Richard Vasquez v. Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division

To date, no court has reviewed the merits of Petitioner’s claim that, when his trial lawyers failed to investigate and expose a fatal flaw in the most critical evidence against him, he was denied his Sixth Amendment right to the effective assistance of counsel. The Fifth Circuit foreclosed any review of this claim based on its reading of a “due diligence” requirement of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) applicable to “successive” applications for habeas relief. The Fifth Circuit construed the AEDPA’s due-diligence test to require the imputation to Petitioner of all information that a reasonable attorney, by the relevant date, could have discovered, even though Petitioner’s actual attorneys engaged in egregious misconduct that prevented Petitioner from discovering and asserting the claim. In urging that result, the State of Texas effectively admitted that it was aware at the time of trial that the evidence at issue was false yet failed to disclose that fact to Petitioner. The District Attorney whose office procured Petitioner’s conviction agrees that he is entitled to relief, but the courts below gave no deference to that position. The questions presented are: 1. Does 28 U.S.C. § 2244(b)(2)(B)(i) impose a “reasonable attorney” or a “reasonable applicant” test for due diligence? If the former, are there exceptions to account for egregious misconduct by an applicant’s lawyer?