Herod v. Guerrero

── Herod v. Guerrero ── Court: Court of Appeals for the Fifth Circuit Date: May 20, 2026 Category: Prisoner w/ Counsel Case: 25-40247 Document: 65-1 Page: 1 Date Filed: 05/20/2026 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 25-40247 FILED May 20, 2026 ____________ Lyle W. Cayce Richard Anthony Herod, Clerk Plaintiff—Appellee, versus Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 3:15-CV-338 ______________________________ Before Richman, Engelhardt, and Wilson, Circuit Judges. Per Curiam:* Appellee Richard Anthony Herod was convicted of aggravated sexual assault and aggravated robbery in Texas state court in 2012. At trial, the prosecution introduced expert testimony interpreting DNA evidence found at the crime scene. The expert testified that Herod could not be excluded as a contributor to the DNA mixture found on one item at the scene—a white _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 25-40247 Document: 65-1 Page: 2 Date Filed: 05/20/2026 No. 25-40247 t-shirt used to blindfold one of the victims. Several years later, the Texas Department of Public Safety (“DPS”) issued a supplementary report stating that Herod was excluded as a contributor to that DNA mixture under updated interpretation protocols. Finding constitutional errors under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959), the district court granted Herod federal habeas relief under 28 U.S.C. § 2254. See Herod v. Guerrero, No. 15-0338, 2025 WL 1001609 (S.D. Tex. Apr. 3, 2025). We conclude Herod’s claims were procedurally defaulted in state court and he has failed to show prejudice to overcome the default. We REVERSE the district court’s judgment and REMAND for proceedings on the remainder of Herod’s habeas petition. I. In January 2010, armed robbers invaded Alissia and Ronnie Gallagher’s Texas City home. While inside the home, one of the robbers secured codeine and cash from Ronnie, bound his hands with zip ties, blindfolded him with a white t-shirt, and then proceeded to sexually assault Alissia in view of the couple’s two children. In addition to other evidence, the state introduced expert DNA testimony at trial. Clare Browder, a DPS analyst, testified that Herod was excluded as a contributor to DNA mixtures found on almost all the physical evidence left at the scene. For the white t- shirt, Browder opined that Herod could not be excluded as a contributor. The defense called its own expert, who agreed that Herod could not be excluded (as a technical matter) from the DNA mixture found on the t-shirt.1 _____________________ 1 The defense’s expert, Melva Ketchum, also testified that Herod “should be excluded.” Herod emphasizes that her testimony was impeached by her training in veterinary medicine, running of an unaccredited laboratory, and involvement “in the