HRLR
Los Tocayos Carlos
Chapter 15
Page: 17 of 29
Text: A | A | A
All Chapter 15 Footnotes

Carlos DeLuna's appeal to the Fifth Circuit Court of Appeals was all anti-climax, however—a whimper, not a clarion call for either truth or justice.

Anderson's brief was twenty-five pages—half the usual length in a capital case.222 Eight of those pages went to preliminaries223 and five more to an argument not made in any of the earlier appeals,224 which meant the judges weren't even allowed to consider it.225

The Dallas lawyer did not attack the jury's verdict that Carlos DeLuna killed Wanda Lopez. He devoted his eleven-page argument to the claim that James Lawrence and Hector De Peña provided substandard legal representation at the sentencing stage by presenting no mitigating evidence.226

Anderson was forced to spend much of that argument explaining his own deficiencies—why he failed to provide any sworn statements or paper records between October 1986 and June 1988 to support his client's claim, and only did so after Judge Head had already ruled against his client and time had run out.227

Anderson's brief never mentioned Carlos Hernandez or even an "alternative hypothesis . . . assailant." The three judges decided the case without knowing that the capital prisoner whose fate they had in their hands had insisted from the moment of his arrest that police had collared the wrong man.228

* * * * *

While waiting for the Fifth Circuit's decision, Carlos wrote a letter to Vicky's teenage son Noel, the last letter Vicky saved.

"all we have to do is believe in god and everything well be alright you well see what I'm saying Ok?," Carlos wrote his nephew.229

"I hope you are getting passing grades and I hope you do well in school rember school is Very important, so always try to do your best ok?" "Hey when ever y you ant to write and I well write Back to you. Do take care and you be carefull, and pay attention to your mom & Dad the usually are always right ok?"230

* * * * *

The judges began their short, almost offhand, decision rejecting Carlos DeLuna's appeal with a simple declarative sentence: "Appellant, Carlos DeLuna, was convicted of capital murder of a gasoline station clerk during the course of committing a robbery."231

Then, a little further on: "The claims asserted on appeal all revolve around the issue of the adequacy of representation by counsel at the punishment stage of the trial."232

There was no doubt that the jury had arrived at the truth about who committed the gasoline station murder. The only question was whether he deserved to die for that crime.

The decision then noted that Judge Head had indulged "appellant's counsel Anderson" by allowing "various pleadings and delays,"233 and that, even so, Anderson had presented his client's claim that his trial lawyers performed poorly "without details and affidavits."234 It was only after Judge Head had ruled against DeLuna, the court noted, that Anderson "undertook to name the names of family members and friends who would testify and to supply affidavits from them as to appellant's personal conduct with them."235

Under those circumstances, the court ruled, there was "no abuse of discretion" when Judge Head declined to look at the materials that Anderson had belatedly produced.236 All that remained were Anderson's bare allegations, which made "no showing that appellant's counsel fell below accepted standards of competence and conduct . . . ."237

Br. of Petitioner-Appellant, DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir. 1989) at 1–25.

Br. of Petitioner-Appellant, DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir. 1989) at 1–9 (encompassing the Statement of Jurisdiction, Statement of the Issues, Statement of the Case, Summary of the Arguments).

Br. of Petitioner-Appellant, DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir. 1989) at 20–25 (arguing that "The Procedure Provided by the State of Texas in its Failure to Provide Counsel for Indigent Inmates on Death Row and the Procedure as Interpreted by this Court in Regulating Post Conviction Attacks Denies Petitioner/Appellant Effective Assistance of Counsel.").

DeLuna v. Lynaugh, 873 F.2d 757, 760 (5th Cir. 1988) ("This contention was not made to the state courts and . . . was not presented to the district court and is not properly before us for consideration.").

Br. of Petitioner-Appellant, DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir. 1989) at 9–20.

See, e.g., Br. of Petitioner-Appellant, DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir. 1989) at 18–22:

Petitioner/Appellant moved as quickly as possible upon given notice by the court that his pleadings were insufficient . . . . Significant time in developing the McCleskey issue was spent, even after the Supreme Court presumptively laid that issue to rest in its Opinion in McCleskey v. Kemp, 107 S. Ct. 1756 (1987). The limited time and resources of volunteer counsel [sic—counsel was retained and being paid] having been spent on an issue that the Supreme Court laid to rest, the attention was then turned to the claims of ineffective assistance of counsel for failure to develop and investigate mitigating evidence.

See supra notes 82–86, 107–108 and accompanying text; supra Chapter 3, notes 130–131 and accompanying text; supra Chapter 5, note 101 and accompanying text; supra Chapter 11, notes 60–67, 79–82, 121–122, 274–280 and accompanying text; supra Chapter 13, notes 181, 206–210, 340 and accompanying text.

Letter from Carlos DeLuna to Noel Gutierrez (November 10, 1988) at 1 ("I haven't been up to a whole lot, just trying to be cool and hoping one day that we will all be able to be a family again all we have to do is believe in god and every-thing will be alright you well see what I'm saying ok?").

Letter from Carlos DeLuna to Noel Gutierrez (November 10, 1988) at 1.

DeLuna v. Lynaugh, 873 F.2d 757, 758 (5th Cir. 1988).

DeLuna v. Lynaugh, 873 F.2d 757, 758 (5th Cir. 1988) (emphasis added).

DeLuna v. Lynaugh, 873 F.2d 757, 758 (5th Cir. 1988).

DeLuna v. Lynaugh, 873 F.2d 757, 760 (5th Cir. 1988) at 760.

DeLuna v. Lynaugh, 873 F.2d 757, 760 (5th Cir. 1988).

DeLuna v. Lynaugh, 873 F.2d 757, 760 (5th Cir. 1988).}

DeLuna v. Lynaugh, 873 F.2d 757, 759 (5th Cir. 1988) at 759.

Chapter 15
Page: 17 of 29