Tercero v. Thaler
MEMORANDUM AND ORDER denying petitioner's petition for federal habeas relief. The Court DENIES Tercero's petition and DISMISSES this case WITH PREJUDICE. No Certificate of Appealability will issue in this case. (Signed by Judge Melinda Harmon) Parties notified.(htippen, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BERNARDO ABAN TERCERO,
CIVIL ACTION NO. 4:06-CV-3384
MEMORANDUM AND ORDER
Texas death-row inmate Bernardo Aban Tercero seeks federal habeas relief. Tercero’s
habeas petition raises several constitutional claims, including that he is exempt from execution
under Roper v. Simmons, 543 U.S. 551 (2005). After considering the record, the pleadings, and
the applicable law, the Court will deny Tercero’s habeas petition. The Court will not certify any
issue for appellate review.
On March 31, 1997, Robert Berger entered a dry-cleaning establishment with his three-
year-old daughter around closing time to drop off clothing. Berger waited at the counter and
employee Idalia Lima stood at the back door as her husband took out some trash. As he
reentered, two men forced their way inside. One man held Lima and her husband at gunpoint
while the other went to the front of the store. There, a scuffle ensued between the second
intruder and Berger. After tussling for a moment, the second man shot Berger. As he lay
bleeding on the floor, a store clerk tried to move Berger’s young daughter so she would not see
him dying. The intruders fled with two cash register drawers full of money.
Several months passed without any leads. During that time, the police twice interviewed
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Lima, but she did not give any useful information about the murderer’s identity. The police
eventually learned that Bernardo Aban Tercero, known as “Carlos” or “Nica,” had some
involvement in the robbery/murder. Additional investigation revealed that Tercero had lived
with Lima’s sister, Marisol (who was a former employee of the dry cleaners). Lima confessed
that she had lied to the police. In her third police statement she fingered Tercero as the killer.
She said that when Tercero approached her needing money, she helped orchestrate the robbery.
On September 2, 1997, the State of Texas charged Tercero with capital murder
committed during the course of a robbery. By that point Tercero had fled to his home country of
Nicaragua. There, Tercero engaged in a series of armed offenses, including several robberies,
shootings, and a kidnapping. Eventually, the FBI obtained a federal warrant for Tercero’s flight
to avoid prosecution. Two years later, Tercero was arrested upon reentry to the United States.
The trial court appointed Gilbert Villarreal and John Derringer to represent Tercero.
Trial testimony provided competing versions of Lima’s involvement in the crime. Lima testified
that Tercero had threatened to harm her and her family if she did not help him commit the
robbery. Tercero took the stand and testified that Lima was a willing participant who he paid for
The thrust of Tercero’s defense, however, was that he lacked a specific intent to kill.
While the defense capitalized on ballistics evidence, Tercero’s trial testimony formed the core of
the defense’s case. Tercero testified that, as he approached the front of the store, Berger tried to
grab the gun from him. Their struggle caused Tercero, who had his finger on the trigger, to fire
his weapon. The trial court instructed the jury to consider the lesser-included offenses of felony
murder and aggravated robbery. The defense conceded Tercero’s guilt to aggravated robbery
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and told the jury to find him guilty of felony, not capital, murder.
The prosecution, however, strongly disputed Tercero’s version of the offense.
prosecution told the jury to infer Tercero’s intent from the facts, particularly because Tercero had
coerced Lima into helping him rob the store and he took a loaded gun with him. The State
emphasized that an eyewitness saw Tercero assault Berger, who only acted defensively. In fact,
Tercero told another witness after the murder that he shot Berger because he made him angry and
could identify him. The jury convicted Tercero of capital murder.
At the time of trial, a capital-murder conviction left two sentencing options: death or life
with the possibility of parole after 40 years. After a separate punishment hearing, the jury would
decide Tercero’s sentence by answering two special issue questions:
Special Issue No. 1
Do you find from the evidence beyond a reasonable doubt that there is a
probability that the defendant, Bernardo Aban Tercero, would commit criminal
acts of violence that would constitute a continuing threat to society?
Special Issue No. 2
Taking into consideration all of the evidence, including the circumstances of the
offense, the defendant’s character and background, and the personal moral
culpability of the defendant, Bernardo Aban Tercero, do you find that there is a
sufficient mitigating circumstance or circumstances to warrant that a sentence of
life imprisonment rather than a death sentence be imposed?
Clerk’s Record at 153, 155.
The State emphasized Tercero’s persistent and vicious history of lawlessness. Tercero
had twice been convicted of theft. The State stressed the senselessness and brutality with which
Tercero killed the victim in this case. Witnesses also described Tercero’s wanton lawlessness
when he returned to Nicaragua. In short, the prosecution put forth a strong case for a death
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The defense called eight witnesses, including Tercero’s family members from Nicaragua,
who described him as having a generally good character. Family members pleaded for mercy
and testified that Tercero was capable of rehabilitation. A jail employee testified that Tercero
had not been violent while awaiting trial. A jail chaplain explained that Tercero had shown
remorse and had sought a sincere relationship with God.
The jury answered the special issues in a manner requiring the imposition of a death
sentence. Tercero filed a timely motion for a new trial. The trial court denied the motion.1
Direct Appeal and State Habeas Review
Tercero sought appeallate review on six points of error.2 The Court of Criminal Appeals
affirmed his conviction and sentence. Tercero v. State, No. 73,992 (Tex. Crim. App. Sept. 19,
2002) (unpublished). Tercero does not renew in federal court any of the complaints he raised on
During the pendency of his direct appeal, Tercero filed a state application for habeas
corpus relief through appointed counsel. Tercero’s 55-page application raised five grounds for
relief, three of which addressed the introduction of victim-impact testimony at trial and two of
which focused on the structure of the penalty phase. State Habeas Record at 2-63. Over two
years later, and after the State of Texas filed a response, Tercero filed a pro se motion to amend
In a post-judgment hearing, Lima testified that she actually had seen Tercero and the victim struggle for the gun.
She said that the police allegedly threatened her and that the prosecutor instructed her not to mention anything that
would benefit Tercero. The prosecution’s interpreter and others present during interviews with Lima strongly
disputed her post-trial testimony.
Tercero alleged: (1) the trial court erred in granting a challenge for cause during voir dire; (2) the trial court
erroneously refused to instruct the jury on a lesser-included offense; (3) insufficient evidence supported the jury’s
finding that he would be a future societal danger; (4) the trial court improperly excluded testimony that a witness
had identified Tercero through an impermissibly suggestive procedure; (5) the prosecutor improperly called Tercero
a “demon” during the penalty phase; and (6) the prosecutor improperly called Tercero a “beast” during the penalty
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his habeas application. State Habeas Record at 67-74.3 By that point in the habeas litigation,
Texas law prohibited the insertion of new claims.
The parties’ proposed findings of fact and conclusions of law only addressed the claims
raised in the application filed by state habeas counsel. The lower state habeas court signed the
State’s proposed findings and conclusions recommending that the Court of Criminal Appeals
deny relief. State Habeas Record at 137-49. The Court of Criminal Appeals adopted the lower
court’s recommendation and denied relief. In the same order, the Court of Criminal Appeals
found Tercero’s pro se application “to be a subsequent application” because he filed it “after the
deadline provided for an initial application for habeas corpus.” As the pro se application
“fail[ed] to meet one of the exceptions provided for in Section 5 of Article 11.071,” the Court of
Criminal Appeals “dismiss[ed] this subsequent application as an abuse of the writ.” Ex parte
Tercero, No. WR-62,592-01 and WR-62,593-02 (Tex. Crim. App. Nov. 16, 2005).
Federal Habeas and Successive State Habeas Review
This Court appointed counsel to represent Tercero throughout the federal habeas process.
On October 24, 2006, Tercero filed a pro se federal petition for a writ of habeas corpus raising
four grounds for relief. (Instrument No. 1).4 Appointed counsel subsequently filed an amended
federal petition adopting the issues raised in the pro se petition and inserting others for the first
time on federal review. (Instrument No. 6). Tercero pursues federal habeas corpus relief on the
Tercero’s pro se application raised the following grounds for relief: (1) trial counsel provided ineffective
assistance by failing to investigate the circumstances surrounding Tercero’s arrest, interrogation, and invocation of
his consular rights; (2) the State presented false testimony through Lima; (3) the State suppressed evidence relating
to the falsity of Lima’s trial testimony; and (4) trial counsel provided ineffective assistance by failing to engage in a
meaningful investigation of mitigating evidence.
Tercero’s pro se federal petition alleged that: (1) trial counsel provided ineffective assistance in failing to
investigate the circumstances surrounding his arrest and subsequent interrogation; (2) the prosecutor withheld
evidence in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963), relating to a statement from Lima; (3) trial
counsel provided ineffective assistance when he ignored Tercero’s directive to call a witness, Sylvia Cotera, at trial;
and (4) the Supreme Court’s decision in Roper bars Tercero’s execution because he was 17 years old when he killed
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Trial counsel provided ineffective assistance by failing to (a) investigate
Tercero’s case properly; (b) engage in a proper mitigation investigation;
(c) obtain Tercero’s medical and school records; and (d) investigate the
violation of Tercero’s rights under the Vienna Convention on Consular
Relations (“Vienna Convention”), Apr. 24, 1963,  21 U.S.T. 77.
The prosecution withheld evidence in violation of Brady v. Maryland, 373
U.S. 83, 87 (1963), relating to Lima’s testimony.
Trial counsel provided ineffective assistance when he ignored Tercero’s
directive to call a witness, Sylvia Cotera, at trial.
The Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005)
bars Tercero’s execution because he was 17 years old when he killed the
Federal and state agents ignored Tercero’s requests for consular assistance
in violation of his Vienna Convention rights.
Appellate counsel provided ineffective assistance in failing to raise a claim
of prosecutorial misconduct on direct review.
State habeas counsel provided constitutionally deficient representation.
The Texas Court of Criminal Appeals failed to safeguard Tercero’s
statutory right to “competent counsel” on state habeas review.
Insufficient evidence supported the jury’s decision that Tercero would be a
future danger to society.
Respondent filed an answer alleging that Tercero had not presented any of his claims in a
procedurally adequate manner.
(Instrument No. 19).
Specifically, Tercero procedurally
defaulted portions of claim one and all of claims two and three on state habeas review.
Respondent also argued that Tercero violated the exhaustion doctrine found in 28 U.S.C
§ 2244(b)(2) by presenting the remainder of his claims for the first time on federal review.
On March 31, 2008, the Court stayed and administratively closed this action to allow
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Tercero to present his unexhausted claims to the state courts. (Instrument No. 32).5 Tercero
filed a successive state habeas application raising only his Roper claim. The Court of Criminal
Appeals granted Tercero leave to proceed with his successive habeas application and remanded
the action to the state trial court. After considering the parties’ arguments and evidence, the triallevel habeas court entered findings and conclusions recommending the denial of relief. On
March 3, 2010, the Court of Criminal Appeals adopted the lower court’s recommendation and
denied relief. Ex parte Tercero, WR-62,593-03, 2010 WL 724405 (Tex. Crim. App. Mar. 3,
This Court reopened Tercero’s federal habeas action. (Instrument No. 35). Tercero filed
a second amended petition that adopted his earlier arguments and reurged his Roper claim in
light of the state-court action. (Instrument No. 45). Respondent has filed a supplemental answer
(Instrument No. 53) to which Tercero has replied (Instrument No. 61). The parties have also
provided additional briefing about the application of the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”). (Instrument Nos. 71, 76). This matter is ripe for adjudication.
PROCEDURAL LIMITATIONS ON FEDERAL HABEAS REVIEW
Federal habeas corpus review provides a tightly circumscribed examination of state
criminal judgments. While “the Framers considered the writ a vital instrument for the protection
of individual liberty,” Boumediene v. Bush, 533 U.S. 723, 743 (2008), principles of finality,
comity, and federalism narrow the scope of federal habeas review. See Barefoot v. Estelle, 463
U.S. 880, 887 (1983) (“The role of federal habeas proceedings . . . secondary and limited.”);
Engle v. Isaac, 456 U.S. 107, 128 (1982) (“The States possess primary authority for defining and
enforcing the criminal law.”). Respondent argues that procedural law forecloses federal review
This Court’s order staying the case specifically discussed Tercero’s Roper claim, but clarified that a stay would
“allow Tercero to exhaust the other claims he has not presented to the state courts.” (Instrument No. 32 at 11, n.5).
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of all but one claim.
Federal courts have long required inmates to give state courts the first chance to rectify
constitutional violations. See Ex parte Royall, 117 U.S. 241, 251-52 (1886). To avoid the
“‘unseem[liness]’ of a federal district court’s overturning a state court conviction without the
state courts having had an opportunity to correct the constitutional violation in the first instance,”
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), the AEDPA requires an inmate to raise his
federal habeas claims in the highest state court before federal review becomes available. See 28
U.S.C. § 2254(b)(1). The AEDPA precludes federal review over unexhausted claims for any
purpose other than to deny their merits. See 28 U.S.C. § 2254(b)(2). Tercero raised claims five
through nine, and part of claim one, for the first time in his federal habeas petition.6 He did not
advance those claims when this Court stayed his case for the exhaustion of state-court remedies.
Accordingly, the AEDPA precludes this Court from affording habeas relief on those issues. See
28 U.S.C. § 244(b)(2).
The procedural default doctrine, which functions as a “[a] corollary to the habeas
statute’s exhaustion requirement,” also constricts the scope of federal habeas review. Dretke v.
Haley, 541 U.S. 386, 392-93 (2004); see also Coleman v. Thompson, 501 U.S. 722, 729 (1991)
(stating that federal courts “will not review a question of federal law decided by a state court if
the decision of that court rests on a state law ground that is independent of the federal question
and adequate to support the judgment”). Federal practice limits habeas review to those claims
that an inmate presented in compliance with state procedural law. See Haley, 541 U.S. at 392;
Lambrix v. Singletary, 520 U.S. 518, 523 (1997); Coleman, 501 U.S. at 729. If an inmate fails to
follow well-established state procedural requirements for attacking his conviction or sentence,
Tercero’s pro se habeas application did not include his complaint that trial counsel failed to champion his
Vienna Convention rights (claim 1(d)).
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and the state court thereby finds that he has defaulted consideration of any issues, a procedural
bar precludes federal adjudication. See Lambrix, 520 U.S. at 523; Coleman, 501 U.S. at 732.
Tercero raised claims two and three, as well as part of claim one, in his pro se state
habeas application. The Court of Criminal Appeals dismissed Tercero’s pro se application as an
abuse of the writ. Ex parte Tercero, No. WR-62,592-01 and WR-62,593-02 (Tex. Crim. App.
Nov. 16, 2005). Tercero’s failure to present his claims to the state courts in a procedurally
adequate manner bars federal courts from considering their merits.
Similarly, a petitioner’s failure to exhaust his claims results in a federal procedural bar.
See Horsely v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999). “A procedural default . . . occurs
when a prisoner fails to exhaust available state remedies and ‘the court to which the petitioner
would be required to present his claims in order to meet the exhaustion requirement would now
find the claims procedurally barred.’” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997)
(quoting Coleman, 501 U.S. at 734 n.1); see also Steele v. Young, 11 F.3d 1518, 1524 (10th Cir.
1993) (holding that when “it is obvious that the unexhausted claim would be procedurally barred
in state court, we will forego the needless ‘judicial ping-pong’ and hold the claim procedurally
barred from habeas review”). Because Tercero never presented his unexhausted claims in his
previous state habeas applications, TEX. CODE CRIM. PRO. art. 11.071 § 5 would prohibit the state
courts from considering them in a subsequent application. Texas’ abuse-of-the-writ doctrine,
therefore, forecloses federal review. Only Tercero’s Roper claim is not subject to a procedural
Judicial accommodation prevents a state procedural default from becoming an
insurmountable barrier to federal review.
In Coleman v. Thompson, the Supreme Court
recognized that a federal petitioner may overcome the default of his claims if he can
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“demonstrate cause for the default and actual prejudice as a result of the alleged violation of
federal law[.].” 501 U.S. at 750 (emphasis added).7 A petitioner shoulders the burden of
meeting the cause and actual prejudice standard. See McCleskey v. Zant, 499 U.S. 467, 494-95
Tercero argues that ineffective representation by his habeas attorney should forgive the
procedural impediments to federal review. (Instrument No. 31 at 8-9). When Tercero filed his
federal habeas petition, well-settled Fifth Circuit law decisively held that habeas counsel’s
representation could not constitute cause. See, e.g., Brown v. Dretke, 419 F.3d 365, 378 (5th Cir.
2005); Elizalde v. Dretke, 362 F.3d 323, 331 (5th Cir. 2004); Beazley v. Johnson, 242 F.3d 248,
271 (5th Cir. 2001). However, the Supreme Court in Martinez v. Ryan recently found that
deficient performance by a state habeas attorney may amount to cause under some
circumstances. The Martinez court held:
Where, under state law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective assistance at
trial if, in the initial-review collateral proceeding, there was no counsel or counsel
in that proceeding was ineffective.
Martinez, ___ U.S. at ___, 132 S. Ct. at 1320. The Martinez Court reasoned that when, as in
Arizona, inmates can only raise Strickland claims on state habeas review, a state habeas
attorney’s deficient performance may forgive a federal procedural bar.
The Fifth Circuit, however, subsequently held that Martinez does not apply to federal
habeas cases arising from Texas convictions. See Foster v. Thaler, 481 F. App’x 229, 230 (5th
Cir.) (unpublished), cert. denied, ___ U.S. ___, 2012 WL 4365081 (Sept. 25, 2012); Newbury v.
A federal court may also adjudicate barred claims if “failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750. A fundamental miscarriage of justice “is limited to cases where
the petitioner can make a persuasive showing that he is actually innocent of the charges against him.” Finley v.
Johnson, 243 F.3d 215, 220 (5th Cir. 2001). Tercero does not claim that he is actually innocent.
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Thaler, 481 F. App’x 953 (5th Cir. 2012) (unpublished); Ayestas v. Thaler, 475 F. App’x 518
(5th Cir. 2012) (unpublished); Gates v. Thaler, 476 F. App’x 336, 342 (5th Cir. 2012)
(unpublished); Ibarra v. Thaler, 687 F.3d 222, 227 (5th Cir. 2012). “Martinez, by its own terms,
. . . establishes a specific and narrow exception to the Coleman doctrine[.]” Ibarra, 687 F.3d at
225-26. Unlike in Arizona, Texas inmates can raise Strickland claims in a motion for a new trial
or on direct appeal. Thus, the Fifth Circuit reasons that Texas inmates are “not entitled to the
benefit of Martinez for [their] ineffectiveness claims[.]” Ibarra, 687 F.3d at 227.
The Supreme Court has recently granted certiorari review in a case that will decide
whether Martinez applies to Texas. See Trevino v. Thaler, 568 U.S. ___ (2012).8 Fifth Circuit
precedent “remains binding until the Supreme Court provides contrary guidance.” Neville v.
Johnson, 440 F.3d 221, 222 (5th Cir. 2006). Nevertheless, even if the Court assumes that
Martinez applies to Texas, Tercero has not met his burden to overcome the procedural bar of his
Tercero complains that his state habeas attorney is responsible for defaulting all the
claims procedurally unavailable on federal review. Martinez’s protections explicitly extend only
to “a substantial claim of ineffective assistance at trial[.]” Martinez, ___ U.S. ___, 132 S. Ct. at
1320. Of the eight claims that Tercero faults counsel for not raising, only two relate to trial
counsel’s representation. State habeas review was not the first or only forum to raise his
additional grounds for relief, such as his Brady or insufficiency-of-the-evidence claims.
Martinez only would allow claims one and three to serve as precursors to an ineffectiveassistance-of-habeas-counsel claim.
Martinez reaffirmed that an inmate only meets the cause requirement by showing that the
The Supreme Court has also stayed the execution of Texas inmates raising a Martinez issue. See Haynes v.
Thaler, 133 S. Ct. 498 (2012); Balentine v. Thaler 133 S. Ct. 90 (2012).
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“attorney in his first collateral proceeding was ineffective” and that the underlying “claim of
ineffective assistance of trial counsel is substantial.” Martinez, ___ U.S. at ___, 132 S. Ct. at
1321. Then, the inmate must also show “actual prejudice.” Id. Tercero’s pleadings fail to prove
either cause or prejudice.
The cause test relies on the ineffective-assistance-of-counsel standard from Strickland v.
Washington, 466 U.S. 668 (1984) to assess an attorney’s efforts. See Edwards v. Carpenter, 529
U.S. 446, 451 (2000) (“Not just any deficiency in counsel’s performance will do, however; the
assistance must have been so ineffective as to violate the Federal Constitution.”); Murray v.
Carrier, 477 U.S. 478, 492 (1986) (“Attorney error short of ineffective assistance of counsel
does not constitute cause[.]”). A petitioner meets Strickland’s standards by showing that “a
defense attorney’s performance falls below an objective standard of reasonableness and thereby
prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 4 (2003) (emphasis added). In the
Martinez context, a petitioner must make a dual Strickland showing to overcome a procedural
bar. A petitioner must demonstrate (1) deficient performance and resulting prejudice in habeas
counsel’s failure to raise a claim based on (2) trial counsel’s deficient performance and
prejudice. Here, Tercero has not shown that state habeas counsel’s failure to raise claims one
and three amounts to deficient performance.
Tercero makes brief, but broad, allegations that fault state habeas counsel for not
performing an adequate investigation or presenting meritorious arguments. (Instrument Nos. 6 at
10; 45 at 12-13). Tercero’s briefing, however, does nothing more than observe that habeas
counsel did not raise his now-barred grounds for relief.
Such perfunctory argument is
insufficient to show cause. See Smith v. Murray, 477 U.S. 527, 535 (1986) (“‘[T]he mere fact
that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim
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despite recognizing it, does not constitute cause for a procedural default.’”) (quoting Carrier,
477 U.S. at 486-87). An effective attorney does not raise every nonfrivolous claim. In fact, the
process of “‘winnowing out weaker arguments on appeal and focusing on’ those more likely to
prevail, far from being evidence of incompetence, is the hallmark of effective . . . advocacy.”
Smith, 477 U.S. at 536 (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).
Tercero’s briefing does not indicate that state habeas counsel, who filed a lengthy
application raising five grounds for relief, ignored strong arguments against trial counsel’s
representation. Tercero has only made a passing effort to show that claims one and three would
constitute viable grounds for habeas relief. Those claims make summary allegations that trial
counsel provided ineffective assistance by failing to investigate Tercero’s case; engage in a
proper mitigation investigation; obtain Tercero’s medical and school records; argue that the State
denied Tercero’s Vienna Convention rights; and call Sylvia Cotera to testify at trial. Tercero,
however, has not substantiated those allegations. His pleadings do not specify what investigation
trial counsel ignored or how it would have impacted his defense. Tercero has not supported his
allegations with affidavits or other admissible evidence that a reasonably effective attorney
would have put before the jury. Tercero has not produced his school or medical records,
amassed unpresented material, or identified unpursued mitigating theories.
He has not
substantiated any previously unarticulated legal objections.9 Tercero has not proven that trial
counsel provided defective representation, much less that habeas counsel should have raised the
Additionally, Tercero has not shown that trial counsel missed making game-changing legal objections or calling
important fact witnesses. For example, Tercero faults trial counsel for not objecting to an alleged violation of his
Vienna Convention rights, yet the law does not recognize an individually enforceable right under that treaty,
Sanchez-Llamas v. Oregon, 548 U.S. 331, 338 (2006), Leal Garcia v. Quarterman, 573 F.3d 214, 218 n.19 (5th Cir.
2009), Medellin v. Dretke, 371 F.3d 270, 280 (5th Cir. 2004). Also, Tercero has not proven that trial counsel erred
by not calling Ms. Cotera as a defense witness. Ms. Cotera testified for the prosecution. Tercero has not explained
how calling her as a defense witness would have resulted in testimony different from trial counsel’s lengthy crossexamination of her.
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defaulted ineffective-assistance claims in his habeas application. See Roe v. Flores-Ortega, 528
U.S. 470, 482 (2000) (recognizing the “strong presumption of reliability to judicial proceedings
and requir[ing] a defendant to overcome that presumption by show[ing] how specific errors of
counsel undermined the reliability of the finding of guilt[.]”). Tercero has not demonstrated
cause to overcome the procedural bar.
In addition to not meeting the cause standard, Tercero’s pleadings also fall short of
proving actual prejudice. “The Supreme Court has been reluctant to define the precise contours
of the prejudice requirement.” Barrientes v. Johnson, 221 F.3d 741, 769 (5th Cir. 2000); see
also Williams v. Taylor, 529 U.S. 420, 444 (2000) (leaving to the lower courts “[q]uestions
regarding the standard for determining the prejudice that petitioner must establish to obtain
relief”). Still, Tercero must show more than “a possibility of prejudice,” but that the errors
“worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v. Frady, 456 U.S. 152, 168 (1982); see also Engle v.
Isaac, 456 U.S. 107, 129 (1982); Felder v. Johnson, 180 F.3d 206, 215 n.12 (5th Cir. 1999). For
the same reasons that he has not shown cause, Tercero’s cursory arguments cannot prove actual
prejudice. This Court cannot reach the merits of Tercero’s barred claims.10
Tercero did not give the state courts a fair opportunity to consider most of his claims.
State habeas counsel’s failure to include those claims in Tercero’s initial state habeas application
cannot forgive their default. Thus, this Court cannot reach the merits of claims one through three
and five through nine.11 Only Tercero’s fourth claim – that his age at the time of the crime
This Court has reviewed the merits of Tercero’s barred claims in the alternative and, if no procedural
impediments foreclosed federal review, the Court would still deny his federal habeas petition.
The Court observes that the exceptions to the procedural-bar doctrine rest on the operation of equity. See
Haley, 541 U.S. at 393. Tercero did not give Texas an opportunity to consider his unexhausted claims on initial
habeas review, a circumstance he blames on habeas counsel. When the Court gave him the opportunity to exhaust
all “claims he has not presented to the state courts,” (Instrument No 32 at 11, n.5), he chose only to raise his Roper
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makes him ineligible for a death sentence – is fully available for federal review.
TERCERO’S ROPER CLAIM
The Supreme Court in Roper v. Simmons, 543 U.S. 551 (2005), held that the Eighth
Amendment prohibits the execution of offenders who were minors when they killed. The Roper
Court stated: “The age of 18 is the point where society draws the line for many purposes between
childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought
to rest.” Id. at 574. Tercero claims that he was under age 18 when he committed the murder for
which he received a death sentence. To prevail, he must show that he was born after March 31,
1979 (18 years before the murder).
Indicators of Tercero’s Age Before the Roper Decision
Before the Supreme Court issued the Roper decision, nothing indicated that Tercero was
a minor when he killed. The indictment against Tercero listed his birth date as August 20, 1977.
Clerk’s Record at 3. While differing somewhat in the particulars, the testimony and evidence
from trial confirmed that Tercero was over 18 when he committed the capital murder. For
example, the defense submitted into evidence the translation of a certificate from Posoltega,
Nicaragua showing that Tercero was born on August 20, 1977 (hereinafter “1977 Posoltega birth
certificate”). Tr. Vol. 27, DX-3. The defense also submitted a Nicaraguan police report that
listed his age as 22 at the time of an arrest in August of 1998. Tr. Vol. 27, DX-3. When
previously arrested in the United States, Tercero gave a birth date of August 20 in either 1976 or
1977. Witnesses who knew Tercero as a youth provided trial testimony that described his age in
claim. Tercero’s choice not to present his unexhausted claims when given the opportunity to do so also cuts against
the operation of equity in his favor.
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a way inconsistent with a Roper claim.12 Importantly, Tercero himself testified that he was 24
years old at the time of trial (October 2000). Tr. Vol. 19 at 18. Additionally, Tercero explained
that he came to the United States in 1993 when he was 17 years old. Tr. Vol. 19 at 19, 72. In
sum, nothing at the time of trial suggested that Tercero was a juvenile when he committed the
murder for which he received a death sentence.
The Parties’ Evidence and Arguments
After the Supreme Court decided Roper in 2005, Tercero for the first time claimed to
have been under age 18 at the time of the murder. Through subsequent briefing, Tercero’s
arguments supporting his Roper claim have evolved.
The federal petition filed through
appointed counsel summarily argued that Tercero was born on August 20, 1979. In support,
Tercero filed only one piece of evidence, a “Certificado de Naciemiento” (“birth certificate”)
issued by the “Registro del Estado Civil de Las Personas” in Chichigalpa, Nicaragua showing a
birth date in 1979 (Instrument No. 6, Exhibit A; hereinafter “1979 Chichigalpa birth
certificate”).13 The document includes two other dates: a “fecha de inscripicion” of January 1,
1980, and a “fecha de emision” of April 18, 2005. (Instrument No. 6).
Importantly, Tercero’s initial federal petition did not explain why Tercero and others had
previously considered him to be born much earlier than the date reflected in the 1979
Chichigalpa birth certificate. Curiously, his federal petition did not clarify why that document
bore a “fecha de emision” of April 18, 2005, a date only six weeks after the Supreme Court
handed down Roper.
An uncle testified that he has known Tercero since 1987 when he was 10 years old. Tr. Vol. 23 at 105. A
friend, Michael Alberto Mondragon, testified that he met Tercero when he was five years old in approximately
1982. Tr. Vol. 23 at 129-30. His friend’s mother testified that Tercero left to live in the United States when he was
18. Tr. Vol. 23 at 170-71. Another uncle testified that Tercero “was 18 years old” when he left Nicaragua. Tr. Vol.
23 at 203; Tr. Vol. 24 at 6.
Tercero also attached to his petition a copy of his mother Lydia Tercero Hueto’s trial testimony that established
the names of his parents, but otherwise did not support his Roper claim.
16 / 31
Respondent’s original answer alleged that someone altered Nicaraguan birth records after
the Supreme Court issued its Roper decision.
According to Respondent, Nicaraguan law
requires parents to inscribe a child’s birth at the local civil registry with little official oversight.
Nicaraguan law also allows the information on the birth certificate to be changed through judicial
order. When a change is requested, the civil registry office provides a “literal” which is an
official transcript of the inscription history and subsequent modification.
Respondent asserts that “the evidence overwhelmingly demonstrates that Tercero was
born in August 1976, and suggests that the modification of the birth date on his Chichigalpa
inscription may have been an attempt to disguise the true date of his birth.” (Instrument No. 19
at 31). Respondent explains that the “fecha de emision” on the 1979 Chichigalpa birth certificate
means someone changed the Nicaraguan registry entry to show a 1979 birth. With the assistance
of the Fraud Prevention Unit of the United States Embassy in Nicaragua, Respondent obtained
additional documentary evidence and insight into the 1979 Chichigalpa birth certificate. In the
answer to Tercero’s petition, Respondent provided the Court with:
Another birth certificate for Tercero from Posoltega, Nicaragua, this time
showing an August 20, 1976 birth. (Instrument No. 19, Exhibit B;
hereinafter “1976 Posoltega birth certificate”). This certificate shows a
registry date of August 30, 1976, and was signed by the registrar on May
17 / 31
A certificate that Tercero gave Respondent from the Civil Registrar Office
of Chichigalpa indicating that someone modified the 1979 Chichigalpa
birth certificate on October 20, 2006, only three weeks before Tercero
filed his pro se federal petition. (Instrument No. 19, Exhibit A).
Respondent also submits a second certificate indicating that someone
rectified the birth records on October 20, 2006. (Instrument No. 19,
The “literal” from the 1979 Chichigalpa birth certificate reflecting that on
July 14, 2006, Nicaraguan Judge Matha R. Navarrete M. ordered that his
inscription be changed to reflect an inscription date of January 7, 1980,
and a birth date of August 20, 1979. These changes were recorded on
October 20, 2006. (Instrument No. 19, Exhibit C).
With that evidence, Respondent argued that “Tercero’s date of birth was originally inscribed as
August 20, 1976, the same as the Posoltega inscription, but that . . . it was modified for some
unknown reason to show his birth as being three years later.” (Instrument No. 19 at 31).
Respondent argued that “Tercero has not provided any convincing evidence to illustrate
that his modified Chichigalpa inscription now contains credible information about his birth
date.” (Instrument No. 19 at 32). Respondent, however, did not subsequently oppose Tercero’s
request for investigative assistance. (Instrument No. 25). Given the important factual issues
relating to Tercero’s age, and the strange modification of the birth information after the Roper
decision, this Court allowed Tercero to retain an investigator, Norma Villanueva, who traveled to
Nicaragua. (Instrument No. 26). Tercero’s reply to Respondent’s answer relied on Villanueva’s
investigation to explain the renovation of his birth certificate.
At the same time, her
investigation raised for the first time a bizarre set of circumstances that allegedly resulted in the
different birth certificates.
Ms. Villanueva produced an affidavit attesting that the Office of Registry in Chichigalpa,
Nicaragua contains birth registrations for (1) a Bernardo Aban Tercero who was born on August
20, 1976, and registered by his mother on August 30, 1976, and (2) a Bernardo Aban Tercero
who was born on August 20, 1979, and registered by his mother in January of 1980. Tercero did
not provide the Court with a copy of those official entries. Instead, Tercero submitted a different
certificate from Chichigalpa, this one with the August 20, 1979 birth date but reflecting a 2006
rectification and bearing a 2007 certification. (Instrument No. 31, Exhibit B).
Now, however, Tercero had to explain why the Nicaraguan records contained birth
entries for two children named Bernardo Aban Tercero.
18 / 31
Villanueva secured undated and
unnotarized declarations from family members and friends in Nicaragua explaining the different
birth certificates. At trial, Tercero’s mother had testified that Tercero was the oldest of her
children. Tr. Vol. 23 at 191, 195. An uncle had explained that Tercero was the first grandchild
in the family. Tr. Vol. 23 at 198. Villanueva, however, uncovered information allegedly
suggesting that their testimony was incorrect or incomplete. The declaration from Tercero’s
mother states that she gave birth to a son named Bernardo Aban Tercero in 1976. Two years
later, that son died after she found a scorpion in bed with him. She later had a second son, the
petitioner in the instant action, and also named him Bernardo Aban Tercero. (Instrument No. 31,
Exhibit C). Additional documents from friends and family members recall the birth, death, and
funeral of the first son, although they differ somewhat in various details. (Instrument No. 31,
Exhibits D though H).
With different birth certificates in the record – from two different cities and from three
different years – the Court recognized that factual questions remained unresolved. In particular,
the Court observed various conflicts or deficiencies in the record, to wit:
Tercero has not explained why he and others gave allegedly incorrect
testimony at trial about his true birth date. Tercero has not explained how
he came to confuse himself with his dead older brother.
Information before the Court indicates that Tercero may have been born in
1976, 1977, or 1979. The only documentation before the Court that does
not flow from the renovation of Tercero’s birth date after Roper shows
that his age makes him eligible for execution. While Tercero’s
investigator claims that the official birth registry in Nicaragua contains an
entry for his birth in 1979, Tercero has not provided the Court with an
authenticated copy of that information.
19 / 31
The parties make many statements about the operation of Nicaraguan law
without providing legal citation or expert testimony explaining birth
registry under Nicaraguan law.
The testimony and evidence at trial, as well as the new affidavits, give
widely varying accounts of Tercero’s parentage. The failure to identify
his correct father has muddied the accounts of two sons named Bernardo
Aban Tercero and raises credibility questions.
Tercero’s mother testified at trial that Tercero was the oldest of her
children, Tr. Vol. 23 at 191, 195, and an uncle testified that Tercero was
the first grandchild in the family, Tr. Vol. 23 at 198. Tercero’s mother
does not reconcile this testimony, and other inconsistencies, with the new
account about the mysterious older son.
Tercero makes the incredible allegation, which is noticeably absent from
the new affidavits, that both sons named Bernardo Aban Tercero were
born on August 20. This unlikely happenstance, unless verified, not only
raises credibility issues but handicaps his ability to secure relief. Tercero
must not only show that he was born in 1979, but must prove with
precision that he was not born before March 31 of that year, and thus was
under 18 when the crime occurred.
Tercero’s claim that he was a minor when the crime occurred only arose
after the Supreme Court issued the Roper decision, making the evolving
tale that supports his allegation suspect without additional credible
(Instrument No. 32 at 7-9).
The Court stayed the instant action to allow Texas the first
opportunity to consider Tercero’s Roper claim.
Successive State Habeas Review
Tercero filed a successive state habeas application in the Court of Criminal Appeals.
Tercero, however, did not present the Texas courts with any new evidence or argument. In fact,
Tercero only filed two items of evidentiary support with his successive state application: the
birth certificate showing a 1979 birth and the transcript of his mother’s trial testimony. His
successive application did not mention the existence of a dead older brother, much less include
the materials produced from Villanueva’s investigation.
The Court of Criminal Appeals remanded the action to the lower court for factual
development. The State of Texas filed a response to the successive application which included
all of the evidence presented in the federal action, including that amassed by Tercero’s
20 / 31
investigator. Second State Habeas Record at 75-172.14 The State’s response, however, did not
discredit Tercero’s Roper claim by challenging the results of Villanueva’s investigation. Instead,
the State emphasized that Tercero had consistently represented his date of birth being in 1976 or
1977 before the murder.
In addition to the previously mentioned pre-Roper indicators of
Tercero’s age, the State pointed to the following:
Tercero had relied on the birth certificate showing a birth date of August
20, 1977, when obtaining a Texas identification card from the Texas
Department of Public Safety in 1994.
Tercero’s criminal history lists his birthdate as either August 20, 1976 or
August 20, 1977.
When arrested twice previously in Harris County, Tercero gave a false
name but used the August 20, 1977, date of birth.
In 1996 and 1999 the United States Immigration and Naturalization
Service charged Tercero with Unlawful Entry in 1996 and 1999 and used
the August 20, 1976 and August 20, 1977 birth dates.
When apprehended in 1999 and booked into the Hidalgo County, Texas,
jail, the booking information includes a date of birth of August 20, 1976.
The FBI listed in wanted posters and charged him with Unlawful Flight to
Avoid Prosecution - Capital Murder using the August 20, 1976 date.
During an August 26, 1999 interview with FBI Special Agent Rick
Gannaway, Tercero indicated his date of birth was August 20, 1976.
On August 7, 2009, the lower habeas court found that “no controverted, previously
unresolved factual issues material to the legality of [Tercero’s] confinement exist.” Successive
State Habeas Record at 333. The parties filed proposed factual findings and legal conclusions.
Without holding a hearing, the lower court signed the State’s proposed findings.
The findings did not address the Nicaraguan birth certificates or the affidavits Tercero
Curiously, the amended petition Tercero filed when he returned to federal court claims that he submitted that
evidence to the state courts. (Instrument No. 45 at 15-16) (“The evidence the Petitioner presented to the trial court
was that which was presented to this court in the earlier proceeding.”) (emphasis added).
21 / 31
submitted in federal court. Instead, the findings listed the numerous times Tercero or others have
represented his birth as being in 1976 or 1977 and found in relevant part:
The Court, in light of the ample documentation of and [Tercero’s] prior continual
assertion of a birthdate establishing that he was well over the age of eighteen at
the time of the offense, finds unpersuasive and incredible the alleged birth record
provided by [Tercero] in the instant writ asserting a birthdate of August 20,1979.
The Court finds that [Tercero] fails to show by a preponderance of the evidence
that he was under the age of eighteen at the time of the offense.
Successive State Habeas Record at 352.
The Court of Criminal Appeals adopted the lower court’s findings without alteration and
denied relief. Ex parte Tercero, 2010 WL 724405, at *1 (Tex. Crim. App. 2010). The Court of
Criminal Appeals stated:
The trial court, without holding an evidentiary hearing, adopted the State's
proposed findings of fact and conclusions of law recommending that relief be
denied because Applicant has failed to show by a preponderance of the evidence
that he was younger than 18 years of age when he committed the instant offense.
This Court has reviewed the record with respect to the allegation made by
applicant. We adopt the trial judge's findings and conclusions. Based upon the
trial court's findings and conclusions and our own review, we deny relief.
Id. The parties then returned to federal court.
Renewed Federal Proceedings
After this Court reopened the case Tercero filed another amended petition relying on the
same arguments and evidence he had presented earlier in the federal action. With regard to the
state court’s rejection of his Roper claim, Tercero complained that the state court decision “did
nothing to address or counter the substantial evidence pertaining to the actual authenticity of the
Petitioner’s  birth records . . . nor did they address the veracity of the affidavits obtained
by [his investigator].” (Instrument No. 45 at 18-19). Tercero conceded that the evidence
“show[ed] inconsistent dates of birth,” but faulted the state court for doing “nothing to attempt
22 / 31
to resolve the inconsistencies.” (Instrument No. 45 at 19).
Respondent filed a new answer arguing that the AEDPA affords deference to the state
court’s decision. In addition to relying on the state court findings, Respondent challenged the
1979 Chichigalpa birth certificate and the declarations explaining Tercero’s birth. Respondent
asserted that the “mysterious modification [in 2005] casts an enormous shadow of doubt over
whether Tercero’s actual date of birth was in 1979 as he asserts.” (Instrument No. 53 at 12).
Tercero filed a reply. Tercero first contrasted Villanueva’s description of the official
records in Chichigalpa against Respondent’s unverified statements about the 2005 rectification.
Given the unsupported nature of those statements, Tercero argued that he “should at the very
least be entitled to obtain this information either by testimony or deposition of the individuals
who conducted the investigation, given the obvious disparity between the Petitioner’s and the
Respondent’s information.” (Instrument No. 61 at 12). Additionally, Tercero asked this Court to
hold an evidentiary hearing. (Instrument No. 61 at 13).
Given the record, the Court ordered the parties to clarify how the AEDPA applied to the
Roper claim, whether factual development was available or necessary, and whether any
additional matters needed resolution before proceeding to adjudication. (Instrument No. 62).
Respondent subsequently asked the Court to confine its review to the evidence and argument
Tercero presented in his successive state habeas application and, under the AEDPA’s deferential
review, find his Roper claim to be without merit. (Instrument No. 71). Tercero contended that,
by ignoring the weight of evidence he adduced on federal review, the state court’s adjudication
does not merit deference under the AEDPA. Tercero urges the Court to allow full factual
development and hold an evidentiary hearing to resolve lingering concerns. (Instrument No. 76).
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Application of the AEDPA
The application of the AEDPA is a threshold concern in this case. The AEDPA, which
“imposes a highly deferential standard for evaluating state-court rulings and demands that statecourt decisions be given the benefit of the doubt,” codifies traditional principles of finality,
comity, and federalism that underlie federal habeas review. Renico v. Lett, ___ U.S. ___, 130 S.
Ct. 1855, 1862 (2010) (quotations omitted). With particular applicability to the instant case, the
AEDPA restricts both the nature and scope of federal habeas review.
The AEDPA generally “bars relitigation of any claim ‘adjudicated on the merits’ in state
court, subject only to the exceptions in [28 U.S.C.] §§ 2254(d)(1) and (d)(2).” Harrington v.
Richter, ___ U.S. at ___, 131 S. Ct. 770, 784 (2011). Even when a state court denies the merits
of an inmate’s constitutional claims, however, some circumstances may disentitle that decision to
AEDPA deference. The Supreme Court has identified certain classes of offenders who the
Constitution protects from execution.
Capital defendants who are incompetent, mentally
retarded, or below age 18 are exempt from society’s ultimate punishment. Given that absolute
prohibition, the severity of the punishment, and the irreversibility of error, the Constitution
places high demands on a state court’s assessment of whether a death-row inmate qualifies for
those constitutional protections. In that narrow range of cases, the state courts must provide an
inmate an adequate opportunity to develop his claims before AEDPA deference applies on
federal review. See Panetti v. Quarterman, 551 U.S. 930, 953 (2007); Blue v. Thaler, 665 F.3d
647, 656-67 (5th Cir. 2011); Wiley v. Epps, 625 F.3d 199, 207 (5th Cir. 2010); Rivera v.
Quarterman, 505 F.3d 349, 358 (5th Cir. 2007).15
Courts have thus far only applied this exception in the case of categorical exceptions to the death penalty, such
as incompetence under Ford v. Wainwright, 477 U.S. 399 (1986) and mental retardation under Atkins v. Virginia,
536 U.S. 304, 311–314 (2002). Roper claims, like those brought under Ford and Atkins, “affirmatively limit the
class of persons who are death penalty eligible[.]” Rivera, 505 F.3d at 358; see also Graham v. Florida, ___ U.S.
24 / 31
The Court ordered the parties to “discuss whether the state courts satisfied Tercero’s
rights by denying relief without holding a hearing, or even addressing much of the evidence he
had adduced in federal court.” (Instrument No. 62 at 8). After that briefing, the Court finds that
the state courts afforded Tercero all the process he was due. “Due process does not require a full
trial on the merits,” but only an “‘opportunity to be heard.’” Rivera, 505 F.3d at 358 (quoting
Ford v. Wainwright, 477 U.S. 399, 424 (1986) (Powell, J., concurring in part and concurring in
the judgment)); see also Hines v. Thaler, 456 F. App’x 357, 363 (5th Cir. 2011). The state courts
allowed Tercero to file a successive habeas application and did not limit the evidence he could
attach to that pleading. Tercero chose to emphasize only a portion of the information he had
amassed on federal review. Even though the State attached to its response the full breadth of
evidence developed, Tercero did not signal to the state courts that the federal evidence needed
airing in a state hearing. While asking the state courts to provide resources to establish his
claims, Tercero never gave the state courts any indication that he wished to resolve
inconsistencies between the various birth certificates and the unusual story about his older
The state courts gave Tercero an opportunity to be heard, and he chose to limit what the
courts would consider. As Respondent observes, “[t]he fact that Tercero failed to take advantage
of the opportunity to present evidence – again, his briefing on the issue consisted of only one
page and his evidentiary support was limited to only one relevant exhibit – does not mean he was
denied the opportunity.” (Instrument No. 71 at 7-8). The AEDPA, therefore, applies to his
Tercero’s age at the time of the murder is a question of fact, reviewed under 28 U.S.C.
___, 130 S. Ct. 2011, 2022 (2010) (placing Roper claims in the same group as Ford and Atkins claims in which the
Supreme Court “has adopted categorical rules prohibiting the death penalty”). The Court will assume that the States
must also hold a full and fair hearing into the merits of a properly raised Roper claim.
25 / 31
§ 2254(d)(2). Under § 2254(d)(2) a court may grant habeas relief “only if the state court’s
adjudication of his claim on the merits . . . ‘resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.’” Rabe v. Thaler, 649 F.3d 305, 308 (5th Cir. 2011). Under section 2254(d)(2), a
petitioner must show more than that a state court’s decision was incorrect or erroneous; the
decision must be objectively unreasonable, “a substantially higher threshold.”
Landrigan, 550 U.S. 465, 473 (2007). Even if “[r]easonable minds reviewing the record might
disagree” about the finding in question, “on habeas review that does not suffice to supersede the
trial court’s . . . determination.” Rice v. Collins, 546 U.S. 333, 341-42 (2006); see also Wood v.
Allen, ___ U.S. ___, 130 S. Ct. 841, 849 (2010). A petitioner must show that “a reasonable
factfinder must conclude” that the state court’s determination of the facts was unreasonable.
Rice, 546 U.S. at 341 (emphasis added).16
Similarly, the AEDPA provides substantial deference to a state court’s resolution of
factual issues. Here, the Texas state courts made detailed and comprehensive fact findings on
habeas review. Federal courts must presume the underlying factual determinations of the state
court to be correct, unless the petitioner “rebut[s] the presumption of correctness by clear and
Under the AEDPA, “a determination of a factual issue made by a State court shall be presumed to be correct”
and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing
evidence.” 28 U .S.C. § 2254(e)(1). The Fifth Circuit has observed that “[t]he relationship between this provision
and § 2254(d)(2) is ambiguous.” Hines v. Thaler, 456 F. App’x 357, 364 n.5 (5th Cir. 2011). The Supreme Court
has “explicitly left open the question whether § 2254(e)(1) applies in every case presenting a challenge under §
2254(d)(2)[.]” Wood v. Allen, ___ U.S. ___, 130 S. Ct. 841, 849 (2010); see also Rice v. Collins, 546 U.S. 333, 339
(2006) (refusing to decide “whether and when” to use the presumption of correctness in 2254(d)(2) cases). A split
exists among the circuit courts as to the interrelationship between those AEDPA provisions. The Fifth Circuit has
instructed that “the clear-and-convincing evidence standard of § 2254(e)(1) —which is arguably more deferential to
the state court than is the unreasonable-determination standard of § 2254(d)(2) — pertains only to a state court’s
determinations of particular factual issues, while § 2254(d)(2) pertains to the state court’s decision as a whole.”
Blue, 665 F.3d at 654; see also Valdez v. Cockrell, 274 F.3d 941, 951 n. 17 (5th Cir. 2001). This Court must follow
Fifth Circuit precedent and apply 28 U.S.C. §2254(e)(2) to the specific factual findings and 28 U.S.C. §2254(d)(2)
to its ultimate legal conclusion.
26 / 31
convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Miller-El, 537 U.S. at 341.
The AEDPA also confines what evidence this Court may consider. Because Tercero
chose to limit the case he put before the state court himself, and the state courts did not explicitly
mention the evidence Respondent attached to the response, the Court must decide what evidence
will inform its review. In Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1399-1400
(2011), the Supreme Court reasoned that, because “[i]t would be strange to ask federal courts to
analyze whether a state court’s adjudication resulted in a decision that unreasonably applied
federal law to facts not before the state court,” federal review only examines “the record that was
before that state court.” Relying on Pinholster, Respondent asks the Court to limit its review
under the AEDPA to the scant evidence Tercero attached to his successive state decision.
Recognizing that the State included the entire federal record in its pleadings, Respondent states
that “they were attached solely in an administrative fashion to demonstrate the procedural history
of the case” (Instrument No. 71 at 14). According to Respondent’s reading of Pinholster, federal
review under the AEDPA is apparently bound to the evidence presented by the petitioner on state
No case has circumscribed federal review to that extent. In light of Pinholster, courts
should consider “the record that was before the state habeas court.” Clark v. Thaler, 673 F.3d
410, 416-17 (5th Cir. 2012). The Pinholster decision, however, did not limit the evidence to
only that presented by one party or explicitly mentioned by the state court. Pinholster rested on
how the “AEDPA’s statutory scheme is designed to strongly discourage” inmates from
“submit[ing] new evidence in federal court,” not on limiting federal consideration of evidence
plainly before the state courts. Pinholster, ___ U.S. at ___, 131 S. Ct. at 1401. This Court will
consider all the evidence in the state court record.
27 / 31
The state courts did not issue any factual findings that explicitly mentioned some of the
evidence attached to the State’s response. Silence, however, does not disentitle the state court
decision to AEDPA deference. “The presumption of correctness not only applies to explicit
findings of fact, but it also applies to those unarticulated findings which are necessary to the state
court's conclusions of mixed law and fact.” Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir.
2001). This Court considers the state courts to have found any evidence contrary to its decision
to be without credibility or not as persuasive as that on which it explicitly based its reasoning.
Having framed the prism through which the record is seen, the Court turns to Tercero’s
Tercero Has Not Shown an Entitlement to Federal Habeas Relief
Before the Supreme Court held that the Constitution outlaws the execution of juvenile
offenders, Tercero repeatedly and consistently gave his date of birth as being well before he
could become eligible for that constitutional safeguard. Friends and family members testified at
trial in a manner inconsistent with Roper protection. Official documents verified their testimony.
Only when a later birth could save him from execution did Tercero allege that he was born in
1979. Even then, the information about that date has suspiciously come out responsively and in
The arguments Tercero raised in his successive state habeas application were the same
that he initially put before this Court: bare reliance on the 1979 Chichigalpa birth certificate. The
origin and timing of that document have brought its credibility into question. Tercero has never
adequately explained the puzzling modification of its inscription only weeks after the Supreme
Court issued Roper. The record contains no hint of who quickly acted to modify Nicaraguan
birth records after the Roper or why they did so only then.
28 / 31
Tercero’s initial invocation of the Roper decision did not mention any rectification of an
earlier certificate. Only when Respondent challenged the source of that exhibit did the story of a
dead older brother born on the same day three years earlier begin to unfold. Even then, the story
comes before this Court only through hearsay declarations from Villanueva and unauthenticated
declarations from family members. Allegations without a strong evidentiary foundation do not
amount to clear and convincing evidence that would undercut well-supported state findings.
Tercero’s successive habeas application did not include those documents or any argument
relating to an older brother. Only Respondent’s filings put that information before the state
courts. Tercero now faults the state courts for not reconciling those declarations with its factual
determination, yet he never explained their contents to the state courts.17 Notwithstanding the
fact that the state courts did not explicitly mention the affidavits secured by Villanueva, the state
habeas decision necessarily implies that the story they told was not credible, or at least less
credible than Tercero’s constant reliance on an earlier birth date.
The AEDPA affords
significant deference to the state habeas determination, and Tercero’s federal arguments do not
undercut the integrity of its reasoning.
Importantly, Tercero’s pleadings never explain how he came to confuse himself with that
mysterious sibling or why his entire life he relied on his brother’s date of birth.18 Tercero has
The differences between the trial testimony and the unverified declarations go beyond merely establishing the
date of Tercero’s birth. For instance, when ordering the parties to return to state court the Court observed: “The
testimony and evidence at trial, as well as the new affidavits, give widely varying accounts of Tercero’s parentage.
The failure to identify his correct father has muddied the accounts of two sons named Bernardo Aban Tercero and
raises credibility questions.” (Instrument No. 32 at 7-9). Tercero’s mother testified at trial that she never married
Tercero’s father because he was already married. Tr. Vol. 23 at 191. Tercero’s uncle verified that story. Tr. Vol.
23 at 197. Tercero’s mother says in her declaration, however, that “she married at very young age” but her
“husband abandoned” her when she was “pregnant with [her] first child in 1976.” (Instrument No. 31, Exhibit 3). A
neighbor, however, remembered when “she was pregnant with her second son in 1979” that “[h]er husband had left
her and returned when he heard she was pregnant,” but “left after [the baby] was born.” (Instrument No. 31, Exhibit
E). Tercero has never explained the difference between these accounts.
Only a document purporting to be an affidavit from Tercero’s grandmother explains why he claimed to be
older. (Instrument No. 61, Exhibit 2). This document is of questionable origin and has not been authenticated.
29 / 31
never established why he continually relied on the earlier birth date, both when in the United
States and after returning to Nicaragua. His consistent reliance on the earlier date casts a long
shadow over the information collected by Villanueva.
The suspicious timing of Tercero’s Roper claim, the problematic and evolving tale of his
alleged older sibling, the weak evidentiary foundation for his arguments, and the pervasive and
consistent pre-Roper information makes this not a case where “a reasonable factfinder must
conclude” that the state court’s determination of the facts was unreasonable. Rice, 546 U.S. at
341 (emphasis added).
This Court agrees with the state court that “in light of the ample
documentation of and [Tercero’s] prior continual assertion of a birthdate establishing that he was
well over the age of eighteen at the time of the offense,” the “alleged birth record . . . asserting a
birthdate of August 20,1979” is “unpersuasive and incredible.” Successive State Habeas Record
at 352. Tercero has not shown that the state habeas process “resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). The Court will deny Tercero’s Roper claim.
CERTFICATE OF APPEALABILITY
The AEDPA prevents appellate review of a habeas petition unless the district or circuit
courts certify specific issues for appeal. See 28 U.S.C. § 2253(c); Fed. R. App. Pro. Rule 22(b).
Tercero has not yet requested that this Court grant him a Certificate of Appealability (“COA”),
though this Court can consider the issue sua sponte. See Alexander v. Johnson, 211 F.3d 895,
898 (5th Cir. 2000). A court may only issue a COA when “the applicant has made a substantial
(Instrument No. 48). Tercero’s grandmother allegedly avers that, after Tercero came to the United States in 1994,
he had difficulty securing work because of his age. His grandmother allegedly sent him a rectified copy of his older
brother’s birth certificate that she secured in Posoltega. She does not explain, however, why he relied on that earlier
birthdate after he returned to Nicaragua. This Court cannot consider the substance of that document under
Pinholster because Tercero has never presented it to the state courts.
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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
The application of the AEDPA in this case is clear and conclusively bars relief. Under
the appropriate standard, Tercero has not shown that this Court should authorize appellate
consideration of any claim. This Court will not certify any issue for review by the Fifth Circuit.
Tercero has not shown an entitlement to federal habeas relief. This Court DENIES
Tercero’s petition and DISMISSES this case WITH PREJUDICE.
No Certificate of
Appealability will issue in this case.
SIGNED at Houston, Texas, this 7th day of February, 2013.
UNITED STATES DISTRICT JUDGE
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