396
Opinion of the Court
petition, again challenging the identifications offered against him at trial. This petition was denied, see 904 F. 2d 944 (CA5), and we again denied certiorari, 498 U. S. 925 (1990).
Petitioner next returned to state court and filed a second habeas petition, raising, among other things, a claim of "actual innocence" based on newly discovered evidence. In support of this claim petitioner presented the affidavits of Hector Villarreal, an attorney who had represented petitioner's brother, Raul Herrera, Sr., and of Juan Franco Palacious, one of Raul, Senior's former cellmates. Both individuals claimed that Raul, Senior, who died in 1984, had told them that he—and not petitioner—had killed Officers Rucker and Carrisalez.2 The State District Court denied this application, finding that "no evidence at trial remotely suggest[ed] that anyone other than [petitioner] committed the offense." Ex parte Herrera, No. 81-CR-672-C (Tex. 197th Jud. Dist., Jan. 14, 1991), ¶ 35. The Texas Court of Criminal Appeals affirmed, Ex parte Herrera, 819 S. W. 2d 528 (1991), and we denied certiorari, Herrera v. Texas, 502 U. S. 1085 (1992).
In February 1992, petitioner lodged the instant habeas petition—his second—in federal court, alleging, among other things, that he is innocent of the murders of Rucker and Carrisalez, and that his execution would thus violate the Eighth
2 Villarreal's affidavit is dated December 11, 1990. He attested that while he was representing Raul, Senior, on a charge of attempted murder in 1984, Raul, Senior, had told him that he, petitioner, their father, Officer Rucker, and the Hidalgo County Sheriff were involved in a drug-trafficking scheme; that he was the one who had shot Officers Rucker and Carrisalez; that he did not tell anyone about this because he thought petitioner would be acquitted; and that after petitioner was convicted and sentenced to death, he began blackmailing the Hidalgo County Sheriff. According to Villarreal, Raul, Senior, was killed by Jose Lopez, who worked with the sheriff on drug-trafficking matters and was present when Raul, Senior, murdered Rucker and Carrisalez, to silence him.
Palacious' affidavit is dated December 10, 1990. He attested that while he and Raul, Senior, shared a cell together in the Hidalgo County jail in 1984, Raul, Senior, told him that he had shot Rucker and Carrisalez.
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