federal right.

Any petition based on federal law will be governed by § 2244(b)

as a successive habeas petition. It is not appropriate for us to

address these arguments in an appeal from the denial of a motion

to vacate an earlier judgment. We therefore state no opinion as

to the validity of any potential constitutional challenges to his

continued detention.

IV

For the foregoing reasons, the judgment of the district court

is

A F F I R M E D.

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