* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### September 20, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RUBEN R. HERRERA,

Petitioner-Appellant, No. 03-2164

v. (D. of N.M.) TIM LEMASTER, Warden, New Mexico State Penitentiary, ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondent-Appellees. (D.C. No. CIV-97-542-JP/LFG)

ORDER AND JUDGMENT *

Before HENRY , LUCERO , and TYMKOVICH , Circuit Judges.

This is the fourth appeal of Ruben Robert Herrera’s 1982 conviction for first degree murder outside a nightclub in Las Vega s, New Mexico. The question in this appeal is whether on remand the district co urt correctly applied Brecht v. Abrahamson , 507 U.S. 619 (1993), in denying Herrera’s petitio n for a writ of habeas corpus. Under Brecht , a conviction based on the admission of evidence i n-2-

violation of the Constitution will be reversed if t he evidence had a “substantial and injurious effect or influence on the jury’s ver dict.” Herrera argues the introduction at trial of a bullet, bullet clip, and bullet casing seized under a warrant deemed to lack probable cause improperly in fluenced the jury’s verdict. Because we do not believe that Herrera has met the Brechtstandard, we affirm. Our jurisdiction is pursuant 28 U.S.C. §§ 1291 and 2253. I. BACKGROUND A. Procedural History This appeal follows three previously reported decis ions. In 1985, the New Mexico Supreme Court affirmed Herrera’s murder conv iction on direct appeal, concluding that despite the admission at trial of e vidence obtained pursuant to a search warrant that lacked probable cause, the erro r was harmless. State v. Herrera , 694 P.2d 510 (N.M. 1985) (Herrera I ). Herrera filed a habeas corpus petition in 1998, which was denied by the district court, also on the ground that the error was harmless. On appeal, we reversed andremanded for further proceedings so that the district court could apply the correct standard of review for harmless error under Brecht

. Herrera v. Lemaster , 225 F.3d 1176 (10th Cir. 2000) (Herrera II

). An en banc panel of this court reaffirmed the application of Brechtas the proper standard for habeas review in Herrera v. Lemaster , 301 F.3d-3-

1192 (10th Cir. 2002) (Herrera III ). Herrera appealed that decision to the United States Supreme Court, which denied certiorari revie w. On remand, the district court referred the case to a magistrate judge for a de novo review of the record. The magistrate judge co ncluded that admission of the illegally seized evidence at trial was harmless und er Brecht . Herrera filed objections. The district court adopted the magistr ate judge’s recommended disposition, and denied the petition. Herrera appe aled. B. Factual History The factual background of this appeal is described in previous opinions, and we briefly summarize only the relevant facts he re. On November 5, 1982, the victim, Leroy Lovato, encountered Ruben Herrera at the El Nido nightclub in Las Vegas, New Mexico. A brief dispute occurred betwee n Lovato and Herrera after Lovato accused Herrera of harassing Lovato’s cousin . Herrera told Lovato to mind his own business and then left El Nido by hims elf. About one hour later, Lovato and a friend, Phillip Arellanes, left El Nido. They intended to join two women, Denise Martinez an d Debra Farrell, outside the club. As the four were talking on the sidewalk nea r Lovato’s car, Arellanes noticed Herrera crossing the street and heading tow ard the group. Arellanes commented to Lovato that Herrera was approaching. The two women, fearing an altercation, turned to leave.-4-

Sensing danger, Arellanes told Herrera that neitherhe nor Lovato wanted any trouble. Herrera ignored him and turned towardLovato. Lovato reached out his hand, apparently to shake Herrera’s hand. Inst ead of returning the gesture, Herrera pulled out a gun, shot Lovato in the neck ( he died that night at a hospital), and then pointed the gun at Arellanes. Arellanes begged for his life. Herrera threatened Arellanes and warned him not to call the police. Herrera then crossed the street and fled the scene. Although ne ither Martinez nor Farrell testified to seeing Herrera with a weapon aimed on Arrellanes, after the report of the gun shot, both turned to see Lovato lying on th e ground bleeding. Herrera was walking across the street with his hand to his side. Farre ll testified she saw Herrera sticking a gun into his pants. Martinez saw Herrera cross the street but did not see him with a gun. Arellanes and the two women then went to a nearby apartment to call for help. Two other witnesses, Robert Arellanes and Julian Bu stamante, also saw Herrera leave the scene. Both Robert Arellanes, a cousin of Phillip Arellanes, and Bustamante knew Herrera; Bustamante had been a high school acquaintance. While their view of the actual shooting had been pa rtially blocked by a parked car, Robert Arellanes saw Herrera cross the street after the shooting and place a gun into his pants. Although Bustamante saw Herrer a crossing the street holding his side, he did not see a gun. Both witnesses hada clear view of Herrera and-5-

later were readily able to identify him to police. They observed no one else near the scene of the shooting. After leaving to report the shooting, Phillip Arell anes and the two women returned to the murder scene. The police arrived a nd conducted an investigation. Investigators found a spent 9 millimeter casing near Lovato’s body but did not find a gun. In addition, the police arrested a “hy sterical” Arellanes for interfering with the investigation after he became disruptive a nd ignored repeated warnings to relax. Later at the police station, officers id entified Herrera as being at the scene after obtaining his name from Arellanes. The police then presented a photo array to Arellanes, Farrell and Martinez, each of w hom positively identified Herrera. Three hours after the shooting, the police arrested Herrera in the vicinity of his residence. He was taken to the Las Vegas polic e station and questioned. Investigators also took samples from his hands for use in a gun powder residue
test. The police then obtained a warrant to search Herrer a’s residence. During the search they found a bullet, clip, and a bullet casing from a 9 millimeter gun. Ballistics testing later determined that the spent casing found at the scene of the crime and the casing found in Herrera’s residence w ere fired from the same gun.-6-

The government charged Herrera with first-degree mu rder and aggravated assault. II. DISCUSSION Before turning to the question of harmless error, w e must address two issues that have stalked this case for a number of years, and greatly complicate our review. The first centers on the search warran t police obtained to enter Herrera’s home the day of the shooting. Although we do not resolve the issue in this appeal, we note that the record strongly sugge sts that the Las Vegas police did not violate Herrera’s Fourth Amendment rights i n obtaining a search warrant and searching his home the night of the murder. That observation brings us to the second complicati on: Law of the case. In Herrera III, the state asked us to revisit the New Mexico Supr eme Court’s finding that the search warrant violated the Fourth Amendme nt. We declined this invitation, finding that the argument had not been timely raised. Herrera III, 301 F.3d at 1196–97. In this appeal, the government asks us to disregardour prior determination. We again decline the invitation. Consequently, ourreview of the evidence of conviction will be through the lens of Brecht v. Abrahamson , 507 U.S. 619 (1993).-7-

A. Law of the Case The state argues that we need not address the effec t of the illegally seized evidence on the outcome of the trial, because the p olice acted in good faith in obtaining the warrant. Under the so-called good fa ith exception to the exclusionary rule set forth in United States v. Leon , 468 U.S. 897 (1984), evidence obtained pursuant to a constitutionally de fective search warrant is admissible at trial if the officers executing the s earch warrant reasonably relied on the warrant and there is no evidence the officers m islead the magistrate issuing the warrant. Id. at 920–21. Thus, the government urges us to ignore the prior determinations that the warrant was illegal and that the evidence seized pursuant to it should be suppressed. This issue had an unfortunate history in the New Me xico state courts. Although the United States Supreme Court decided Leon after Herrera’s trial, it was precedent during the direct appeal to the New M exico Supreme Court

. When the New Mexico Supreme Court first considered Herrera I in 1985, the state argued the good faith exception to the exclusionaryrule set forth in Leon need not be considered in light of the substantial evidence supporting probable cause for issuance of the warrant. The court agreed and dete rmined that its “disposition of th[e] case [was] such that [it did] not find it nec essary to discuss the good faith exception at [that] time.” Herrera I, 694 P.2d at 514

. The court went on to find,-8-

however, that “[t]here were insufficient facts to s how probable cause to search the premises described” in the search warrant, so “the search was illegal under both state and federal [law].” Id . The court nonetheless went on to conclude that t he admission of evidence seized pursuant to the warrant—the bullet, clip and casing—was harmless error. Id. The state tentatively raised the Leon issue to the Herrera II panel in the first federal appeal, which did not address the iss ue. Finally, in its brief before the Herrera III en banc panel, the government raised Leon as a potentially dispositive ground for affirmation and set forth it s argument in some detail. 301 F.3d 1192, 1196–97. However, since the state had f ailed to raise this argument in the district court, we declined to consider it for the first time on appeal. Id. Nonetheless, in spite of our refusal to hear the st ate’s Leon argument in Herrera III, the state again raised the argument before the ma gistrate judge on remand. The magistrate judge determined the question was be yond the scope of our remand instructions in Herrera III and declined to address it. The law of the case doctrine, although discretionary, holds that prior judicial decisions on rules of law govern the same issues in subsequent phases of the same case. See Homans v. City of Albuquerque , 366 F.3d 900, 904 (10th Cir. 2004). When an appellate court rules on an issue o f law, that ruling governs subsequent appeals; after a remand, the “decision o f the first appeal establishes-9-

the law of the case to be followed on the second ap peal.” Moore’s Federal Practice , § 134.22[2][b]. Accordingly, our en banc decision in Herrera III that Leon does not apply is the law of the case and governs o ur appeal here. Were we writing on a clean slate, we would be tempted to re mand for a determination of the application of Leon . But, based on the procedural history before us n ow, we again must “decline the state’s invitation to addre ss the applicability of Leon .” Herrera III, 301 F.3d at 1197. B. Brecht Analysis 1. Standard of Review “[W]e consider the question of harmless error de no vo under the general standard established for habeas cases in Brecht .” Willingham v. Mullin , 296 F.3d 917, 931 (10th Cir. 2002). A state court has not p reviously heard Herrera’s habeas claim on the merits, so the framework of 28 U.S.C. § 2254 does not apply. Instead, we examine the district court’s legal conc lusions de novo. Turrentine v. Mullin , 390 F.3d 1181, 1189 (10th Cir. 2004). Since our Herrera III remand was solely for the purpose of examining the evidence un der Brecht , here we need focus solely on the district court’s record review. The Supreme Court has told us to start with the wro ngly admitted evidence. The standard of review centers on whether the taint ed evidence had a “substantial and injurious effect or influence [on] the jury’s v erdict.” Brecht , 507 U.S. at 637.-10-

The Supreme Court elaborated in determining the sco pe of judicial review under Brechttwo years after the decision in O’Neal v. McAninch , 513 U.S. 432 (1995). There, the Court instructed courts in looking at th e record as a whole: If an appellate court has “grave doubt” about the influen ce of the offending evidence on the verdict, i.e. , “in the judge’s mind, the matter is so evenly bal anced that he feels himself in virtual equipoise as to the harmle ssness of the error,” the court should treat the error as having a substantial and injurious effect. Id. at 435; see also Webber v. Scott , 390 F.3d 1169 (10th Cir. 2004) (applying O’Neal). With these standards in mind, we turn to the eviden ce at trial. 2. Evidence Herrera contends the admission of the bullet, clip, and casing had a substantial and injurious effect on the jury becaus e it was the only physical evidence introduced in the state’s case in chief an d allowed the jury to resolve a number of factual disputes in its favor. Herrera’s theory of defense attempted to point the finger at Phillip Arellanes. According t o this argument, Herrera claims that Phillip Arellanes was, in fact, the shooter. Arellanes killed Lovato, concealed the murder weapon from the other witnesse s (or they conspired to lie at trial), and then arranged with his cousin to plant the bullet evidence in Herrera’s bedroom. Herrera argues his theory of defense was fatally compromised by the-11-

fact the bullet casing from Herrera’s home ballisti cally matched the casing found at the murder scene. In reviewing this theory against the evidence, the magistrate judge dismissed it as lacking “any convincing support” inthe record. And the district court, in reviewing the evidence again, concluded t hat “a careful de novo review indicates that Mr. Herrera’s speculation and suppos ition are just that. Mr. Herrera presents no record support for his theory, and the reason for that is obvious: there is none. The recorded admissible testimony present s overwhelming evidence of Mr. Herrera’s guilt.” After conducting our own independent review of the record in this case, including the tape recordings of the trial proceedi ngs, we agree with the district court. The admission of the bullet, casing, and cl ip found during the search of Herrera’s residence do not cause us “grave doubt” a s to the harmlessness of the error. Based on the testimony of five eyewitnesses , three of whom saw Herrera with a gun at the scene, and all of whom positively identified him shortly after the murder, we conclude that the tainted evidence did n ot substantially influence the jury’s determination that Herrera committed the mur der. We summarize the evidence below. Eyewitness Testimony. The state’s case-in-chief was anchored by the five eyewitnesses to the events immediately surrounding the shooting. As we-12-

discussed above, Phillip Arellanes, the state’s fir st witness, saw the shooting from point blank range, and two witnesses—Farrell and Ro bert Arellanes—saw Herrera holding a gun within seconds of the shooting. Alth ough Phillip Arellanes was the only person who witnessed the actual shooting, his testimony was uncontroverted at trial. Farrell and Martinez, moreover, testifie d regarding the events leading up to and after the shooting. Together, the three wit nesses’ testimony supplies a motive for the shooting (a bar room encounter), the opportunity for the shooting (Herrera was the only one to confront Lovato), and the consequences of the shooting (a bleeding Lovato and a fleeing Herrera). Each positively identified Herrera the day of the crime. The witnesses’ state ments were uncontroverted. In addition to the two women accompanying the victi m, the other two eyewitnesses were within sight of the shooting and testified regarding the events immediately after the shooting. Those witnesses, B ustamante and Robert Arellanes, testified to seeing Herrera acting suspi ciously when leaving the scene of the shooting. They both were able positively to identify him. Robert Arellanes saw him with a gun. Their testimony was also uncontroverted at trial. Herrera argues in the face of this evidence that Ph illip Arellanes was the actual gunman. To support this theory, at trial He rrera’s counsel cross-examined Phillip Arellanes and accused him of being the shoo ter, despite no testimony that Arellanes ever had a gun in his possession. Herrer a also offered the testimony of-13-

a friend, Richard Roybal, who claimed he was parked outside of Herrera’s residence waiting to pick up Herrera at dawn on the day of the shooting. He claimed that, while waiting for Herrera, he witness ed Robert Arellanes’s cousin get into a car parked in the alley next to Herrera’ s residence and leave the area. The implication of this testimony was that Arellane s’s cousin planted the bullet evidence in Herrera’s residence. Complicating this argument, however, was the fact that, prior to trial, Roybal never relayed his story to the police or to anyone involved in the case. Finally, Herrera tried to create reasonable doubt b y pointing out inconsistencies and bias in the testimony of the ey ewitnesses. For example, trial counsel sought to demonstrate that it was impossibl e for Herrera to shoot Lovato, turn and threaten Arellanes, and flee across the st reet all in the few seconds between when Farrell and Martinez heard the shot an d when they turned around. Herrera also points to several inconsistencies betw een statements witnesses gave prior to the trial and their testimony during the t rial. Farrell, for instance, testified at a preliminary hearing that she saw Her rera put something down his pants as he crossed the street, but she testified at trial she saw him put a gun down his pants. None of these examples, however, s eriously undermine the common story told by all of the eyewitnesses. As the district court observed, and-14-

we agree, these discrepancies are the normal incons istencies that flow from witness recollections of a dramatic nighttime murde r. Expert Testimony. Herrera attempted to counter the eyewitness testi mony with expert testimony showing he had not recently f ired a gun. Anticipating this evidence, the state presented expert testimony to e xplain the result of the gunshot residue analysis conducted on samples taken from He rrera’s hands after the shooting. According to the state’s expert, the tes t was inconclusive—he could not say whether Herrera had or had not fired a gun rece ntly. The expert, however, did testify that the absence of gunshot residue on Herr era’s hands could be explained by the fact that such residue wears off easily and the time lapse between the shooting and the test. Herrera’s expert agreed that the samples taken fromHerrera’s hands three hours after the shooting showed no sign of gunpowde r residue. In addition, he explained how Herrera’s hands could not have been w ashed in close temporal proximity to the test. However, in the end, both e xperts testified that gun shot residue wears off rapidly. And both agreed the res idue test here was at best inconclusive. Lack of Substantial, Injurious Effect. In short, Herrera has not presented a plausible interpretation of the evidence that would allow us to find that admission of the bullet, clip, and casing had a substantial, injurious effect by allowing the-15-

jury to resolve these factual disputes against him. To the contrary, these arguments lack record support and can be readily re solved against him without reference to the bullet, clip, and casing. We have held in other contexts that the emphasis gi ven at trial and at closing to evidence admitted in violation of the Co nstitution is relevant to harmless error analysis. United States v. Summers , 414 F.3d 1287, 1304 (10th Cir. 2005); United States v. Lauder , 409 F.3d 1254, 1261–62 (10th Cir. 2005). Contrary to Herrera’s claims, the physical evidence was a relatively small part of his trial. It was briefly mentioned in the prosecu tor’s opening statement but only after a lengthy exposition of what the anticipated eyewitnesses would say. The casing evidence came in on the fourth day of a five -day trial through a police witness. Similarly, during closing, as the distric t court noted, the references to the evidence “amounted to only a small fraction” of the prosecutor’s final argument. On the other hand, the prosecution’s case was a pow erful collection of eyewitness testimony: it was unchallenged that five witnesses placed Herrera at the scene of the murder, one witness saw him pull t he trigger, and two other witnesses saw him with a gun. While we do not dism iss the physical evidence as having no significance to a jury, we cannot conclud e the evidence itself and the emphasis placed on it by the state in this case “ti p the scales” such that its-16-

admission had a substantial, injurious effect on th e jury’s verdict . Brecht , 507 U.S. at 637. In sum, the evidence of guilt in this case was overwhelming. CONCLUSION We therefore AFFIRM the decision of the district co urt. Entered for the Court Timothy M. Tymkovich Circuit Judge