A month later, on November 10, District Attorney Jones and lawyers from the Texas Attorney General's office in Austin asked Judge Head to "summarily" deny DeLuna's habeas petition. A "summary" denial would keep the judge from holding a hearing where DeLuna could subpoena Carlos Hernandez to appear and testify.138
In their brief, the state's lawyers immediately tripped up Anderson on his claim that DeLuna was a victim of a policy to reserve the death penalty for people accused of killing white Anglos. As was obvious just from her name, the state's lawyers said, Wanda Lopez was Hispanic, not Anglo. Even if such a policy existed—which Anderson hadn't proved—DeLuna couldn't complain about it because it didn't affect him.139
The state's lawyers also exploited an obvious weakness in Anderson's claim of incompetent legal representation: he had no evidence from an investigation of his own to back up the claim. The lawyers pointed out that DeLuna's claim of incompetent counsel required more than proof that the former lawyers did a bad job. DeLuna also had to prove that the result at trial or on appeal probably would have changed if his lawyers had done a better job. Anderson, the state noted, offered no evidence to show that.140
The state ridiculed Anderson's claim that DeLuna's trial attorneys failed to explore an "alternative hypothesis concerning an assailant other than Petitioner," using a word invented by lawyers to mean something merely asserted but never proved. Anderson's claim, the state's lawyers wrote, was "conclusory" and "without factual support."141
"De Luna," the state told Judge Head, offering a less colorful version of Schiwetz's "phantom" argument, "does not identify who the alleged other assailant might have been, nor does he indicate what evidence existed that might have implicated someone else. The contention is simply speculation . . . ." 142
* * * * *
As Carlos DeLuna faced these new difficulties, things were looking up for Carlos Hernandez, in jail in Corpus Christi.
Two days after the Corpus District Attorney's office filed its brief in Carlos DeLuna's case, it got word that Judge Blackmon had appointed a new lawyer—the more formidable Jon Kelly—to represent Carlos Hernandez against the D.A.'s charges that he'd murdered Dahlia Sauceda.143
Kelly set to work filing motions to dismiss the charges against Hernandez unless Ken Botary produced the tape or transcript of his January 1980 conversation with Hernandez. It was after that conversation that Botary had decided to let Hernandez off the hook for killing Sauceda and to pursue Jesse Garza instead.144
On New Year's Eve, Judge Blackmon ordered Hernandez released because the D.A.'s office had procrastinated and never produced the missing evidence.145
On New Year's Day, Carlos Hernandez was back on the front page of the Caller-Times. "Judge Frees Man Charged in Murder," the two-column headline read.146 The article described the crime and the evidence against Carlos Hernandez, including his fingerprints and underwear in the back of Sauceda's van next to her "severely beaten blood-stained body" and his confession to a witness who had recently come forward.147
"Hernandez's release . . . is the only just thing that can be done," Kelly said at the time.148
* * * * *
By late January 1987, when Richard Anderson replied to the state's reasons for throwing DeLuna out of court,149 the lawyer had been on the case for four months,150 had been taken to task by the state's lawyers for not coming up with any evidence to support his arguments,151 had been directed by Judge Head to provide more details,152 and had requested and received two extensions of time to file his response.153 Even with the additional time, Anderson's seventeen-page response reported only a couple of tidbits of new information that he'd uncovered after filing his initial petition.
Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Nov. 10, 1986) at 13–15.
Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Nov. 10, 1986) at 6 ("It appears from her last name that the victim in this case, Wanda Lopez, was Hispanic. DeLuna has offered nothing that would cast doubt on the victim's race, and, thus, cannot claim that he has been the victim of discrimination in the application of the death penalty."; arguing as well that "DeLuna has utterly failed to make any statistical proffer that would warrant the granting of an evidentiary hearing. Instead, he has simply alleged that such evidence will be forthcoming at an evidentiary hearing and requests that the court grant him one.").
Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Nov. 10, 1986) at 7–9, 12 (noting that under the first prong of the governing Supreme Court standard, a prisoner challenging his conviction or sentence based on ineffective assistance of counsel "must demonstrate that counsel's performance was deficient and unreasonable when judged by objective standards . . . [and secondly] that the defense was prejudiced by counsel's deficient performance" and arguing that Anderson had made only "conclusory allegations in support of his claims" and had not "point[ed] to specific deficiencies in counsel's handling of the case. DeLuna has failed in several instances to allege these specific deficiencies"; that Anderson had not "identif[ied] the witnesses who supposedly were available to testify on his behalf nor [had] he indicate[d] what their testimony would have been" and "[a]ssuming, arguendo, that his assertion that lead counsel met with him only twice before trial is true, DeLuna has not shown prejudice" (internal citations omitted); noting that, under the second prong of the controlling legal standard, the prisoner must demonstrate "prejudice," i.e., "that there is a reasonable probability that, but for counsel's errors, the outcome of the appeal would have been different," and arguing, for example, that Anderson merely asserted that Lawrence's brief was too short and did not identify how other steps Lawrence might have taken would have made a difference in the outcome of DeLuna's case: even "[a]ssuming, arguendo, that the brief was not as well written as it might have been, DeLuna has failed to show that the appellate court did not fully consider [DeLuna's best arguments] and decide them correctly" in the process of denying DeLuna's appeal.).
Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Nov. 10, 1986) at 13–14 ("No hearing is required where the petitioner makes only conclusory allegations. . . . DeLuna has made no statistical proffer on his first claim that would entitle him to a hearing in this Court. His allegations of ineffectiveness of counsel are mere conclusory assertions without factual support.") (internal citations omitted).
Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Nov. 12, 1986) at 8 ("DeLuna's contention that his attorneys failed to thoroughly investigate the possibility that someone other than DeLuna committed the offense is a conclusory statement with no factual basis of support. He does not identify who the alleged other assailant might have been, nor does he indicate what evidence existed that might have implicated someone else. The contention is simply speculation and does not show deficient performance on the part of his attorneys.").
Order Appointing an Att'y, State v. Hernandez, No. 86-CR–1032 (Nueces Cty., 117th Dist. Tex. Nov. 13, 1986) at 1 ("It is, therefore, ordered, adjudged and decreed that Pedro P. Garcia be relieved of the appointment to represent Carlos Hernandez. . . . It is, accordingly, ordered that Jon J. Kelly . . . is appointed to represent the said Defendant in this cause.");
see supra Chapter 7, notes 181–186 and accompanying text.
See, e.g., Mot. to Dismiss, State v. Hernandez, No. 86-CR–1032-B (Nueces Cty., 117th Dist. Tex. Dec. 22, 1986) at 2–3 ("Defendant would further show that the State in failing to provide or even attempt to locate various items of physical evidence including but not limited to the alleged knife to have been taken from Carlos Hernandez in December of 1979, the tape recording of Carlos Hernandez'[s] tape recorded conversation with his mother and the transcript of the office conference between Mr. Botary and Carlos Hernandez, willfully ignored this Court's order.");
Order Granting Mot. to Dismiss, State v. Hernandez, No. 86-CR–1032-B (Nueces Cty., 117th Dist. Tex. Dec. 31, 1986) at 1 (granting motion to dismiss and discharging Carlos Hernandez);
see Sandra Forero, Judge Frees Man Charged in Murder, Corpus Christi Caller-Times, Jan. 1, 1987 ("State District Judge Jack Blackmon . . . . said . . . he dismissed the case because of lack of evidence . . . and because so much time had elapsed. . . .");
supra Chapter 7, notes 200–203 and accompanying text.
See Sandra Forero, Judge Frees Man Charged in Murder, Corpus Christi Caller-Times, Jan. 1, 1987.
Sandra Forero, Judge Frees Man Charged in Murder, Corpus Christi Caller-Times, Jan. 1, 1987.
Sandra Forero, Judge Frees Man Charged in Murder, Corpus Christi Caller-Times, Jan. 1, 1987.
Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 23, 1987).
See Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 23, 1987) at 3 ("Petitioner's present counsel did not get involved in Petitioner's case until shortly before Petitioner's scheduled execution date of October 15, 1986, due to Petitioner's court-appointed attorneys on appeal failure to seek an Application for Writ of Certiorari to the Supreme Court of the United States on direct appeal and their abandonment of Petitioner's cause after the direct appeal to the Court of Criminal Appeals of the State of Texas had been affirmed.").
See supra notes 138–142 and accompanying text.
Resp't's Mot. to Expedite, DeLuna v. Lynaugh, No. C–86–234 (S.D. Tex. Feb. 3, 1988) at 1 ("The State filed its motion for summary judgment on or about November 10, 1986, and the court ordered DeLuna to respond to the motion in an order dated December 12, 1986. On or about January 22, 1987, DeLuna filed his response.").
Order Denying Pets. for Habeas Corpus and Stay of Execution, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989) at 2 ("On November 12, 1986, respondent filed a motion for summary judgment. The Court directed DeLuna to respond to the motion within ten days in an order dated December 15, 1986. After obtaining two extensions of time, DeLuna's response was filed on January 23, 1987.").