Bernardo Tercero v. William Stephens, Director
2013 U.S. App. LEXIS 25154
| 5th Cir. | 2013Background
- In 1997 Bernardo Aban Tercero entered a dry-cleaning store during a robbery and shot customer Robert Berger, who died; Tercero fled to Nicaragua and later re-entered the U.S. and was arrested.
- Tercero was convicted of capital murder in Texas; jury found he was a continuing threat and rejected mitigation, and he was sentenced to death.
- After Roper v. Simmons (ban on executing persons under 18 at the time of the crime), Tercero filed successive state habeas relief claiming he was 17 when the crime occurred (born Aug. 20, 1979).
- State courts considered competing documentary and testimonial evidence (multiple Nicaraguan birth certificates with differing years, immigration and arrest records showing 1976–1977 birth years, trial testimony indicating older age, and later-developing statements/evidence supporting 1979). State habeas court denied the Roper claim.
- The federal district court applied AEDPA deference to the state-court factual findings and denied habeas relief; Tercero sought a Certificate of Appealability (COA) on his Roper claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the state habeas denial was an adjudication on the merits for AEDPA purposes | Tercero: no evidentiary hearing was held, so state decision shouldn’t get §2254(d) deference | State: state gave opportunity to be heard and allowed successive petition; decision is an adjudication on the merits | Court: state process afforded opportunity to be heard; adjudication on the merits warranted AEDPA deference |
| Whether the state court made an unreasonable factual determination about Tercero's age | Tercero: later-discovered 1979 birth record and supporting declarations show he was under 18 at offense | State: extensive and consistent pre-Roper records and testimony (1976–1977 dates) make the 1979 record unreliable | Court: reasonable jurists would not find the state-court factual finding unreasonable; COA denied |
| Whether due process required an evidentiary hearing in state court to resolve Roper claim | Tercero: core liberty interest (death eligibility) requires opportunity to develop claim, including hearing | State: no hearing required; state set procedural gateways and allowed submissions | Court: due process requires opportunity to be heard, not an automatic evidentiary hearing; Tercero never requested a hearing and had developed evidence previously |
| Whether petitioner overcame AEDPA's presumption of correctness for state factual findings | Tercero: submitted evidence purportedly rebutting state findings | State: petitioner failed to present clear and convincing evidence to overcome presumption | Court: petitioner did not meet the clear-and-convincing standard; state findings stand |
Key Cases Cited
- Roper v. Simmons, 543 U.S. 551 (2005) (juveniles under 18 categorically ineligible for death penalty)
- Atkins v. Virginia, 536 U.S. 304 (2002) (identifies core due process protections when petitioner claims categorical ineligibility from death penalty)
- Miller-El v. Cockrell, 537 U.S. 322 (2003) (standards for COA and review of habeas claims)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standard for issuance of COA when claim rejected on merits)
- Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007) (due process requires opportunity to be heard to develop Atkins-type claims)
- Blue v. Thaler, 665 F.3d 647 (5th Cir. 2011) (discussing liberty interest and procedural protections for death-eligibility claims)
- Ramirez v. Dretke, 398 F.3d 691 (5th Cir. 2005) (AEDPA deference standards)
- Moore v. Dretke, 369 F.3d 844 (5th Cir. 2004) (state habeas infirmities do not automatically warrant federal relief)
- Winston v. Pearson, 683 F.3d 489 (4th Cir. 2012) (distinguishes denials that refused discovery/hearings from adjudications on the merits)