Background
Richard Anthony Herod was convicted in Texas state court in two thousand and twelve of aggravated sexual assault and aggravated robbery. At trial, a state expert testified that Herod could not be excluded as a contributor to a DNA mixture found on a white t-shirt used to blindfold a victim. Years later, the Texas Department of Public Safety issued a supplementary report stating Herod was excluded under updated protocols. The district court granted federal habeas relief under the Antiterrorism and Effective Death Penalty Act, finding constitutional errors under Brady v. Maryland and Napue v. Illinois. The state appealed, arguing the claims were procedurally defaulted and lacked prejudice.
The court’s reasoning
The Fifth Circuit concluded that Herod’s claims were procedurally defaulted because the Texas Court of Criminal Appeals dismissed his second habeas petition on state procedural grounds. While the government conceded cause, the court found Herod failed to demonstrate prejudice. The court reviewed the trial evidence collectively and determined that the allegedly suppressed evidence and false testimony did not undermine confidence in the verdict. The jury had heard defense expert testimony casting doubt on the DNA inclusion and the defense argued the statistical probability of a match was high. Other evidence, including victim identification, witness testimony, and cell phone records, tied Herod to the crime. The court held that the DNA evidence had limited import and did not infect the entire trial with error. A concurring judge added that one of the Brady claims would be barred by Teague v. Lane because it would require a new constitutional rule not dictated by precedent existing when Herod’s conviction became final.
What it means going forward
The decision reinstates Herod’s state court conviction and sentence, remanding the case for proceedings on the remaining claims in his habeas petition that were not addressed by the procedural default ruling.