     Case: 09-50659        Document: 00511268754          Page: 1    Date Filed: 10/20/2010




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

                                                  FILED
                                                                             October 20, 2010
                                          No. 09-50659
                                                                               Lyle W. Cayce
                                                                                    Clerk
ALEJANDRO HERNANDEZ

                         Plaintiff-Appellee

v.

JESUS TERRONES, et al.

                         Defendants-Appellants


                       Appeal from the United States District Court
                            for the Western District of Texas
                                USDC No. 3:08-CV-00222


Before JONES, Chief Judge, PRADO, Circuit Judge, and OZERDEN * , District
Judge.
PER CURIAM:**
        Defendants Jesus Terrones, Guillermo Martinez, Arturo Ruiz, Jr., Antonio
Tabullo, Joe Zimmerly, and Pedro Ocegueda take an interlocutory appeal from
the district court’s partial denial of their Motion for Summary Judgment in an
action brought by Plaintiff pursuant to 42 U.S.C. § 1983. They argue that
Plaintiff’s due process claims are time-barred, and that they are otherwise



        *
            District Judge, Southern District of Mississippi, sitting by designation.
       **
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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entitled to qualified immunity on Plaintiff’s § 1983 claims.            We decline to
exercise pendent jurisdiction over Defendants’ statute of limitations defense, and
dismiss this part of the appeal. Because we conclude that Defendants’ actions
did not violate Plaintiff’s clearly established constitutional rights, we reverse the
denial of their motion for qualified immunity, and remand to the district court
for entry of summary judgment in favor of Defendants on Plaintiff’s individual
capacity § 1983 claims against them.
                                I. BACKGROUND
A.      Factual Background
        1.   The Investigation
        The undisputed facts, along with the relevant disputed material facts
resolved in Plaintiff’s favor, establish the following chain of events. On May 11,
1994, the body of Robert Cobb, a homeless Vietnam veteran, was discovered in
a desert area by officers of the El Paso Police Department. Cobb had been
stabbed multiple times, and had suffered blunt force trauma to the head. His
body was found next to his vehicle, a 1986 Pontiac Trans-Am automobile. El
Paso Police Sergeant Pedro Ocegueda named Detective Jesus Terrones as the
case agent to investigate Cobb’s homicide.
        On May 12, 1994, Detectives Terrones and Sal Dominguez 1                 visited
businesses located in a shopping center near the crime scene. The wife of one of
the proprietors they interviewed advised that Augustin Fabio Carreon
(“Carreon”), the stepson of another nearby business owner, was involved in
gangs and was responsible for the graffiti on the back walls of the shopping
center. Terrones inspected the graffiti and discerned the alias “Gopy,” which he
believed to be gang-related.



       1
        Detective Dominguez was sued initially, but was later dismissed without prejudice
from this case on October 27, 2008.

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      On May 13, 1994, Terrones contacted the El Paso Police Department’s
gang unit to see if “Gopy” was a moniker for a known gang member. He received
information that “Gory,” not “Gopy,” was an alias for Robert Reyes Hernandez.
Upon searching the El Paso Police Department’s records management system,
Terrones discovered that Robert Hernandez and Plaintiff Alejandro Hernandez,
who are not related, had been arrested on a prior occasion for attempting to
shoplift a pair of jeans at a Mervyn’s department store. Detectives Terrones and
Dominguez returned to the shopping center later that day, where they were
approached by Roland Echemendia, an employee of a business located there.
Echemendia informed the detectives that he had witnessed Cobb’s murder.
There is evidence that Echemendia had spoken to detectives previously, but had
not mentioned that he had witnessed the murder.
      At approximately 5:30 p.m. that same day, Detectives Guillermo Martinez
and Arturo Ruiz, Jr., transported Echemendia to police headquarters, where he
was interviewed and provided a statement.         Echemendia related that at
approximately 1:30 a.m. on May 11, 1994, he was standing outside the shopping
center when he observed three males standing next to a Trans-Am located
outside a nearby veterinary clinic. One individual was a white male with a
beard and grayish-brown hair, who was wearing a striped square pattern shirt
and blue pants. Echemendia identified the second male as Carreon, whom he
had known for approximately three months, although only by sight. Carreon
was the stepson of one of the owners of a shop located in the shopping center.
Echemendia was unable to identify the third male by name, whom he described
as a Latin male in his early twenties. Echemendia had seen Carreon and the
Latin male together prior to the night of Cobb’s murder. Echemendia provided
a physical description of the Latin male and what he was wearing.
      According to Echemendia, the three men appeared to be engaged in a drug
transaction. He could see that the white male had a black bag filled with

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balloons, which he believed to contain heroin. He could hear Carreon tell the
white male that he did not have money, but to give them the merchandise.
Carreon then pointed to the veterinary clinic and made a gesture as if to say
someone was in the clinic. The white male told the other two men to get into the
Trans-Am. Carreon sat in the front seat while the Latin male sat in the back
seat. There was also a young female present who did not get into the car. The
Trans-Am drove off at a high rate of speed and stopped in the same area where
Echemendia saw the police the next day.
      A short time later, Echemendia heard “moans and groans” coming from
the vicinity of the vehicle. He then saw Carreon and the Latin male running in
the dark.   They ran under a street light, approximately four feet from
Echemendia. Echemendia heard Carreon tell the Latin male “you killed him.”
The Latin male then told Carreon to give him his shirt. The Latin male had
blood on his shirt and on his right hand. Echemendia later identified Carreon
from a single photograph, and then identified Plaintiff from a six-person
photographic lineup as the Latin male who was with Carreon that night.
      That same day, May 13, 1994, police brought Carreon to headquarters,
where Detective Antonio Tabullo interrogated him. Carreon initially maintained
his innocence. Detective Tabullo confronted Carreon with Echemendia’s
accusatory statement, and at approximately 7:40 p.m. on May 13, 1994, Carreon
signed a statement implicating himself and another man by the nickname of
“Guero” in Cobb’s death.    At approximately 11:10 p.m., Carreon identified
Plaintiff from a single photograph as “Guero,” and signed an additional
statement identifying Plaintiff as his accomplice. Carreon later testified, in an
affidavit submitted in connection with Plaintiff’s Response to Defendants’
Motion for Summary Judgment, that Detective Tabullo fabricated this
confession and told Carreon that he would be released if he signed the
statement. According to Carreon, Detective Ruiz placed a single picture of

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Plaintiff in front of him and instructed him that “[t]his is Mr. Hernandez. This
is ‘Guero,’ just sign the back of the picture and we’ll let you go....”
      Earlier that day, May 13, 1994, Sergeant Ocegueda had dispatched
officers, including Detective Joe Zimmerly, to pick up Plaintiff as a suspect in the
murder. Detectives arrived at Plaintiff’s residence, where he lived with his
girlfriend, Laura Cortazar, and her sisters, at approximately 5:45 p.m. When
detectives first arrived, neither Plaintiff nor Cortazar were at home. Cortazar’s
sisters told detectives that Cortazar went to pick up Plaintiff from his place of
employment. The detectives initiated surveillance on the residence. Cortazar
subsequently returned without Plaintiff. She advised detectives where Plaintiff
was employed, and informed them that he would arrive home on foot by 7:00
p.m. A patrol unit went to Plaintiff’s employment, and discovered that it closed
at 5:30 p.m.
      At 9:00 p.m., Detective Zimmerly, among other officers, obtained consent
from Cortazar to search Plaintiff and Cortazar’s bedroom. Detective Zimmerly
discovered a pair of bloodstained boxer shorts in a white grocery bag. The boxers
were taken as evidence. Detective Zimmerly then interviewed Cortazar and
informed her of the investigation. She stated that she and Plaintiff had been at
home together on the night of May 10, 1994, and that she was not aware of
Plaintiff leaving the house at any point that evening.
      At 9:15 p.m., Plaintiff returned to the residence in a tan and brown van,2
and was taken into custody by Detectives Zimmerly, Dominguez, and Martinez.
At 11:30 p.m, Detective Tabullo interviewed Plaintiff, and Detective Zimmerly
advised Plaintiff of the pending charges. Plaintiff told Detective Zimmerly that
this was a case of mistaken identity, that he was at home on the night of May 10,


      2
       Plaintiff’s Second Amended Complaint relates that on the evening of Cobb’s murder,
two women heard noises coming from the desert and saw a tan van pull out of the desert and
speed away.

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1994, and that he did not know Carreon. Both the police reports and Plaintiff’s
Second Amended Complaint indicate that Plaintiff’s arrest occurred after
Echemendia had provided his statement and identified Plaintiff, and after
Carreon had confessed that he and ‘Guero’ were involved in Cobb’s murder.
However, it appears that Plaintiff was arrested before Carreon identified
Plaintiff as ‘Guero’.
      Also on May 13, 1994, Detective Terrones drafted a complaint affidavit to
obtain a warrant for Plaintiff’s arrest. It stated, in part, that:
      probable cause and the facts to support the issuance of an arrest
      warrant are based upon the following: ...A witness has given a
      statement that says that he heard the defendant and co-defendant
      arguing with Cobb. Cobb, the defendant, and co-defendant then got
      into Cobb’s car and went to the desert area which is very close by.
      The witness heard moaning coming from the direction in which
      Cobb and the defendant’s [sic] had gone. A short time later the
      defendant and co-defendant returned, on foot, to the area where the
      witness was and were talking about having done Cobb in.

The complaint affidavit indicated that, in addition to Echemendia’s statement,
it was based upon police reports and Carreon’s statement that Plaintiff had
stabbed Cobb with a pocket knife and struck him on the head with a metal
object.
      In the early morning hours of May 14, 1994, Detectives Terrones and Ruiz
transported Carreon and Plaintiff to municipal court where they appeared before
a magistrate judge. Plaintiff contends that while he was being transported with
Carreon, Carreon recanted his identification of Plaintiff to Detectives Terrones
and Ruiz. According to Plaintiff, Detective Terrones ignored Carreon, while
Detective Ruiz told Carreon that he “can’t change it anymore. That’s something
you’re going to have to tell the judge.” Based upon the complaint affidavit, the
magistrate found probable cause existed for both Plaintiff’s and Carreon’s arrest
and detention.


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      Later that day, Detectives Terrones and Zimmerly picked up Robert
Hernandez as a suspect in the murder. Hernandez had been previously arrested
and booked into the county jail on May 11, 1994, on outstanding felony theft
warrants. Hernandez agreed to an interview with Detectives Terrones and
Zimmerly, and provided an alibi for his whereabouts on the night of May 10,
1994. According to police records, during the interview Hernandez was asked
if he knew Plaintiff. Hernandez stated that he knew Plaintiff, and knew him to
be a violent person who was involved with drugs. In a subsequent affidavit
dated October 16, 2008, which Plaintiff submitted in connection with his
Response to Defendants’ Motion for Summary Judgment in this case, Robert
Hernandez asserted that the detectives partially fabricated the report. He also
testified that he told the detectives during this May 14, 1994, interview that he
“knew both [Plaintiff] and [Carreon] but [he] knew for a fact that [Plaintiff] and
[Carreon] did not know each other.” Assuming Hernandez did in fact make this
statement, Detective Zimmerly did not include it in the police report.
      After the interview with Hernandez, the detectives proceeded to
Hernandez’s parents’ house, where his mother was able to corroborate his alibi.
The detectives searched Hernandez’s room, where they found a pair of shoes
which tested negative for any evidence linking Hernandez to the murder. The
police reports indicate that detectives also checked the clothing and shoes
Hernandez wore at the time he was booked at the county jail on May 11, 1994,
again with negative results.
      Also on May 14, 1994, Sergeant Ocegueda received a telephone call from
Dee “Baby” Stewart, who advised that a man named Brandon Hamilton had
bragged to him about having committed Cobb’s murder. Hamilton was located
and brought to police headquarters that same day for an interview. Hamilton
denied involvement in the murder, but admitted that he had spoken with Cobb
a day or two prior to the murder when Cobb had tried to sell Hamilton some

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items from his car. Hamilton acknowledged that he had touched some of the
items in Cobb’s car, as well as the outside of Cobb’s car on the passenger side.
Police obtained Hamilton’s fingerprints, and released him without taking a
statement. Two days later, police learned that Hamilton’s fingerprints were a
positive match with latent fingerprints, which, according to Plaintiff, were found
on the car.
      Police did not obtain a formal statement from Stewart until May 27, 1994.
According to Stewart, he was in his apartment on the night of Cobb’s murder
when Hamilton, his neighbor, stopped by at approximately 2:15 a.m. Stewart
observed that Hamilton was breathing hard, his shoes were covered in mud, and
his hands and a small pocket knife he was carrying were covered in blood.
Hamilton allegedly told Stewart that he “wasn’t going to believe it, but [he] just
killed somebody.”    Hamilton then related the details of Cobb’s murder to
Stewart, which Plaintiff maintains were corroborated by Cobb’s autopsy and
toxicology reports. According to Plaintiff, Defendants never sought permission
to search Stewart’s apartment for evidence that could substantiate Stewart’s
claims that Hamilton entered his apartment with Cobb’s blood on him.
      A few days later, on June 3, 1994, police arrested Hamilton on an
unrelated theft charge, and Detective Dominguez obtained a formal statement
detailing Hamilton’s encounter with Cobb. According to Hamilton, he went to
Stewart’s house the following Sunday, approximately five days after Cobb’s
murder, with a newspaper. The two discussed the murder, which by then had
been reported in the media. He again denied having committed Cobb’s murder.
Hamilton agreed to provide body fluid and blood samples at a later date. He was
then returned to patrol officers for booking on the theft charge. Plaintiff argues
that Defendants never took any additional action to search Hamilton’s
apartment. The police reports indicate, however, that a week later, on June 10,
1994, Detective Dominguez transported Hamilton to a medical center, where

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Hamilton provided body fluid and blood samples, which were submitted for
testing.
      2.    The Criminal Trial Proceedings
      An examining trial was held on May 24, 1994, to determine whether there
was sufficient probable cause to turn Plaintiff’s case over to the grand jury. At
the outset, the magistrate judge acknowledged that, as he learned through his
discussions with Plaintiff’s criminal defense counsel and the prosecuting
attorney, Plaintiff intended to call Carreon as a witness for the purpose of
repudiating his identification of Plaintiff as a co-participant in the murder.
Carreon invoked his Fifth Amendment right not to testify. Plaintiff’s counsel
brought the court’s attention to the Sixth Amendment right to confront
witnesses, as well as the portion of the complaint affidavit stating that probable
cause to arrest Plaintiff was based in part on the “voluntary statement of the
accused,” Carreon. The magistrate judge assured Plaintiff’s counsel that the
prosecution was “going to have to present some other evidence” aside from the
complaint affidavit, and that if the prosecution did make use of Carreon’s
identification of Plaintiff, then Plaintiff would have a right to confront Carreon.
      In the end, Carreon’s identification of Plaintiff was never introduced at the
examining trial, and Carreon never testified at that proceeding.          Plaintiff
voluntarily testified at the hearing, and claimed that he did not know Carreon.
Based upon Detective Terrones’ testimony describing the crime scene and
Echemendia’s eyewitness testimony, the magistrate judge found that there
existed sufficient probable cause to turn the case over to the grand jury. The
grand jury indicted Plaintiff for Cobb’s murder on June 14, 1994.
      Plaintiff’s criminal trial commenced on October 17, 1994. Carreon again
invoked his Fifth Amendment right not to testify, and his identification of
Plaintiff was never introduced at the trial. Laura Cortazar, Fernando Antonio
Garinian, who was a friend of Carreon, and Plaintiff himself, all testified to the

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effect that Plaintiff and Carreon did not know each other. Echemendia also
testified at the trial consistent with the statement he had given the police. The
jury convicted Plaintiff of Cobb’s murder on October 19, 1994, and he was
sentenced to serve ninety-nine years in prison. After serving nearly thirteen
years of his sentence, Plaintiff obtained habeas corpus relief on grounds of
ineffective assistance of counsel. His conviction was overturned, and all charges
against him were eventually dismissed.
B.      Procedural History
        Plaintiff filed his Complaint in this case on June 20, 2008, against several
El Paso police officers under 42 U.S.C. § 1983, seeking damages for violations of
his Fourteenth Amendment due process rights based upon his allegedly wrongful
arrest, prosecution, and conviction. Plaintiff also asserted claims for conspiracy
under both state law and 42 U.S.C. § 1985, as well as a § 1983 claim against the
City of El Paso.      Plaintiff’s specific § 1983 claims against the individual
Defendants, Detectives Jesus Terrones, Guillermo Martinez, Arturo Ruiz, Jr.,
Antonio Tabullo, Joe Zimmerly, and Sergeant Pedro Ocegueda, were ones for
false arrest, malicious prosecution, illegal detention, and wrongful conviction,
and for constitutional violations under Brady v. Maryland, 373 U.S. 83 (1963).
        Plaintiff argued that Defendants violated his procedural due process rights
by manipulating identification evidence, conducting impermissibly suggestive
identification procedures, manipulating the outcome of the murder investigation,
deliberately failing to investigate, concealing and intentionally failing to recover
and develop materially exculpatory information and evidence, making a false
determination of probable cause, and manipulating eyewitness identification
evidence by use of threats and coercion.        Defendants moved for summary
judgment, on grounds that Plaintiff was judicially estopped from asserting his
claims, that his Fourteenth Amendment due process claims were time-barred,
that Defendants were otherwise entitled to qualified immunity on Plaintiff’s §

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1983 claims, and that Plaintiff had failed to adduce sufficient evidence in
support of his conspiracy claims.
      The district court classified Plaintiff’s claims as ones for employing
impermissibly suggestive identifications, conducting a reckless investigation,
and violating Plaintiff’s rights under Brady. The district court concluded that
these claims were not time-barred, and that Plaintiff was not judicially estopped
from asserting them.      The district court denied qualified immunity to the
individual Defendants on Plaintiff’s reckless investigation claim, on grounds that
Plaintiff had adduced evidence creating fact questions that Defendants had
“hectored” Carreon into identifying Plaintiff as his accomplice, and later ignored
Carreon’s recantation of that identification.      The district court found that
Plaintiff stated a constitutional deprivation based upon an allegedly unduly
suggestive identification procedure employed with Carreon, but granted
qualified immunity on Plaintiff’s claim of impermissibly suggestive identification
as it related to the procedure used in connection with Echemendia’s
identification of Plaintiff. The district court further denied qualified immunity
on Plaintiff’s claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963),
concluding that Defendants had failed to disclose exculpatory evidence. The
district court grounded its denial of qualified immunity on the presence of
material disputes of fact as to Plaintiff’s allegations on these claims. The district
court dismissed Plaintiff’s § 1985 and state law conspiracy claims.
      Defendants now take an interlocutory appeal, arguing that Plaintiff’s due
process claims are time-barred, and that they are otherwise entitled to qualified
immunity on Plaintiff’s remaining § 1983 claims for constitutional violations
associated with: (1) the alleged reckless investigation conducted by Defendants
based upon their “hectoring” Carreon into identifying Plaintiff as an accomplice,
failing to record Robert Hernandez’s statement that Plaintiff and Carreon did
not know each other, and failing to investigate Hamilton as a potential suspect;

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(2) the alleged unduly suggestive identification procedure used with Carreon in
his identification of Plaintiff as an accomplice; and (3) the alleged Brady claims
pertaining to the non-disclosure of Robert Hernandez’s statement, the
“hectoring” of Carreon into confessing and identifying Plaintiff as an accomplice,
and Carreon’s recantation of that identification.
             II. JURISDICTION AND STANDARD OF REVIEW
A.      Jurisdiction
        “District court orders denying summary judgment on the basis of qualified
immunity are immediately appealable under the collateral order doctrine,
notwithstanding their interlocutory character, when based on a conclusion of
law.” Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir. 1997)
(citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). “[W]e are restricted to
determinations of questions of law and legal issues, and we do not consider the
correctness of the plaintiff’s version of the facts.” Id. (quoting Atteberry v.
Nocona Gen. Hosp., 430 F.3d 245, 251-52 (5th Cir. 2005)). We review only
“whether the district court erred in assessing the legal significance of the
conduct that the district court deemed sufficiently supported for purposes of
summary judgment.” Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004); see
also Meadours v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007) (“In other words, we
may only review the district court’s conclusion that issues of fact are material (a
legal question), but we may not review the conclusion that those issues of fact
are genuine (a fact question).”). “Where factual disputes exist in an interlocutory
appeal asserting qualified immunity, we accept the plaintiffs’ version of the facts
as true.” Kinney, 367 F.3d at 348.
B.      Summary Judgment Standard
        Rule 56(c) of the Federal Rules of Civil Procedure states that the judgment
sought shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show

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that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. F ED. R. C IV. P. 56. The purpose of
summary judgment is to isolate and dispose of factually unsupported claims or
defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see also Meyers v.
M/V Eugenio C., 842 F.2d 815, 816 (5th Cir. 1988).
        The mere existence of a disputed factual issue does not foreclose summary
judgment. “A dispute about a material fact is ‘genuine’ if the evidence is such
that a reasonable jury could return a verdict for the non-moving party.” Davis
v. Dallas Area Rapid Transit, 383 F.3d 309, 316 (5th Cir. 2004) (quoting
Hanchey v. Energas Co., 925 F.2d 96, 97 (5th Cir. 1990)). “With regard to
‘materiality,’ only those disputes over facts that might affect the outcome of the
lawsuit under the governing substantive law will preclude summary judgment.”
Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir. 1987). Where “the
summary judgment evidence establishes that one of the essential elements of the
plaintiff’s cause of action does not exist as a matter of law, . . . . all other
contested issues of fact are rendered immaterial.” Topalian v. Ehrman, 954 F.2d
1125, 1138 (5th Cir. 1987).
                                 III. ANALYSIS
A.      Defendants’ Statute of Limitations Defense

        Defendants argue that the district court erred in determining that
Plaintiff’s Fourteenth Amendment due process claims were not barred by the
statute of limitations. Defendants’ theory is that these claims are related to
false arrest claims under the Fourth Amendment, which are subject to a two
year statute of limitations commencing at the time a claimant becomes detained
pursuant to legal process. In Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), the
Supreme Court held that “a district court's denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an appealable ‘final


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decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence
of a final judgment.” Enlow v. Tishomingo Cnty., Miss., 962 F.2d 501, 508 (5th
Cir. 1992). However, “[t]he Supreme Court has been reluctant to endorse the
exercise of pendent appellate jurisdiction over rulings that, while being related
to the denial of qualified immunity, are not themselves independently
appealable prior to judgment.” Cantu v. Rocha, 77 F.3d 795, 805 (5th Cir. 1996)
(citation omitted). Because the denial of a statute of limitations defense is not
immediately appealable, this Court may consider it only if it exercises pendent
jurisdiction. Aldy on Behalf of Aldy v. Valmet Paper Machinery, 74 F.3d 72, 75
(5th Cir. 1996) (“the denial of summary judgment on the grounds of a statute of
limitations is neither a final order. . .nor does it fit within that small category of
claims subject to immediate appeal. . .”).
      “Pendant [sic] appellate jurisdiction is only proper in rare and unique
circumstances where a final appealable order is ‘inextricably intertwined’ with
an unappealable order or where review of the unappealable order is necessary
to ensure meaningful review of the appealable order.” Thornton v. Gen. Motors
Corp., 136 F.3d 450, 453 (5th Cir. 1998). Although we did so in an unpublished
opinion, we have determined on at least one occasion that a statute of limitations
defense is not “inextricably intertwined” with the denial of qualified immunity,
so as to give rise to pendent appellate jurisdiction. Jackson v. Mitchell, 54 Fed.
App’x 794, at *1 (5th Cir. 2002).        Other circuits have reached the same
conclusion. See Bryson v. Gonzales, 534 F.3d 1282, 1285-86 (10th Cir. 2008)
(finding that “timeliness issues” were not “‘inextricably intertwined’ with the
qualified immunity issue nor necessary to ‘meaningfully review’ it.”); Triad
Assoc., Inc. v. Robinson, 10 F.3d 492, 497 n.2 (7th Cir. 1993) (“[W]e do not find
that these collateral issues are ‘inextricably entwined’ with the appealable
qualified immunity inquiry nor that there are ‘compelling reasons’ for not



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deferring the limitations questions until the end of the lawsuit that would justify
our invoking our rarely appropriate pendent appellate jurisdiction.”).
        Based on the foregoing, we conclude that we lack jurisdiction over the
district court’s denial of summary judgment on the statute of limitations defense,
and do not reach the merits of this claim.
B.      Plaintiff’s Individual Capacity § 1983 Claims
        1.    42 U.S.C. § 1983 and Qualified Immunity
        42 U.S.C. § 1983 imposes liability upon any person who, acting under color
of state law, deprives another of federally protected rights. 42 U.S.C. § 1983.
Section 1983 affords a remedy to those who suffer, as a result of state action,
deprivation of rights, privileges, or immunities secured by the Constitution and
the laws of the United States. White v. Thomas, 660 F.2d 680, 683 (5th Cir.
1981). A plaintiff cannot succeed on a § 1983 claim merely by showing any
deprivation of his rights; § 1983 was intended to preserve rights protected by
federal law. Wright v. Collins, 766 F.2d 841, 849 (5th Cir. 1985).
        “Qualified immunity balances two important interests– the need to hold
public officials accountable when they exercise power irresponsibly and the need
to shield officials from harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan, - - U.S - - , 129 S. Ct. 808, 815
(2009). “When a defendant invokes qualified immunity, the burden is on the
plaintiff to demonstrate the inapplicability of the defense.” McClendon v. City
of Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (citing Bazan ex rel. Bazan v.
Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001)). This burden cannot be
discharged by conclusory allegations and assertions. Michalik v. Hermann, 422
F.3d 252, 262 (5th Cir. 2005).
        Evaluating a claim of qualified immunity involves two inquiries: (1)
whether the plaintiff has alleged a violation of a constitutional right; and (2)
whether that right was clearly established at the time of the alleged misconduct.

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Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled in part by Pearson, 129 S.
Ct. 808. “[W]hether an official protected by qualified immunity may be held
personally liable for an allegedly unlawful official action generally turns on the
‘objective legal reasonableness’ of the action, assessed in light of the legal rules
that were ‘clearly established’ at the time it was taken.” Wernecke v. Garcia, 591
F.3d 386, 392 (5th Cir. 2009) (citations omitted).               A defendant will not be
immune if, on an objective basis, it is obvious that no reasonably competent
officer would have concluded that the defendant’s actions were lawful; but if
officers of reasonable competence could disagree on the issue, immunity should
be recognized. Malley v. Briggs, 475 U.S. 335, 341 (1986). It is within the
discretion of the district court to decide which of the two prongs of the qualified
immunity analysis to address first in light of the circumstances of each case.
Pearson, 129 S. Ct. at 818.           Each defendant’s actions must be evaluated
individually in the qualified immunity context.3 Meadours v. Ermel, 483 F.3d
417, 421-22 (5th Cir. 2007).
       “The scope of clearly established law and the objective reasonableness of
those acts of the defendant that the district court found the plaintiff could prove
at trial are legal issues we review de novo.” Thompson v. Upshur Cnty., 245 F.3d
447, 456 (5th Cir. 2001). Where, however, the district court denies a motion for
summary judgment on the basis of qualified immunity simply because “fact
issues” remain, this Court may “either scour the record and determine what
facts the plaintiff may be able to prove at trial and proceed to resolve the legal
issues, or remand so that the trial court can clarify the order.” Id.




       3
        Although courts ought to analyze each defendant’s actions separately to determine the
entitlement to qualified immunity of each, we find it unnecessary to do so in this case because
of our conclusion that none of Plaintiff’s claims are legally cognizable or raise a genuine,
material fact issue which could disentitle any of Defendants, whatever their precise
involvement in the investigation, from qualified immunity.

                                              16
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                                  No. 09-50659

      2.    Defendants are Entitled to Qualified Immunity on Plaintiff’s
            Fourteenth Amendment Claim for Conducting a Reckless
            Investigation
      The district court denied qualified immunity on this claim, reasoning that
an official may be exposed to liability under § 1983 if he deliberately ignores
exonerative evidence or conducts a reckless investigation. Because Plaintiff had
adduced evidence that, if accepted as true, would establish that Carreon was
pressured into implicating Plaintiff as his accomplice, and because there was
evidence that Defendants ignored Carreon’s recantation of his identification of
Plaintiff, the district court concluded that, resolving all factual disputes in
Plaintiff’s favor, he had stated a cognizable claim for a violation of his rights
based on a reckless investigation. At oral argument, the parties disputed
whether there exists in this Circuit a clearly established constitutional right to
be free from a reckless investigation.
      To determine whether a specific claim states the violation of a
constitutional right, we have held that “[s]uch claims of lost constitutional
rights are for violation of rights locatable in constitutional text, and some such
claims may be made under 42 U.S.C. § 1983.” Castellano v. Fragozo, 352 F.3d
939, 953-54 (5th Cir. 2003) (en banc) (finding no freestanding constitutional
right to be free from malicious prosecution). In Sanders v. English, 950 F.2d
1152 (5th Cir. 1992), we recognized that police officers may be liable for illegal
detention under § 1983 for deliberately ignoring exonerative evidence or
conducting a reckless investigation. Sanders, 950 F.2d at 1162. Sanders did
not recognize an independent constitutional claim for being subjected to a
reckless investigation; instead, it acknowledged that conducting a reckless
investigation could support other claims for violations of established
constitutional rights. In that case, we reversed the grant of summary judgment




                                         17
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                                   No. 09-50659

to the defendant officer on plaintiff’s claim for illegal detention, not reckless
investigation. We explained that:

     the plaintiff ha[d] come forward with evidence which, if credited by
     the fact-finder, would establish that the defendant knowingly and
     willfully ignored substantial exculpatory evidence. A fact-finder
     reasonably could conclude that Lt. McCoy deliberately looked the
     other way in the face of exonerative evidence indicating that he had
     arrested the wrong man: three alibi witnesses deemed credible by Lt.
     McCoy, a negative identification by one of the witnesses who helped
     compose the police sketch, and a belated identification by the victim
     under peculiar circumstances. Lt. McCoy’s deliberate failure to
     disclose this undeniably credible and patently exculpatory evidence
     to the prosecuting attorney’s office plainly exposes him to liability
     under § 1983.
Id. at 1162 (citing Geter v. Fortenberry, 882 F.2d 167 (5th Cir. 1989) (Geter II)).
We found that, under the circumstances, “a jury could find that if Lt. McCoy
had disclosed the exculpatory evidence to the prosecuting attorney’s office,
Sanders would have been released and the charges against him dropped long
before they were.” Id. This supported Sanders’ claim, which was one for illegal
detention, not reckless investigation. See id.
      Plaintiff urges that the facts of this case are akin to those in Sanders,
such that Defendants are not entitled to qualified immunity. He contends in his
supplemental brief that “[w]hile Sanders described liability for conducting a
reckless investigation under the rubric of ‘illegal detention,’ this is a distinction
without a difference. Labels do not control.” Indeed, the plaintiff in Sanders
classified one of his causes of action as one for negligent investigation. Id. at
1158 n.10.
      This Court instead characterized Sanders’ claim, based on the facts
alleged in the Complaint and those adduced during discovery, as being “not
merely one for negligent investigation leading up to the arrest; the claim is also
one for illegal detention based on the officers’ deliberate failure to recognize,

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                                         No. 09-50659

investigate, and disclose patently exonerative evidence which surfaced
immediately following the arrest.” Id. (emphasis in original). We did not hold
that the negligent investigation and ignoring of exculpatory evidence in Sanders
were freestanding constitutional violations, rather, they were conduct
supporting Sanders’ claims for false arrest and illegal detention. In sum, we
conclude that there was no freestanding, clearly established constitutional right
to be free from a reckless investigation at the time of the events alleged in the
Complaint.
       Even if we re-characterize this claim as one cognizable under § 1983, such
as for false arrest4 or illegal detention (the rights at issue in Sanders), we
cannot reach the same conclusion Sanders did under the facts of this case, even
resolving those facts in Plaintiff’s favor. In Sanders, we “beg[a]n by observing
that our circuit recognizes causes of action under § 1983 for false arrest, illegal
detention (false imprisonment) and malicious prosecution.”5 Id. at 1159. “These
causes of action implicate the constitutional ‘guarantees of the fourth and

       4
           We assume for purposes of this appeal that any false arrest claim would not be time-
barred.
       5
         In Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc), we later concluded
that “no such freestanding constitutional right to be free from malicious prosecution exists.”
Id. at 945. We held that “causing [criminal] charges to be filed without probable cause will not
without more violate the Constitution.” Id. at 953. However, we noted that “additional
government acts that may attend the initiation of a criminal charge could give rise to claims
of constitutional deprivation.” Id.

       The initiation of criminal charges without probable cause may set in force
       events that run afoul of explicit constitutional protection–the Fourth
       Amendment if the accused is seized and arrested, for example, or other
       constitutionally secured rights if a case is further pursued. Such claims of lost
       constitutional rights are for violation of rights locatable in constitutional text,
       and some such claims may be made under 42 U.S.C. § 1983. Regardless, they
       are not claims for malicious prosecution and labeling them as such only invites
       confusion.

Id. at 953-54; see also Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir. 2009) (citing Castellano
and holding that a malicious prosecution claim is not independently cognizable under § 1983).

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                                  No. 09-50659

fourteenth amendments when the individual complains of an arrest, detention,
and prosecution without probable cause.’” Id.        (emphasis added) (quoting
Thomas v. Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988)).
      In the context of evaluating the existence of probable cause and whether
an officer is entitled qualified immunity, “we embark on a ‘practical, common-
sense [determination] whether given all of the circumstances’ a reasonable
officer could have believed ‘there is a fair probability’ [Plaintiff] committed the
crime charged.” Mendenhall v. Riser, 213 F.3d 226, 231 (5th Cir. 2000) (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983)). In considering the totality of the
circumstances, we disregard any false statements in the affidavit supporting
the warrant which are made knowingly and intentionally, or with reckless
disregard for the truth, and consider omissions that may have been critical to
a determination of probable cause. Hale v. Fish, 899 F.2d 390, 400 & n.3 (5th
Cir. 1990) (citing Franks v. Delaware, 438 U.S. 154 (1978)).
      Based upon the facts of this case, and construing them in Plaintiff’s favor,
Plaintiff is unable to establish a § 1983 claim for false arrest or illegal
detention.   The district court denied qualified immunity on the “reckless
investigation” allegation, on the grounds that there was evidence that
Defendants coerced Carreon into identifying Plaintiff, and then ignored
Carreon’s recantation of that identification. In Mundy v. State of Georgia, 586
F.2d 507 (5th Cir. 1978) (per curiam), we held that impermissibly suggestive
identifications which are used in conjunction with other evidence cannot form
the basis of a § 1983 claim against an officer, where there was ample probable
cause to swear out a warrant for the defendant’s arrest. See id. at 508.
Detective Terrones’ complaint affidavit relied on police reports, a witness
statement (Echemendia), as well as a voluntary statement of the accused
(Carreon). Unlike Sanders, it cannot be said that evidence that Carreon was
pressured into identifying Plaintiff, if made known at the time of the issuance

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                                      No. 09-50659

of the arrest warrant or later disclosed to the district attorney, would have
established that there remained no probable cause for Plaintiff’s arrest,
detention, or prosecution, such that he would have been released. Leaving
aside any misconduct which occurred with respect to Carreon’s identification of
Plaintiff and his later recantation, the record is clear that the magistrate at
Plaintiff’s examining trial was satisfied that Echemendia’s identification
testimony provided a separate and sufficient basis to support a finding of
probable cause.6 Echemendia provided the only identification testimony at the
examining trial, at which Carreon did not testify.
       The record further reflects that both the district attorney and defense
counsel were aware of Carreon’s recantation of Plaintiff’s identification prior to
Plaintiff’s examining trial on May 24, 1994. Because this information was
disclosed, this case is even more dissimilar from Sanders, and Plaintiff cannot
support a false arrest or illegal detention claim based on this evidence. And
unlike Sanders, in which the grand jury refused to indict, Plaintiff here was
indicted.
       Plaintiff maintains, and the district court found, however, that had
Defendants “disclos[ed] [Robert] Hernandez’s complete statement, then the
value of Echemendia’s eyewitness testimony would have been substantially
reduced, if not obliterated.” We must also consider omissions which may have
been critical to a determination of probable cause.
       First, we note that Robert Hernandez’s statement was not obtained until
after Detective Terrones had completed the complaint affidavit to support an
arrest warrant. It was obtained before Plaintiff’s examining trial occurred.
Though Robert Hernandez’s statement might have contradicted Echemendia’s


       6
          The district court determined that the identification procedures used with
Echemendia, the eyewitness, did not violate the Constitution, and granted qualified immunity
as to this claim.

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                                  No. 09-50659

testimony, it did not eliminate it.    Moreover, this purportedly exonerative
evidence pales in comparison to that present in Sanders, where the defendant
officer failed to disclose: (1) that the identifying victim was related to Sanders,
yet was unable to name Sanders as the assailant until he saw him in a packed
courtroom; (2) a negative identification by a witness who helped to compose the
sketch of the robber; and (3) the existence of three credible alibi witnesses, one
of whom was a former police officer. Under the circumstances of this case, a
reasonable officer or magistrate could have believed that there was a fair
probability Plaintiff committed the crime charged, even taking Robert
Hernandez’s statement into account.
      Plaintiff’s contention that qualified immunity should be denied on
grounds that Defendants failed to thoroughly investigate Hamilton as a
potential suspect is similarly unavailing.         The record reflects that the
investigation file, which included both Hamilton’s and Stewart’s statements,
was turned over to the district attorney. It is undisputed that the prosecution
maintained an open file policy, such that this information was available to
Plaintiff’s criminal defense attorney.       Plaintiff cannot argue that the case
against him would have been dismissed any sooner on grounds that the
prosecuting attorney was unaware of this potential suspect. Whatever flaws
there may have been in Defendants’ handling of Hamilton as a potential
suspect, these were disclosed to Plaintiff prior to trial, and they did not alter
Echemendia’s identification. Under these facts, there was probable cause to
both arrest and detain Plaintiff. We cannot say that no objectively reasonable
officer would have concluded that probable cause did not exist.
      In sum, “reckless investigation” was not a clearly established stand alone
constitutional violation at the time of the events in question. Any reliance on
Sanders for this proposition is misplaced. Sanders held that evidence of a
reckless investigation could support cognizable constitutional claims, such as

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                                  No. 09-50659

ones for false arrest or illegal detention, under § 1983.        Even if we re-
characterize Plaintiff’s “reckless investigation” claim as one for illegal
detention, or for some other cognizable constitutional violation, such as false
arrest, because the exonerative evidence at issue would not have eliminated
“the only thread of evidence tying [Plaintiff] to the crime,” Sanders, 950 F.2d at
1164, and because the incriminating evidence which remained was sufficient to
support the existence of probable cause, Plaintiff cannot demonstrate the
violation of his constitutional right to be free from false arrest or illegal
detention. Based on the foregoing, and because there was no clearly established
constitutional right to be free from a reckless investigation at the time of the
events in question, Defendants are entitled to qualified immunity on this claim.

      3.    Defendants are Entitled to Qualified Immunity on Plaintiff’s
            Fourteenth Amendment Claim for Suggestive Identification

      The Second Amended Complaint alleges that Defendants violated
Plaintiff’s Fourteenth Amendment due process rights by “[m]anipulating
identification evidence and conducting irreparably harmful and impermissibly
suggestive identification procedures later presented as evidence against, and
used to convict, the innocent Plaintiff.” The district court denied qualified
immunity on this claim, finding that material fact questions existed as to
whether an unduly suggestive identification procedure was used to induce
Carreon to identify Plaintiff. Defendants argue that the district court erred on
grounds that there can be no Fourteenth Amendment due process violation
where the alleged unduly suggestive identification was not used at trial, and
where there existed an independent basis for a finding of probable cause in the
complaint affidavit, as well as at the examining trial.
      The United States Supreme Court has held that the determination as to
whether a defendant’s Fourteenth Amendment due process rights are violated


                                       23
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                                       No. 09-50659

by the admission of evidence at trial derived from unnecessarily suggestive
identification procedures depends upon the totality of the circumstances
surrounding those procedures. Stovall v. Denno, 388 U.S. 293, 302 (1967),
overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314 (1987). In
Manson v. Brathwaite, 432 U.S. 98 (1977), the Supreme Court described the
standard under the Due Process Clause as one of fairness, and identified the
interest protected in Stovall as evidentiary. Manson, 432 U.S. at 113. The
Court noted that “a suggestive preindictment identification procedure does not
in itself intrude upon a constitutionally protected interest,” id. at 113 n.13, and
held that “reliability is the linchpin” in determining the admissibility of such
identification testimony, id. at 114.             In assessing the reliability of an
identification and evaluating whether there exists a high likelihood of
misidentification, a number of factors should be considered.7 Id. (citing Neil v.
Biggers, 409 U.S. 188, 199-200 (1972)). This analysis is in turn determinative
of whether the evidence should be permitted to go to the jury. See Biggers, 409
U.S. at 201. Both Stovall and Manson reflect “the concern that the jury not
hear eyewitness testimony unless that evidence has aspects of reliability.”
Manson, 432 U.S. at 112 (emphasis added).
       Several circuits have interpreted Stovall and Manson to mean that, in the
context of unduly suggestive lineups, no due process violation occurs unless a
defendant’s right to a fair trial is impaired. See Pace v. City of Des Moines, 201
F.3d 1050, 1055 (8th Cir. 2000); Hensley v. Carey, 818 F.2d 646, 649 (7th Cir.
1987); Antonio v. Moore, 174 Fed. App’x 131, 135-36 (4th Cir. 2006). In Hensley,
the Seventh Circuit concluded that Stovall and Manson, “establish procedural



       7
         These factors “include the opportunity of the witness to view the criminal at the time
of the crime, the witness’ degree of attention, the accuracy of his prior description of the
criminal, the level of certainty demonstrated at the confrontation, and the time between the
crime and the confrontation.” Manson, 432 U.S. at 114.

                                             24
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                                     No. 09-50659

safeguards to insure that only reliable identification evidence is admitted at
trial. Stovall and [Manson] do not establish a right to an impartial lineup as
long as the evidence gained through that lineup is not used at trial.” Hensley,
818 F.2d at 650. Hensley held that “[t]he rule against admission of evidence
from unnecessarily suggestive lineups is a prophylactic rule designed to protect
a core right, that is the right to a fair trial, and it is only the violation of the core
right and not the prophylactic rule that should be actionable under § 1983.” Id.
at 649; see also Pace, 201 F.3d at 1055 (“The jurisprudential doctrine described
in Manson..., against the admission of unduly suggestive lineups is only a
procedural safeguard, and does not establish a constitutional right to be free of
suggestive lineups.”). We find this reasoning persuasive.
       Plaintiff relies on Geter v. Fortenberry, 882 F.2d 167 (5th Cir. 1989) (Geter
II), which found that police employed unduly suggestive identification
procedures where they “insist[ed] that [witnesses] pick an individual from photo
lineups, prodd[ed] the witnesses to select another picture when they had chosen
incorrectly, and bec[ame] hostile. . .when a witness refused to cooperate.” Geter,
882 F.2d at 170. Relying on Geter II, this Court recently concluded in Good v.
Curtis, 601 F.3d 393 (5th Cir. 2010), that “a police officer’s knowing efforts to
secure a false identification by fabricating evidence or otherwise unlawfully
influencing witnesses is not entitled to qualified immunity.” Good, 601 F.3d at
398.
       In Good, we also concluded that “[a] plaintiff need not undertake the
impossible task of satisfying the [Manson] test where an officer’s intentional
conduct was designed to artificially produce precisely the sort of witness
certainty that otherwise justifies the admission of suggestive lineups and the
criminal defendant has been exonerated in the meantime.”                 Id. at p. 401
(emphasis added). In Good, the officer deliberately framed the plaintiff for a
crime he clearly had not committed, as DNA evidence conclusively established

                                           25
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                                     No. 09-50659

that the defendant was not guilty of the crime of which he had been convicted.
Id. at 397, 398. Based upon this conclusive exonerative evidence, any positive
identification of the defendant had to be incorrect. Thus, there was no need to
determine      whether    the   lineup   suffered    from      a   high   “likelihood   of
misidentification,” as required by Manson. Id. at 399.
         However, it is clear from both Geter II and Good, that the improperly
procured identifications at issue were introduced at the respective plaintiffs’
criminal trials in both cases. Such is not the situation here. Geter II and Good
are thus factually distinguishable from the present dispute in this important
respect. We do not read either Geter II or Good as eroding the notion that, in
order for there to be a due process violation in the context of an unduly
suggestive identification procedure, the defendant’s right to a fair trial must be
impaired.
         Turning to the case at bar, it is undisputed that Carreon invoked his Fifth
Amendment right against self-incrimination, and refused to testify at both
Plaintiff’s examining trial and trial. His identification of Plaintiff was not the
sole basis for the probable cause determination in seeking Plaintiff’s arrest and
detention. It was never introduced at either the examining trial or trial, and
did not serve as the basis for his continued detention or eventual conviction at
trial.    Plaintiff’s due process rights were therefore not violated, whether
Carreon’s pretrial identification of Plaintiff was either unduly suggestive or
intentionally manipulated, as the identification was not “clearly critical” to the
probable cause determination supporting Plaintiff’s arrest and detention, nor
was it ever admitted into evidence at trial.
         In 1994, no violation of a clearly established constitutional right occurred
where a defendant was afforded a fair trial not impaired by the admission of
evidence derived from an unduly suggestive identification procedure.
Defendants are entitled to qualified immunity on this claim.

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                                  No. 09-50659

      4.    Defendants are Entitled to Qualified Immunity on Plaintiff’s
            Fourteenth Amendment Claim for Withholding Exculpatory
            Evidence in Violation of Brady v. Maryland, 373 U.S. 83
            (1963)

      Defendants appeal the district court’s determination that Defendants
“cannot avail themselves of qualified immunity because they failed to disclose
Brady exculpatory evidence relating to (1) the lack of association between
Carreon and Plaintiff, (2) the collusive origin of Carreon’s confession and
identification, and (3) Carreon’s presumed recantation.”
      Under Brady v. Maryland, 373 U.S. 83 (1963), the government must
disclose material, exculpatory evidence to a criminal defendant. United States
v. Walters, 351 F.3d 159, 169 (5th Cir. 2003) (citing Brady, 373 U.S. at 87). “A
valid Brady complaint contains three elements: (1) the prosecution must
suppress or withhold evidence, (2) which is favorable, and (3) material to the
defense.” United States v. Lanford, 838 F.2d 1351, 1355 (5th Cir. 1988) (quoting
United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980)). Impeachment as well
as exculpatory evidence fall within Brady’s purview. United States v. Bagley,
473 U.S. 667, 676 (1985).
      “Evidence is not ‘suppressed’ if the defendant ‘knows or should know of
the essential facts that would enable him to take advantage of it.’” United States
v. Runyan, 290 F.3d 223, 246 (5th Cir. 2002) (citing United States v. Shoher, 555
F. Supp. 346, 352 (S.D.N.Y. 1983)); see also United States v. Brown, 628 F.2d
471, 473 (5th Cir. 1980) (“[W]hen information is fully available to a defendant
at the time of trial and his only reason for not obtaining and presenting the
evidence to the Court is his lack of reasonable diligence, the defendant has no
Brady claim.”). With respect to “materiality,” “[t]he evidence is material only
if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A ‘reasonable


                                       27
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                                  No. 09-50659

probability’ is a probability sufficient to undermine confidence in the outcome.”
Bagley, 473 U.S. at 682. “The materiality of Brady material depends almost
entirely on the value of the evidence relative to the other evidence mustered by
the state.” Smith v. Black, 904 F.2d 950, 967 (5th Cir. 1990), vacated, 503 U.S.
930 (1992), abrogated on other grounds, Stringer v. Black, 503 U.S. 222 (1992).
      Defendants argue that in 1994, Brady did not extend to police officers.
They cite Mowbray v. Cameron Cnty., 274 F.3d 269 (5th Cir. 2001), in support
of their position. In Mowbray, officers failed to provide exculpatory evidence to
the defendant’s counsel. Although this Court observed that “our research
reveals, no case extending Brady to police officers...,” we also stated that
“Mowbray does not allege, nor do the facts support a finding, that [the officers]
elicited false evidence and deliberately concealed exculpatory evidence from all
parties, including the prosecution.” Mowbray then cited Geter v. Fortenberry,
849 F.2d 1550 (5th Cir. 1988) (Geter I), which in turn cited Brady, and held
“that a police officer cannot avail himself of a qualified immunity defense if he.
. .deliberately conceals exculpatory evidence, for such activity violates clearly
established constitutional rights.” Geter, 849 F.2d at 1559. Based on the
foregoing, it was clearly established law in 1994 that Brady applied to police
officers on facts such as those presented in this case. We now turn to each of
Plaintiff’s alleged Brady violations.
      a.    The Lack of Association Between Carreon and Plaintiff
      The district court denied qualified immunity on this point on the basis
that there was a question of fact as to whether Robert Hernandez had provided
Detectives Terrones and Zimmerly with a statement that Plaintiff and Carreon
did not know each other, which Zimmerly did not memorialize in his report. In
determining that Hernandez’s statement was material, the district court noted
that “[s]ince there was no physical evidence linking Plaintiff to Cobb’s murder,



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                                  No. 09-50659

the entire criminal case against Plaintiff mainly consisted of Echemendia’s
eyewitness account.” It stated that,
      if Defendants had disclosed Hernandez’s statement that Plantiff and
      Carreon had never met, then Echemendia’s eyewitness statement
      implicating both to Cobb’s murder would have been undermined.
      Moreover, the demise of Echemendia as a credible prosecution
      witness would have done more than just nullify his testimony; it
      would also have served to discredit generally the police methods
      employed in assembling the case against Plaintiff, calling into
      question the veracity of testimony of other prosecution witnesses.

Hernandez v. City of El Paso, 662 F. Supp. 2d 596, 619 (W.D. Tex. 2009).
Defendants argue on appeal that “Terrones and Zimmerly did not conceal
evidence that Alejandro Hernandez and Augustine Carreon did not know each
other because Juan Fernandez, [sic] Antonio Garinian, Laura Cortazar and
Alejandro Hernandez all testified to that fact at the murder trial of Alejandro
Hernandez.” Essentially, Defendants’ argument is that Robert Hernandez’s
testimony was cumulative, such that its non-disclosure did not violate Brady.
Unfortunately, the district court was deprived of the opportunity to address the
question of whether Robert Hernandez’s testimony was cumulative because
Defendants never raised the issue below.         Despite Defendants’ failure to
properly place this issue before the district court, because our review is de novo
we will address it here.
      The failure to disclose evidence which is cumulative does not present a
Brady violation. Allridge v. Scott, 41 F.3d 213, 218 (5th Cir. 1994). Here,
Fernando Antonio Garinian testified at Plaintiff’s trial that he and Carreon
were friends, but that he had never seen Plaintiff before. Laura Cortazar,
Plaintiff’s girlfriend, testified that she did not know Carreon and had only heard
of him in connection with this case. Plaintiff himself testified that he did not
know Carreon.



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                                  No. 09-50659

       By affidavit, Robert Hernandez testified in this case that he “told the
detective that ... I knew both [Plaintiff] and [Carreon] but I knew for a fact that
[Plaintiff] and [Carreon] did not know each other.” This statement is largely
cumulative of the testimony presented at the criminal trial. See Andrews v.
Collins, 21 F.3d 612, 626 & n.29 (5th Cir. 1994) (testimony that is, in the main,
cumulative is not material for purposes of Brady); see also Edmond v. Collins,
8 F.3d 290, 294 (5th Cir. 1993). If this statement could have lent any value to
Plaintiff’s defense, it was at most incremental. Incremental impeachment value
of suppressed evidence, however, does not raise a reasonable probability of a
different result at trial. See Drew v. Collins, 964 F.2d 411, 419-20 (5th Cir.
1992); see also Miller v. Dretke, 431 F.3d 241, 251 (5th Cir. 2005). Because
Plaintiff and two other witnesses did testify at the trial as to the lack of
association between Carreon and Plaintiff, we cannot say that Robert
Hernandez’s testimony raises a reasonable probability of a different result at
Plaintiff’s trial.
       We are not persuaded that Lindsey v. King, 769 F.2d 1034 (5th Cir. 1985),
which was cited below, changes the result. In Lindsey, the plaintiff appealed
the denial of his petition for a writ of habeas corpus, alleging a Brady violation
in connection with his underlying criminal trial. There, the prosecutor failed
to disclose a statement made by an eyewitness shortly after the murder that he
did not see the perpetrator’s face, and would therefore be unable to make a
positive identification. We concluded that the non-disclosed statement would
have “cast serious doubt” on the testimony of that eyewitness, who made a
positive identification of the plaintiff at his criminal trial.      Though the
testimony of a second eyewitness remained untouched by the statement, we
found a Brady violation. We concluded that:
       our experience at the bar has been that positive identification by
       two unshaken witnesses possesses many times the power of such an


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                                  No. 09-50659

      identification by one only, and that the destruction by cross-
      examination of the credibility of one of two crucial witnesses–even
      if the other remains untouched–may have consequences for the case
      extending far beyond the discrediting of his own testimony.

Lindsey, 769 F.2d at 1042. Unlike Robert Hernandez’s statement here, the non-
disclosed statement at issue in Lindsey was not cumulative of other evidence.
Finally, although not dispositive of this issue, we note that Plaintiff’s criminal
defense counsel knew or should have been aware of Robert Hernandez’s identity
prior to the trial based on the district attorney’s open file policy.      Robert
Hernandez was not called to testify as a witness by either side. The record is
silent on what attempts, if any, Plaintiff’s defense counsel made to interview
Robert Hernandez prior to trial. In any case, at a minimum, his identity as a
potential witness was, or should have been, known to Plaintiff.
      In sum, we conclude that no Brady violation occurred with regard to the
alleged non-disclosure of Hernandez’s cumulative statement.
      b.    The Collusive Origin of Carreon’s Confession and Identification
      The district court concluded that non-disclosure of the alleged collusive
origin of Carreon’s confession and identification presented fact questions as to
whether there was a Brady violation. Plaintiff argues that Defendants have not
briefed the issue, and have therefore waived it on appeal. Defendants have,
however, argued that the district court erroneously denied summary judgment
on Plaintiff’s Brady claim.     Where the district court denies a motion for
summary judgment on the basis of qualified immunity because “fact issues”
remain, this Court may “either scour the record and determine what facts the
plaintiff may be able to prove at trial and proceed to resolve the legal issues, or
remand so that the trial court can clarify the order.” Thompson v. Upshur
County, TX, 245 F.3d 447, 456 (5th Cir. 2001). In the interest of judicial
economy, we elect to “scour the record” and address this claim.


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                                   No. 09-50659

      Accepting Plaintiff’s version of the facts as true, the record reflects that
Carreon was strong-armed into identifying Plaintiff as his accomplice. Even if
this information was suppressed, we do not see how its disclosure could have
impacted the result of the criminal proceeding, since it is undisputed that
Carreon did not testify at either Plaintiff’s examining trial or his trial, and that
Carreon’s identification of Plaintiff was never introduced at either proceeding.
In his supplemental brief filed after oral argument, Plaintiff argues that this
evidence is material on grounds that it served as the basis for his conviction.
He maintains that the only reason his photograph was included in the six-
person photo array shown to Echemendia was because Carreon had been earlier
coerced into identifying him as an accomplice. Thus, had he “known about the
misconduct surrounding Carreon’s identification, Echemendia would have had
no credibility as a witness.” We are not persuaded by this reasoning.
       Plaintiff does not argue that Echemendia was coerced into identifying
Plaintiff, but instead argues that his picture would not have been included in
the six-person photo array presented to Echemendia had the misconduct
surrounding Carreon’s identification not occurred. Accepting Plaintiff’s version
of the facts as true, any misconduct in selecting Plaintiff’s photograph for
inclusion in the photo array is insulated by Echemendia’s independent
identification of Plaintiff from the lineup, and does not raise a reasonable
probability of a different outcome at trial.
      Moreover, the district court concluded that the six-person photographic
lineup shown to Echemendia was not impermissibly suggestive, and granted
qualified immunity on this claim. Hernandez, 662 F. Supp. 2d at 611-12. Thus,
the constitutionality of the identification procedures employed in Echemendia’s
identification of Plaintiff are not before us on this appeal, and this Court lacks
jurisdiction to consider them.
      In sum, no Brady violation occurred with respect to this evidence.

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                                 No. 09-50659

      c.   Carreon’s Recantation
      The district court found that the alleged non-disclosure of Carreon’s
recantation of his identification of Plaintiff as his accomplice to Detectives
Terrones and Ruiz would violate Brady. The record reflects, however, that
Plaintiff was present and overheard Carreon’s recantation at the time it was
made. It is also clear that Plaintiff’s criminal defense counsel knew of the
presumed recantation before his trial in October 1994, and at least as early as
May 24, 1994, the date of Plaintiff’s examining trial.
      “Brady claims involve ‘the discovery, after trial of information which had
been known to the prosecution but unknown to the defense.’” Lawrence v.
Lensing, 42 F.3d 255, 257 (5th Cir. 1994) (emphasis added); see also United
States v. Fogg, 652 F.2d 551, 558 (5th Cir. 1981). In United States v. Brown,
628 F.2d 471 (5th Cir. 1980), this Court stated:
      regardless of whether the evidence was material or even
      exculpatory, when information is fully available to a defendant at
      the time of trial and his only reason for not obtaining and
      presenting the evidence to the Court is his lack of diligence, the
      defendant has no Brady claim....In no way can information known
      and available to the defendant be said to have been suppressed by
      the Government.

Id. at 473. Based on the facts of this case, and the law as it existed in 1994,
there was no Brady violation with respect to the alleged suppression of this
evidence, as Plaintiff and his counsel were clearly aware of Carreon’s
recantation prior to trial.   Moreover, because Carreon did not testify at
Plaintiff’s trial, and because Carreon’s identification of Plaintiff was never
introduced, we do not see how disclosure of Carreon’s recantation of his
identification of Plaintiff could have impacted the result of the criminal
proceeding in any significant way.




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                                  No. 09-50659

      Resolving all factual disputes in Plaintiff’s favor, he has not shown the
violation of a clearly established constitutional right on his Brady claim.
Defendants are therefore entitled to qualified immunity.
                              IV. CONCLUSION
      We decline to exercise pendent jurisdiction over the district court’s denial
of summary judgment on the statute of limitations issue. Plaintiff has not
established the violation of any clearly established constitutional rights on his
individual capacity § 1983 claims as the law existed in 1994. Defendants Jesus
Terrones, Guillermo Martinez, Arturo Ruiz, Jr., Antonio Tabullo, Joe Zimmerly,
and Pedro Ocegueda, are therefore entitled to qualified immunity on Plaintiff’s
remaining individual capacity § 1983 claims against them. Accordingly, we
REVERSE the district court’s denial of qualified immunity, and REMAND for
entry of summary judgment in Defendants’ favor on Plaintiff’s 42 U.S.C. § 1983
claims against Defendants in their individual capacities. We DISMISS the
appeal as to the statute of limitations defense for lack of jurisdiction.
      REVERSED in part, DISMISSED in part, and REMANDED.




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