Case: 13-70010        Document: 00512476059   Page: 1   Date Filed: 12/18/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                    FILED
                                                                December 18, 2013

                                    No. 13-70010                   Lyle W. Cayce
                                                                        Clerk

BERNARDO ABAN TERCERO

                                             Petitioner - Appellant
v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,
Correctional Institutions Division

                                             Respondent - Appellee



                    Appeal from the United States District Court
                         for the Southern District of Texas


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      A Texas jury sentenced Bernardo Aban Tercero to death for a murder
during the course of a robbery. Tercero challenges his capital sentence in federal
court, claiming that he is exempt from execution pursuant to Roper v. Simmons.1
The district court denied habeas relief and Tercero now seeks a Certificate of
Appealability (“COA”). We deny Tercero’s application.




      1
          

(2005).
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                                         No. 13-70010

                                                I
       On March 31, 1997, Tercero and an accomplice forced their way into the
back door of a dry-cleaning establishment.2 While his accomplice held the
employees at gunpoint in the back of the store, Tercero went to the front of the
store.3 There, Tercero fought a customer, Robert Berger. In the struggle,
Tercero shot and killed Berger, in front of Berger’s three year old daughter.4
Tercero and his accomplice then fled with two cash registers.5
       After a several-month investigation, Texas charged Tercero with capital
murder committed during the course of a robbery. By then, Tercero had fled the
United States to Nicaragua, his country of origin. While in Nicaragua, Tercero
is alleged to have been involved in a series of violent crimes, including several
robberies, shootings, and a kidnapping.6 Soon thereafter, the United States
obtained a federal warrant for Tercero based on his flight to avoid prosecution.
Tercero was arrested upon his re-entry into the United States two years later.
       At trial, Tercero’s defense focused on a lack of a specific intent to kill.
Although he acknowledged that he shot Berger, Tercero testified that Berger
tried to grab the gun from him and, in the course of the ensuing struggle, he
accidently shot Berger. Having conceded guilt on the aggravated robbery,
Tercero argued to the jury that he should be convicted of felony murder, rather
than capital murder.7


       2
           Tercero v. Texas, No. 73,992, at *2 (Tex. Crim. App. Oct. 18, 2002) (unpublished).
       3
           

       5
           

at *4. More specifically, while in Nicaragua, Tercero is alleged to have kidnapped
a four-year-old boy, shot a store owner, and shot at pursuing police officers. 

Tercero v. Thaler, No. 4:06cv3384, 

at *1 (S.D. Tex. Feb. 7, 2013).

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      The State presented witnesses who contradicted Tercero’s version of the
facts, including one witness who testified that Tercero initially assaulted Berger
and another who testified that Tercero said he had shot Berger because Berger
made him angry and could identify him.
      The trial court instructed the jury to consider the lesser-included offenses
of felony murder and aggravated robbery. The jury convicted Tercero of capital
murder. A separate penalty phase hearing followed. Under controlling Texas
law at the time, the jury had only two sentencing options for a capital murder
conviction: the death penalty or life with the possibility of parole after 40 years.
The State presented substantial evidence of Tercero’s criminal history, including
his two prior domestic convictions for theft and his string of violent crimes in
Nicaragua. Additionally, the State focused on the brutality of Tercero’s murder
of Berger.
      Tercero presented eight witnesses, including: Tercero’s family members
from Nicaragua; a jail employee; and, a jail chaplain. Tercero’s family members
testified that he had a good general character and that they believed he was
capable of rehabilitation. The jail employee testified that Tercero had been
peaceful and non-violent while awaiting trial. The jail chaplain testified that
Tercero had demonstrated remorse for his crimes and was seeking a relationship
with God.
       The jury was instructed to answer two special questions, addressing (i)
whether Tercero presented a continuing threat to society and (ii) whether taking
into account all of the evidence—including the circumstances of the offense,
Tercero’s character and background, and Tecero’s moral culpability—there were
sufficient mitigating circumstances to warrant the imposition of life
imprisonment instead of the death penalty. The jury answered yes to the first
question and no to the second. Accordingly, the trial court imposed the death
sentence.

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      Soon thereafter, Tercero sought direct review on six points of error. The
Texas Court of Criminal Appeals (“CCA”) affirmed his conviction and sentence.
While this direct appeal was pending, Tercero filed his first state application for
habeas corpus relief.      Two years later, Tercero filed, pro se, a purported
amendment to his habeas application.
      The state habeas trial court adopted the State’s proposed findings of fact
and conclusions of law, and recommended that the CCA deny relief. The CCA
adopted this recommendation and denied relief. In addition, the CCA treated
the pro se amendment as a subsequent application, and dismissed it as an abuse
of the writ because it failed to satisfy one of the enumerated exceptions to
Texas’s bar on successive petitions.
      On October 24, 2006, Tercero filed a timely pro se federal habeas petition.
The district court appointed counsel who subsequently filed an amended
petition, adopting the pro se petition and adding additional grounds for relief.
Included among the various grounds for relief was the Roper v. Simmons8 claim
at issue here, wherein Tercero claims that he is ineligible for the death penalty
because he was only 17 years old when he committed the murder. This claim,
as well as several others, not at issue here, had not been presented to the state
courts. The district court stayed the federal habeas action to give Tercero the
opportunity to exhaust these new claims in the state courts.
      Following the filing of a successive state habeas application raising only
the Roper claim, the CCA granted leave to proceed with the successive habeas
application and remanded the matter to the state trial court.
      In his successive state habeas application, Tercero included two pieces of
evidence in support of his Roper claim: (i) a birth certificate purporting to show



      8
         

(2005) (holding that defendants under the age of 18 at the time of a
capital crime are categorically excluded from the death penalty).

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an August 20, 1979 date of birth for Tercero9 and (ii) transcript from his mother’s
trial testimony.10 In its response, the State included the entire record that had
been developed in the district court prior to the stay. This included evidence
filed by both the State and Tercero. First, this included testimony and evidence
from Tercero’s original trial, including: (i) a translated birth certificate from
Posoltega, Nicaragua, showing that Tercero was born on August 20, 1977;11 (ii)
a Nicaraguan police report that listed Tercero’s age as 22 when he was arrested
in August, 1998;12 (iii) testimony from family members about Tercero’s age that
suggested that he was over the age of 18 at the time of the murder;13 (iv)
Tercero’s testimony that he came to the United States in 1993 when he was 17;14
and, (v) Tercero’s testimony that he was 24 years old at the time of trial in
October 2000.15 Second, it contained evidence the State obtained with the
assistance of the Fraud Prevention Unit at the U.S. Embassy in Nicaragua,
including: (i) a Nicaraguan certificate indicating that the 1979 birth certificate
was modified on October 20, 2006;16 (ii) a second Nicaraguan birth certificate
showing a August 20, 1976, birth date;17 (iii) a document created in July 14,

      9
        Supplemental State Habeas Record at 11. A birthdate of August 20, 1979 would make
Tercero 17 years old when he committed the murder.
      10
         

This transcript was offered to show that Tercero’s parents were the
same as those listed on the 1979 birth certificate.
      11
           Trial Transcript, Vol. 27, DX-3.
      12
           

Tercero, 

at *8 n.12 (cataloging testimony of Tercero’s family
members).
      14
           Trial Transcript Vol. 19 at 19, 72.
      15
           

      16
           R 231.
      17
           R 229.

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2006, reflecting that a Nicaraguan judge ordered the inscription on the 1979
birth certificate to be changed to indicate an inscription date of January 7, 1980
and a birth date of August 20, 1979.18 Third, the record contained the affidavit
of Tercero’s investigator Norma Villanueva, which included undated and
unnotarized declarations from family members and friends in Nicaragua, who
alleged (i) that Tercero’s mother had an older son named Bernardo Aban Tercero
born on August 20, 1976, who died by scorpion bite when he was two years old,
and (ii) that Tercero was born on August 20, 1979, and given the same name as
his older brother.19 In addition to this evidence from the district court record,
the State also submitted the following evidence to the state habeas court: (i)
Tercero used a birth certificate showing a birth date of August 20, 1977 when he
obtained a Texas identification card in 1994;20 (ii) Tercero’s criminal history
records indicate a birth date of August 20, 1976 or 1977;21 (iii) when Tercero was
previously arrested in Harris County, he gave a false name, but a birth date of
August 20, 1977;22 (iv) the United States Immigration and Naturalization
Service charged Tercero with unlawful entry in 1996 and 1999, using birth dates
of August 20, 1976 and 1977;23 (v) arrest records in Hidalgo County, Texas that
included a birth date of August 20, 1976; and, (vi) an FBI report stating that




      18
           R 233.
      19
         Supplement State Habeas Record at 202-20. In addition, Ms. Villanueva alleges in
her affidavit that Tercero’s parents never registered his older brother’s death and the
graveyard in which the older brother was buried was destroyed by a mudslide caused by
Hurricane Mitch.
      20
           

      21
           

      22
           

      23
           

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                                      No. 13-70010

during a August 26, 1999 interview with an FBI special agent, Tercero stated
that his birth date was August 20, 1976.24
      After considering the parties’ paper submissions, and without a hearing,
the state trial court adopted the State’s proposed findings of fact and conclusions
of law and recommended that the petition be denied.            The CCA adopted the
state trial court’s recommendation, finding that Tercero “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,” and denied the petition.25
      Tercero filed a second amended federal habeas petition in the district court
that adopted his prior arguments and again sought relief on his Roper claim.
The district court held that the state habeas court’s adjudication of the Roper
claim was an adjudication of the merits and evaluated the state’s decision under
the deferential lens of 28 U.S.C. § 2254. Applying this standard, the district
court concluded that the petitioner failed to show that a “reasonable factfinder
must conclude that the state court’s determination of the facts was
unreasonable.”26 Accordingly, the district court denied Tercero’s petition and
declined to issue a COA.
                                             II
      Tercero now seeks a COA solely on the Roper claim. Tercero argues (i)
that the state habeas court’s decision was not an “adjudication on the merits”
under 28 U.S.C. § 2254(d), and (ii) that even if it was an adjudication on the
merits, the state habeas court’s decision was an “unreasonable determination of
the facts in light of the evidence presented.” The State disagrees, arguing (i)



      24
           

      25
         Ex parte Tercero, No. WR-62593-03, 

(Tex. Crim. App. Mar. 3, 2010)
(unpublished).
      26
           Tercero, 

at *17.

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that the state habeas court’s decision was an adjudication on the merits, and (ii)
that the state decision was a reasonable determination of the facts in light of the
evidence presented. Accordingly, the State urges that a COA should not issue.
       To appeal, a § 2254 petitioner must first obtain a COA.27 A COA should
issue where a petitioner makes “a substantial showing of the denial of a
constitutional right.”28 Where, as here,29 the district court “has rejected the
constitutional claims on the merits,” the petitioner must demonstrate “that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.”30 Although the “question of whether a COA should
issue is a threshold inquiry that requires an overview of the claims in the habeas
petition and a general assessment of their merits,” a full consideration of the
merits is neither warranted nor permitted.31 Although the nature of a death
penalty case “is not itself sufficient to warrant the issuance of a COA,” “in a




       27
            See 28 U.S.C. § 2253(c)(1)(A).
       28
            28 U.S.C. § 2253(c)(2).
       29
           Tercero argues, without legal or factual support, that the district court ruled on a
procedural basis. A review of the district court’s memorandum and order makes clear that the
district court ruled on the merits. In that memorandum and order, the district court held that
“[t]his 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. . . . 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. . . . The Court will deny
Tercero’s Roper claim.” Tercero, 

at *17 (internal quotation marks and
citations omitted).
       30
            Slack v. McDaniel, 

, 484 (2000).
       31
         Kunkle v. Dretke, 

, 985 (5th Cir. 2003) (quoting Miller-El v. Cockrell, 

, 336 (2003)) (internal quotation marks omitted).

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                                          No. 13-70010

death penalty case ‘any doubts as to whether a COA should issue must be
resolved in [the petitioner’s] favor.’”32
                                              III
       We first resolve Tercero’s claim that the district court improperly applied
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) deference to
the CCA’s decision on the Roper claim. Tercero argues that because the state
court did not hold an evidentiary hearing, the decision of the state habeas court
does not constitute an adjudication on the merits under § 2254(d), and
accordingly, should not be accorded any deference.
       We are mindful that at the COA stage, we must ask “whether the District
Court’s application of AEDPA deference . . . was debatable among jurists of
reason.”33 Typically, AEDPA mandates deference to state court proceedings and
it is “axiomatic that infirmities in state habeas proceedings do not constitute
grounds for federal habeas relief.”34 Nonetheless, in the context of Atkins v.
Virginia,35 we explained that where there is “a significant substantive liberty
interest [at stake],” that liberty interest “entitles the petitioner to a set of core
procedural due process protections: the opportunity to develop and be heard on
his claim that he is ineligible for the death penalty.”36 And there is no sound
basis for concluding that such protections do not extend to other instances, such
as the Roper claim at issue here, where a petitioner claims to be ineligible for the


       32
        Ramirez v. Dretke, 

, 694 (5th Cir. 2005) (quoting Hernandez v. Johnson,

, 248 (5th Cir. 2000)).
       33
            

.
       34
        Moore v. Dretke, 

, 846 (5th Cir. 2004) (per curiam) (internal quotation
marks and citation omitted).
       35
            

(2002).
       36
          Blue v. Thaler, 

, 657 (5th Cir. 2011) (discussing the substantive liberty
interest at stake when petitioner claims to be ineligible for the death penalty under Atkins).

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                                       No. 13-70010

death penalty. Such “core procedural due process protections” do “not mean that
states must give hearings to all persons with” claims that they are ineligible for
the death penalty; indeed, “states retain discretion to set gateways to full
consideration and to define the manner in which habeas petitioners may develop
their claims.”37 But “if a state court dismisses a prima facie valid” claim that
petitioner is ineligible for the death penalty “without having afforded the
petitioner an adequate opportunity to develop the claim, it has run afoul of the
Due Process Clause[.]”38 Importantly, petitioners are not guaranteed evidentiary
hearings because “[d]ue process does not require a full trial on the merits”;
instead, petitioners are guaranteed only the “opportunity to be heard.”39 In other
words, the state court’s decision is only deprived “of the deference normally due”
where the state court has failed “to provide [petitioner] with the opportunity to
develop his claims[.]”40
      Tercero claims that the state habeas court denied him an adequate
opportunity to develop his claim because it did not afford him an evidentiary
hearing. The district court rejected this argument, explaining that:
      [T]he state court afforded Tercero all the process he was due. . . .
      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


      37
           

      39
           Rivera v. Quarterman, 

, 358 (5th Cir. 2007).
      40
           

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                                           No. 13-70010

      needed airing in a state hearing. While asking the state courts to
      provide resources to establish his claims, Tercero never gave the
      state courts an indication that he wished to resolve inconsistences
      between the various birth certificates and the unusual story about
      his older brother. The State courts gave Tercero an opportunity to
      be heard, and he chose to limit what the courts would consider.41
      Thus, the district court found that although no evidentiary hearing was
held, the state court provided Tercero with a full opportunity to be heard. In this
regard, the present case is readily distinguishable from Winston v. Pearson,42 the
principal case on which Tercero relies. There, the Fourth Circuit re-affirmed its
prior decision that the Virginia state court’s decision was not an adjudication of
the merits where it had “denied, without explanation, [a] motion for discovery
and an evidentiary hearing to further develop the factual basis of his claims.”43In
contrast, Tercero never requested an evidentiary hearing in the state court, and,
in any event, had already substantially developed his claim in the district court
prior to remand. The state habeas courts gave Tercero the “opportunity to be
heard.” Accordingly, we hold that reasonable jurists would not find debatable
the district court’s conclusion that the state habeas court adjudication was an
adjudication on the merits that warrants AEDPA deference.
                                               IV
      Tercero argues that even if the state habeas court decision is an
adjudication on the merits, it was an unreasonable determination of the facts in
light of the evidence presented in the state habeas proceedings. Tercero argues




      41
           Tercero, 

at *14.
      42
           

(4th Cir. 2012).
      43
           Winston v. Kelly, 

, 548 (4th Cir. 2010).

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that the state habeas court failed to credit the evidence in his favor, and gave too
much credit to the State’s evidence, which he argues is untrustworthy.
       In Roper, the Supreme Court held that juveniles under 18 are categorically
excluded from the death penalty.44 As the Court explained, 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.”45 Accordingly, to prevail on a Roper claim, a petitioner must show that
he was under the age of 18 at the time of the commission of the death eligible
crime.46
       We remain cognizant of the deferential standards imposed by AEDPA.
Under § 2254(d), the district court may grant relief “only if it determines that
the state court’s adjudication ‘resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court,’ or that the state court’s adjudication of the
claim ‘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.’”47
Moreover, under the § 2254(e)(1), the district court “was obliged to presume that




       

.
       45
            

       46
          Not surprisingly, there is a dearth of case law on Roper claims. A brief review of
relevant circuit cases makes clear that Texas commuted the death sentences of petitioners who
were excluded from the death penalty by Roper. See, e.g., Dickens v. Dretke, 136 F.App’x 675,
675-76 (5th Cir. 2005) (“In light of the United States Supreme Court’s recent decision in Roper
v. Simmons, Texas Governor Rick Perry has commuted Dickens’ death sentence to life
imprisonment.”); Jones v. Dretke, 137 F.App’x 718 (5th Cir. 2005) (same); Cobb v. Dretke, 138
F.App’x 702 (5th Cir. 2005) (same).
       47
            

(quoting 28 U.S.C. § 2254(d)(1) and (2)).

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                                       No. 13-70010

the [CCA’s] factual findings were correct unless [petitioner] furnished ‘clear and
convincing evidence’ otherwise.”48
      Applying these standards, the district court denied Tercero’s Roper claim.
Looking at the full record before the state habeas court, the district court
explained:
      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. 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 unreasonable. 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.49
      We agree. In essence, Tercero asks that we ignore the substantial record
evidence in this case that predates Roper, and to instead credit the suspect
evidence that was unearthed shortly after the Roper opinion issued. It is
uncontroverted fact that for over a decade, Tercero consistently presented
himself as having been born on August 20, 1976 or 1977. This is supported by
his own testimony and his family’s testimony at trial, as well as his arrest and


      48
           

at *17 (internal quotation marks and citations omitted).

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                                     No. 13-70010

immigration records. Given the substantial evidence corroborating Tercero’s
earlier birthdate and the incredible nature of Tercero’s evidence to the contrary,
we hold that no reasonable jurist would find debatable the district court’s
decision that Tercero failed to show 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.”50
                                          V
      For these reasons, we DENY Tercero’s application.




      50
           28 U.S.C. § 2254(d)(2).

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