IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-50562

_____________________

CESAR ROBERTO FIERRO,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director,

Texas Department of Criminal

Justice, Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Texas

_________________________________________________________________ November 23, 1999

Before KING, Chief Judge, JOLLY, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Cesar Roberto Fierro, a dea th row inmate, has been here

before. Fierro has been awaiting execution for over nineteen years

after having been convicted of capital murder and sentenced to

death for the murder of a taxi driver in El Paso, Texas. He has

petitioned the federal courts for a writ of habeas corpus three

times, and his fourth petition--which we authorized--is now pending

in the district court.

Today he comes to our court to challenge the district court’s

denial of his motion to vacate its earlier judgment denying his

petition for habeas relief. Fierro argues that because of the2

discovery of certain evidence, it is now indisputable that his

confession wa s involuntary and that police officers committed

perjury in obtaining his conviction. He argues that the earlier

judgment of the federal court denying habeas relief was obtained by

fraud on the court and that the judgment should therefore be

vacated. For the reasons stated below, we affirm the judgment of

the district court refusing to set aside its earlier ju dgment

denying habeas relief.

I

The facts underlying today’s appeal have been reported in

several published opinions. S ee Ex Parte Fierro

, 934 S.W.2d 370

(Tex. Crim. App. 1996) (en banc); Fierro v. State , 706 S.W.2d 310

(Tex. Crim. App. 1986) (en banc); Fierro v. Lynaugh

, 879 F.2d 1276

( 5th Cir. 1989). We will not burden the federal reporters with

another lengthy recitation. The procedural history of this case,

however, requires thorough consideration for our purposes today.

Prior to Fierro’s trial for murder in the Texas state court in

1 980, Fierro moved the trial court to suppress his confession

statement. He argued that the police coerced him into giving the

confession by telling him that his parents were in a Mexican jail

and that they would remain there until he confesse d. The state

court held a suppression hearing at which Officer Medrano--the

officer who took Fierro’s confession--testified. At this hearing,3

Medrano testified that he did not have any information of Fierro’s

parents being held in custody. F ierro

, 706 S.W.2d at 315. Another

officer testified that Fierro was not threatened and that he gave

the confession freely. Id. Fierro also testified at the hearing

and contradicted the testimony of the two officers with his own

version of the facts. Id. at 316. After hearing this testimony,

the trial court decided to allow the confession into evidence. The

arguments over the confession’s voluntariness were also submitted

to the jury and rejected. Fierro was convicted and he appealed

through the Texas court system. His conviction and sentence were

affirmed. The Texas Court of Criminal Appeals explicitly approved

of the trial court’s determination that Fierro had made his

confession voluntarily. Id. at 316.

Fierro then sought a writ of habeas corpus in the state and

federal cou rts. He first filed a p ro se petition in the federal

district court. The district court refused to grant the petition,

and Fierro then unsuccessfully sought relief in the state courts.

We affirmed the denial of his second federal petition for the writ

in Fierro v. Lynaugh

, 879 F .2d 1276 (5th Cir. 1989). In our

affirmance, we gave the state court findings of fact their due

presumption of correctness as directed by the federal habeas

statutory provisions and case law. See Fierro , 879 F.2d at 1279.

Fierro then sought certiorari in the Supreme Court. This petition4

was also denied. F ierro v. Collins

, 494 U.S. 1060 (1990). Fierro

then filed a third federal habeas petition. We affirmed the

dismissal of this petition in an unpublished opinion. Soon

thereafter, in 1994, Fierro’s attorney found what Fierro now argues

is a “smoking gun.” Fierro’s attorney discovered a “supplemental

police report” that “reflected that [Fierro’s] parents were in the

custody of the Juarez police.” E x Parte Fierro

, 934 S.W.2d at 371.

Fierro took this “new” evidence to the Texas Court of Criminal

Appeals and obtained a ruling ordering the trial court to conduct

a hearing and to enter findings of fact and conclusions of law

addressing Fierro’s allegations of perjury.

After holding a hearing, the state trial cour t made the

following findings of fact:

1 ) That at the time of eliciting the Defendant's

confession, Det . Medrano (now deceased) did have

information that the Defendant's mother and stepfather

had been taken into custody by the Juarez police with the

int ent of holding them in order to coerce a confession

from the Defendant, contrary to sai d Det. Medrano's

testimony at the pretrial suppression hearing.

2) That the District Attorney's Office did not withhold

this Supplemental Offense Report from the attorneys for

the Defendant.

3) That Det. Medrano presented false testimony regarding

the nature and extent of the cooperation between the El

Paso police and the Juarez police in this particu lar

case, as it existed in 1979. There was no evidence

produced to show that such practices are still taking

place.1 We stated in our order that

[i]n addition to the claim that an El Paso police officer

gave perjured testimony at Fierro’s pretrial suppression

hearing, Fierro is authorized to raise the related issue

whether the attorneys who represented Fierro at trial and

on direct appeal were ineffective for failing to discover

the existence of the supplemental offense report on which

the claim of perjured testimony is based.

5 See Ex parte Fierro

, 934 S.W.2d at 371. The trial judge concluded

that Fierro should receive a new tria l. The Texas Court of

Criminal Appeals disagree d

. Although it accepted the trial

court’s findings of fact, the appellate court denied any reli ef.

The court held, under its harmless error analysis, that “it is

more probable than not that the outcome of applicant’s trial would

have been the same absent the confession.” Id. at 376.

After this se tback, Fierro again sought relief in federal

court. On November 11, 1997, the Fifth Circuit granted Fierro

leave to file a successive habeas petition. S ee 28 U.S.C.

§ 2244(b) ( 3). 1 Fierro then proceeded to file the petition in the

district court.

Along with this successive habeas petition, Fierro also filed

a motion requesting that the district court vacate its earlier

judgment denying his first habeas petition. In his motion, Fierro

argued that the district court had the authority to vacate its

earl ier judgment under (1) its “inherent equitable powers,” (2)2 Fed. R. Civ. P. 60(b) states the following:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly

D iscovered Evidence; Fraud, Etc. On motion and upon

such terms as are just, the court may relieve a party or

a party's legal representative from a final jud gment,

order, or proceeding for t he following reasons: (1)

mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidenc e which by due diligence

could not have been discovered in time to move for a new

trial under Rule 59(b); (3) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation,

or other misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has been satisfied,

released, or discharged, or a prior judgment upon which

it is based has been reversed or otherwise vacated, or it

is no longer equitable that the judg ment should have

prospective applica tion; or (6) any other reason

justifying relief from the operation of the jud gment.

The motion shall be made within a reasonable time, and

for reasons (1), (2), and (3) not more than one year

after the judgment, order, or proceeding was entered or

taken. A motion under this subdivision (b) does not

a ffect the finality of a judgment or suspend it s

operation. This rule does not limit the power of a court

to entertain an independent action to relieve a party

from a judgment, order, or proceeding, or to grant relief

to a defendant not actually personally notified as

provided in Title 28, U.S.C., § 1655, or to set aside a

judgment for fraud upon the court. Writs of coram nobis,

c oram vobis, audita querela, and bills of review a n d

bills in the nature of a bill of review, are abolished,

and the procedure for obtainin g any relief from a

judgment shall be by motion as prescribed in these rules

or by an independent action.

6 Fed. R. Civ. P. 60(b)(5), and (3) Fed. R. Civ. P. 60(b)(6). 2 The

district court denied this motion, relying on our precedent holding

that Rule 60(b) motions are to be treated as successive habeas

petitions. The district court then concluded that it had no

jurisdiction to consider the arguments in this motion because we3 Although Fierro sti l l has a successive habeas petition

pending in the federal district court, th e denial of Fierro’s

motion to vacate is a final decision ripe for appeal. The motion

to vacate was filed in th e case styled F ierro v. Lynaugh

, No.

EP-87-CA-377. The pending, successive petition involves an

independent proceeding under case No. EP-97-CA-480.

4 Issues relating to any other constitu tional challenges that

Fierro might present must, of course, proceed through the ordinary

habeas procedures.

7 had not authorized a successive habeas petition on grounds stated

in the motion. The successive habeas petition (for which we gave

authorization) remains pending in the district court.

After having his motion denied, Fierro sought a Certificate of

Appealability (“COA”) in our court, hoping to obtain authorization

for an appeal of the denial order. On October 20, 1998, we denied

the petition for a COA as unnecessary; we instructed Fierro that he

did not need to seek a COA to appeal the denial of his motion based

on equitable claims. 3 We also instructed the parties to brief the

following issue:

Whether there exists an equitable remedy, independent of

28 U.S.C. § 2244(b), which would allow a federal court to

vacate a fraudulently-obtained judgment in a prior

federal habeas proceeding.

We h a ve determined, however, that we need not provide an

answer to the question of whether t h e provisions of the

Antiterrorism and Effective De ath Penalty Act of 1996 (the

“AEDPA”) preempt our use of inherent powers in the context of a

petition for a writ of habeas corpus. 4 We do not need to answer8

the question because even if the AEDPA does not foreclose the use

of courts’ inherent powers to vacate prior judgments, Fierro has

not met the standards for vacating a decision due to fraud on the

federal courts.

II

We begin our analysis by noting that according to 28 U.S.C.

§ 2244(b)(1), “ [a] claim presented in a second or successive

habeas corpus application under section 2254 that was presented

in a prior application shall be dismissed.” Fierro argued in a

previous habeas petition, as he does now, that his confession was

not voluntary and it should not have been admitted at his trial.

Fierro’s argument has not changed, but he now claims to have new

evidence that gives more credence to his previous argument. Thus,

the plain language of § 2244(b)(1) would bar any ruling in

Fierro’s favor upon a Rule 60(b) motion if that motion is

construed as a “second or successive habeas corpus application.”

Our own court and other circuit courts have decided that Rule

60(b) motions should be construed as successive habeas petitions

governed by the AEDPA’s provisions. See, e.g.

, United States v.

Rich

, 141 F.3d 550, 551-52 (5t h Cir. 1998), c ert. denied

, 119

S.Ct. 1156 (1999); see also Bur ris v. Parke , 130 F.3d 782, 783

(7th Cir. 1997) (Easterbrook, J.) (“Appellate courts agree that

a post-judgment motion under Fed. R. Civ. P. 60(b) in the district5 Fierro argues (1) that the district court should have

recalled the mandate in its judgment on his first habeas petition

to that court, and (2) that we should recall the mandate and vacate

our opinion in Fierro v. Lynaugh , 879 F.2d 1276 (5th Cir. 1989).

6 Only one circuit appears to have confronted this issue. The

Fourth Circuit addressed th e question in an unpublished opinion.

See United States v. MacDonald

, No. 97-7297, 1998 WL 637184 (4th

9 court, or the equivalent motion in the court of appeals--which is

to say, a motion to recall the mandate--is a `second or

successive’ application for purposes of § 2244(b).”). In B urris

v. Parke

, 130 F.3d 782 (7th Cir. 1997), th e habeas petitioner

asked the Seventh Circuit to recall its man date based on new

testimonial evidence from a neuropsychologist. The court rejected

the request:

Burris wants us to recall our mandate to take a step that

every court of appeals that has addressed the s ubject

believes forbidden by § 2244(b): reassessing old theories

in light of new evidence. A state governor or clemency

board may receive and act on such evidence; under

§ 2244(b), a federal court may not.

Id. at 785.

Fierro argues, however, that his “new” evidence attacks the

very integrity of the proceedings, both in the district court and

this court. 5 Thus, the question becomes whether we treat a Rule

60(b) motion as a successive h a beas petition even when the

arguments allege that fraud on the court has occur red. Stated

d ifferently, can the court’s inherent powers save Fierro’ s Rule

60(b) motion from a quick dismissal under § 2244(b)(1)? 6Cir. Sept. 8, 1998). The court concluded that the AEDPA does not

bar a Rule 60(b) motion premised upon fraud on the court. Id. at

*3. The court reached this conclusion, in part, because “actions

alleging fraud upon the court

. . . attack the validity of a prior

judgment, based on the theory that ‘a decision produced by fraud on

the court is not in essence a decision at all and never becomes

final.’” Id. ( quoting 11 Wright and Miller, F EDE RAL P RACTICE AND

P ROCEDURE § 2870 at 409 (1995) ( quoting Kenner v. Commissioner of

Internal Revenue

, 387 F.2d 689, 691 (7th Cir. 1968)). The court

also went on to conclude, however, that the facts alleged did not

constitute fraud on the court. M acDonald

, 1998 WL 637184 at *3-6.

7 The lower federal courts were, of course, created by acts of

Congress. Congress may, therefore, be able to curtail any of the

inherent powers posse ssed by those courts that Congress creates.

See Chambers v. NASCO, Inc. , 501 U.S. 32, 47 (1991).

8 The Chambers case dealt with the federal courts’ inherent

power to impose sanctions for bad fait h conduct. The court held

that Rule 11 does not displace the courts’ inherent power to impose

sanctions.

10 It is exceedingly difficult to answer this question because

t he search for an answer pits the clear statutory language (of

§ 2244(b)(1)) against long-estab l ished “inherent” powers of the

judiciary. 7 The Supreme Court has repeatedly held that federal

courts possess the inherent power “to vacate [their] own

judgment[s] upon proof that a fraud has been perpetrated upon the

court.” C hambers v. NASCO, Inc.

, 501 U.S. 32, 44 (1991) ( citing

Hazel-Atlas Glass Co. v. Hartford-Empire Co.

, 3 22 U.S. 238

(1944 )). 8 The power to grant “[e]quitable relief against

fraudulent judgments is not of statutory creation.” H azel-Atlas

,

322 U.S. at 248. This equitable power was “firmly established in

English practice long before the foundation of our Republic,” id.9 Bu t see id. at 47 (with internal quotation marks and

citations omitted):

It is true that the exercise of the inherent power of

lower federal courts can be limited by statute and rule,

for [t]hese courts were created by act of Congress.

Nevertheless, we do not lightly assume that Congress has

intended to depart from established princip les such as

the scope of a court’s inherent power.

11 at 244, and the power is vested in courts by their very creation.

See Chambers

, 501 U.S. at 43-44. C f. id. at 58 (Scalia, J.,

dissenting) (“Some elements of th[e] inherent authority are so

essential to ‘[t]he judicial Power,’ U.S. Const., art. III, § 1,

that they are indefeasible . . .”). 9

Nevertheless, the Supreme Court’s review of an ap pellate

court’s use of its inherent powers in habeas cases is influenced

by “the statutory and jurisprudential limits applicable in habeas

corpus cases.” C alderon v. Thompson

, 118 S.Ct. 1489, 1499 (1998).

“In light of ‘the profound societal costs that attend the exercise

of habeas jurisdiction,’ we have found it necessary to impose

significant limits on the discretion of f ederal courts to grant

habeas relief.” I d. ( citing Smith v. Murry

, 477 U.S. 527, 539,

106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1996)). “These limits

reflect our enduring re spect for the State’s interest in the

finality of convictions that have survived direct review within

the state court system. . . . Finality is essential to both the10 The Ninth C ircuit recalled its mandate 53 days after the

mandate had issued. Thompson , 118 S.Ct. at 1497.

12 retributive and the det e rrent function of criminal law.”

Thompson , 118 S.Ct. at 1500-01.

In Thompson

, the Supreme Court held tha t the Ninth Circuit

abused its discretion in re calling its own mandate in a habeas

case. I d. at 1494. The case involved the appellate court’s

inherent power to recall its own mandate, a power spe cifically

recognized by t he Supreme Court. I d. at 1498. It is important

to note, however, that in discussing Thompson in the conte xt of

today’s case, Thompson did not concern the use of inherent powers

to correct a fraud upon the court. Instead, an en banc panel of

the Ninth Circuit recalle d its mandate sua sponte because “the

decision of the original panel ‘would [have led] to a miscarriage

of justice.’” Id. at 1497 ( quoting Thompson v. Calderon

, 120 F.3d

1 045, 1048 (9th Cir. 1997)). 1 0 The Ninth Circuit exercised its

inherent power to recall the mandate so that it could reconsider

the merits of the petitioner’s first habeas petition. T hompson

,

118 S.Ct. at 15 00. The court did not consider any evidence

presented in subsequent motions and petitions. Id.

In contrast to the situation faced by the Ninth Circuit, we

confront a case involving a pri soner’s motion to vacate a11 This new evidence includes affidavits submitted by various

people as wel l as the state trial court’s new findings of fact

(which are, of cou rse, based on “new” evidence--i.e., oral

testimony as well as affidavits--produced since this court affirmed

the denial of Fierro’s prior petition).

13 judgment. With respect to such a motion, the T hompson Court

stated:

In a § 2254 case, a prisoner’s moti on to recall the

mandate on the basis of the merits of the underlying

decision can be regarded as a second or successive

application for purposes of § 2244(b). Otherwise,

petitioners could evade the bar against relitigation of

claims presented in a prior application, § 2244(b)(1),

o r the bar against litigation of claims not pre sented

in a prior application, § 2244(b)(2). If the court

grants such a motion, its action is subject to AEDPA

irrespective of whether the motion is based on old

claims (in which case § 2244(b)(1) would apply) or new

ones (in which case § 2244(b)(2) would apply).

Thomps on , 118 S.Ct. at 1500. This language suggests that a

court’s recall of its mandate in this case would be governed by

§ 2244(b) because the evidence supporting an y relief would be

“new

. . . evidence presented in [Fierro’s] successive application

for habeas relief .” 11 A straightforward application of the

Thompson rule, combined with a literal application 2244(b)(1),

appears to leave the court powerle ss to correct any ruling when

(1) fraud on the court is subsequently uncovered and (2) that

f raud somehow interrelates with a habeas claim prev iously

presented.14

On the other hand, perhaps the Supreme Court would not apply

the above general principles to Fierro’s case. The Court

qualified its Thompson opinion with the following language:

We should be clear about the circumstances we address

in this case.

. . . This [] is not a case of fraud upon

the court, calling into question the very legitimacy of

t he judgment. S ee Hazel-Atlas Glass Co. v. Har tfordEmpire Co. , 322 U.S. 238 (1944).

Thompson

, 118 S.Ct. at 1501-02. The Court thus suggests that

cases involving claims of fraud on the court may warrant different

treatment.

After reviewing the parties’ arguments, we conclude that we

need not decide whether the provisions of AEDPA preempt, or

otherwise modify, courts’ use of their inherent powers in habeas

cases involving claims of fraud on the court.

Even if an inherent power gives life to a challenge that §

2244(b)(1) woul d otherwise forbid, Fierro’s allegations do not

support the use of such an inherent power because he has failed

to allege any facts that would constitute a fraud on the federal

courts.

III

A

Before analyzing Fierro’s “fraud on the court” argument as

it applies to the federal district court and to this court, it is

important to state clearly the evidence that Fierro does, and does12 Fraud on state courts cannot be the basis of habea s relief

unless that fraud amounts to the denial of a federal right.

Sawyers v. Collins

, 986 F.2d 1493, 1497 (5th Cir. 1993); citing

Barefoot v. Estelle

, 463 U. S. 880, 893, 103 S.Ct. 3383, 3394, 77

L.Ed.2d 1090 (1983). No such claim is made here.

15 not, alle ge. Consistent with the findings of the state courts,

Fierro alleges that Officer Medrano testified falsely at the

suppression hearing in state court. Fierro does not, however,

allege that the prosecuting attorney knew that Medrano’s testimony

was false. Most important to this appeal, Fierro does not allege

that the attorneys representi ng the Director of the Texas

Department of Corrections in these federal habeas proceedings had

any knowledge that the subject testimony was false. Furthermore,

it is important to keep in mind that in reviewing the district

court’s denial of the motion to vacate, we deal only w ith

allegations of fraud on the federal courts, not any fraud that may

have been perpetrated upon the state courts. 1 2 Thus we will

consider only the conduct of the relevant parties d uring the

federal habeas proceedings.

Both parties cite our precedent in which we stated the black

letter law for finding a fraud on the court:

To establish fraud on the court, it is n e cessary to

show an unconscionable plan or scheme which is designed

to improperly influence the court in its di scretion.

Generally speaking, only the most egregious misconduct,

such as bribery of a judge or members of a jury, or the

fabrication of evidence by a party in which an attorney

is implicated, will constitute a fraud on the c ourt.13 Fierro relies heavily on two cases

-- H azel-Atlas and Rozier

v. Ford Motor Co.

, 573 F.2d 1332 (5th Cir. 1978)--to construct what

he considers to be the elements of an action for “fraud on the

court.” Direct reliance on these cases, however, is somewhat

questionable. The court in R ozier analyzed a motion brought under

Rule 60(b)(3), not an equitable action for fraud on the court.

Furthermore, the Rozier court explained at length that the

requirements for a “fraud on the court” action were more stringent

than t hose for a Rule 60(b)(3) motion. R ozier

, 573 F.2d at

1337-39; s ee also Great Coastal

, 675 F.2d at 1356 (“fraud on the

court” concept “should be construed very narrowly,” otherwise the

concept could “easily overwhelm the specific provision of 60(b)(3)

and its time limitation and thereby subvert the balance of equities

contained in the Rule”); Gleason v. Jandrucko

, 860 F.2d 556, 558

(2d Cir. 1988) (stating that “fraud on the court” action is

narrower in scope than Rule 60(b)(3)). Fierro does not, and could

not, base his argument on Rule 60(b)(3). That provision includes

a one-year statute of limitations:

On motion and upon such terms as are just, the court may

relieve a party or a party’s legal representative from a

fin al judgment, order, or proceeding for the following

reasons:

. . . (3) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party

. . . The motion shall be

made

. . . not more than one year after the jud gment,

order or proceeding was entered or taken. . . .

Fierro presented his Rule 60(b) motion to the district court more

than ten years after the distr ict court’s judgment from which

Fierro seeks relief.

Aside from Rozier , Fierro’s reliance on Hazel-Atlas --without

alluding to our subsequent case law interpreting that decision--is

questionable; our court has interpreted Hazel-Atlas in the light of

other Supreme Court and sister circuit precedent. See especially

Browning v. Navarro

, 826 F.2d 335, 342-45 (5th Cir. 1987) . In

Browning

, we thoroughly reviewed Supreme Court p recedent in an

16 Less egregious misconduct, such as nondisclosure to the

court of facts allegedly pertinent to the matter before

it, will not ordinarily rise to the level of fr aud on

the court.

First Nat’l Bank of Louisville v. Lustig

, 96 F.3d 1554, 1573 (5th

Cir. 1996) (quotation marks and citations omitted). 13effort to define “judgment procured by fraud.” Fierro’s briefs do

not contain a whisper of Browning

.

17 After noting this language, the arguments in the state’s and

F ierro’s briefs take predictable paths. The state essentially

argues that false testimony by a police officer (when the state’s

attorneys in federal habeas proceedings are not aware of its false

nature) amounts to “nondisclosure to the court of facts allegedly

pertinent to the matter before it.” As a result, such

nondisclosure would not establish fraud on the court. Fierro

argues that the false te stimony constitutes “fabrication of

evidence by a party in which an attorney is implicated.” Although

Fierro does not argue that the state’s attorneys knew about

Officer Medrano’s false testimony, Fierro maintains that the

state’s attorneys--both the prosecutin g attorneys and the

attorneys representing the Director of the Texas De partment of

C orrections--are implicated because testifying officers and the

state’s attorneys constitute the “prosecution team.”

Our decision in Browning v. Navarro

, 826 F.2d 335 (5th Cir.

1987), provides further guidance on the standard for considering

fraud upon the court. In B rowning

, this court analyzed two

Supre me Court cases dealing with “fraud on the court” actions:

United States v. Throckmorton

, 98 U.S. 61 (1878), and Hazel-Atlas

.

The court summarized the lessons of these two cases:14 See also Browning

, 826 F.2d at 343 (“According to Justice

M iller’s reasoning [in Throckmorton ], in order to collat erally

attack the judgment, it must have been obtained by fraud, as

distinguished from having been based on fraud.”).

15 See Brownin g , 826 F.2d at 344 n.11 (noting that some

commentators have criticized the intrinsic/extrinsic distinction);

Gl eason , 860 F.2d at 560 (refusing to recognize the

intrinsic/extrinsic distinction as a factor in analyzing a “fraud

on the court” action).

16 In a footnote, the Browning court stated that “[t]he courts

have uniformly held that perjury of a single witness, false

evidence (in the absence of attorney involvement) or mere

nondisclosure are insufficient to establish fraud upon the court.”

Browning , 826 F.2d at 344 n.12.

18 Throckmorton st ands clearly for the proposition that

intrinsic fraud, that is, fraudulent evide nce upon

which a judgment is based, is not grounds to set aside

a judgment. It also makes clear that extrinsic fraud,

that is, fraud that was not the sub ject of the

litigation, that infects the actual judicial pr ocess,

is grounds to set aside a jud gment as procured by

fraud. 14

. . . Hazel-Atlas is to be read as an expansion

of the limits set by Throckmorton in attacking

judgments generally

. . . Hazel-Atlas allows a judgment

to be attacked on the basis of intrinsic fra u d that

results from corrupt conduct by officers of the court.

Browning , 826 F.2d at 344 (footnotes omitted).

The alleg edly false testimony of Officer Medrano standing

alone clearly constitutes intrinsic fraud and will be insufficient

to set t he judgment aside. 1 5 Fierro’s only hope to prove fraud

sufficient to set aside the federal judgment is to show that the

unknowing reliance on Officer Medrano’s false testimony by the

state’s habeas attorney constitutes “corrupt conduct by officers

of the court.” 16 Fierro notes that our court recently stated that19

government prosecutors have constructive notice of a police report

that contradict the elicited testimony of a governme nt witness.

Creel v. Johnson

, 162 F.3d 385, 391 (5th Cir. 1998). Applying the

rule in Creel to his own case, Fierro argues that the state

attorneys’ conduct in the state trial (and on appeal) was corrupt

because of their constructive knowl edge of a police report that

contradicted Me drano’s testimony. This is only the first step,

h owever. To succeed in the federal court, Fierro asks us to

extend the rule in Creel to hold that attorneys representing the

State D e partment of Corrections in a federal habeas case have

constructive notice of police reports that contradict the elicited

testimony of government witnesses at the trial.

Even if we accepted F ierro’s argument that prosecuting

attorneys constructive knowledge of false testimony could satisfy

the requirement for a showing of fraud upon the court, we have no

basis in law or fact to extend such a theory to the state’s habeas

attorneys. Although the prosecuting attorney and Officer Medrano

m ight arguably be considered a solitary prosecution unit, the

relationship between Officer Medrano and the state’s attorneys in

a federal habeas proceedings is too attenuated to allow the

necessary imputation.

The attorneys for the T exas Department of Corrections in a

federal habea s case do not act as prosecutors of the crime20

investigated by the law enforcement officers. Prosecutors are

actively involved in trial preparation, production o f evidence,

examination of witnesses, and evaluating the credibility of

prosecution witnesses. Thus prosecutors work hand in hand with

the police in presenting the case bef ore the courts. The

attorneys for the Director of Corrections, however, act in

response to a petitioner’s charge of unlawful detention that

usually centers around the larg er questions of the

constitutionality of the judgments of the criminal courts.

Although these attorneys will undoubtedly point to the work of the

prosecuting attorneys to defend the petitioner’ s continuing

detention, the Director’s attorneys neither work with the police

in a co m mon enterprise, nor are they in the business of

prosecuting crime. Lacking such a connection as part of a

prosecution tea m, any constructive knowledge of police reports

that might be imputed to the prosecutors cannot be imputed to the

state’s attorneys in a federal habeas case.

B

Finally, we do recognize that Fierro argues that the Texas

Court o f Criminal Appeals seriously erred in its ruling related

to the state trial court’s finding that Officer Medrano gave false

testimony. For example, Fierro argues that the Texas court erred

in its application of the harmless error standard. For the21

federal courts to p rovide any relief based on these arguments,

h owever, Fierro must allege some violation of a federal right.

Any petition based on federal law will be governed by § 2244(b)

as a successive habeas petition. It is not appropriate for us to

address these arguments in an appeal from the denial of a motion

to vacate an earlier judgment. We therefore state no opinion as

to the validity of any potential constitutional challenges to his

continued detention.

IV

For the foregoing reasons, the judgment of the district court

is

A F F I R M E D.