HRLR
Los Tocayos Carlos
Chapter 15
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All Chapter 15 Footnotes

As Jon Kelly had predicted years before, when Judge Blackmon surprised everyone and appointed the inexperienced Hector De Peña to a capital murder case,103 Anderson's second argument was that Carlos's trial lawyers were incompetent.104

De Peña and Lawrence, Anderson contended, didn't speak to Carlos for months at a time, improperly advised him not to cooperate with the court-appointed psychiatric experts, failed to present available mitigating evidence, including his history of substance abuse,105 and left important arguments out of his first appeal.106

In the middle of making this claim, Anderson added a sentence that was as far as he would go in arguing DeLuna's innocence and Carlos Hernandez's guilt: "Counsel at trial failed to thoroughly investigate an alternative hypothesis concerning an assailant other than [DeLuna] even when provided with a name and location of the assailant and information concerning similarities between [DeLuna's] appearance and the alternative assailant."107 Anderson wasn't even willing to name this "alternative hypothesis . . . assailant."

Anderson apparently conducted no investigation of his own to look for Carlos Hernandez in Corpus Christi. He didn't realize that a convicted convenience store armed robber by that name, with the same height, weight, wavy black hair, and appearance as his client, was then in Corpus Christi police custody awaiting trial for beating, strangling, and knifing a young woman to death, or that this Hernandez was familiar to the Corpus public from the Caller-Times coverage of his arrest.108

As the lawyer told Rose,109 he doubted his client's claim that "some other dude named Carlos" did it. So he decided that the Carlos Hernandez who'd remained unseen at DeLuna's trial would go unnamed in DeLuna's habeas petition.

Two days later, Corpus Christi Judge Walter Dunham, Jr., rejected DeLuna's petition and his request to delay the execution.110 It was Thursday, October 9, 1986. Only six days remained before DeLuna's scheduled execution.

Anderson immediately filed papers making the same arguments to the Texas Court of Criminal Appeals.111

The following Monday, with two days left to go before Texas was required to euthanize Carlos DeLuna, its highest appeals court rejected all of Anderson's requests.112

In most states and most cases, it takes lawyers and state courts three to six years to resolve claims of the sort Anderson made in his state habeas corpus petition.113 In Carlos DeLuna's case, it took six days, including a weekend.

The courts' adverse decisions were in the news. United Press International reported that DeLuna continued to "den[y] that he killed the woman, saying another man wielded the knife. But investigators have been unable to find the man DeLuna says was responsible."114

"I'm at peace with myself and whatever happens," DeLuna is quoted as saying. "I do hope I get a stay, though."115

* * * * *

Carlos's last resort was a habeas corpus petition filed in a federal court—the United States District Court for the Southern District of Texas in Corpus Christi. He couldn't ask the federal court to hear the case before then, due to a legal rule that federal courts may not step in until after a prisoner "exhausts" all avenues in state court.116

Anderson's federal papers made the same two arguments as his state papers had—discriminatory use of the death penalty against defendants charged with murdering non-Hispanic white victims117 and incompetent representation by De Peña and Lawrence.118 Anderson's brief, which claimed that Lawrence's brief on DeLuna's first appeal was "wholly inadequate" because it "consisted of [only] seventeen pages," consisted of thirteen pages.119 Again, Anderson failed to give a name to or substantiate his client's "alternative hypothesis concerning an assailant other than Petitioner."120

* * * * *

See supra Chapter 11, note 18 and accompanying text.

Appl. for Writ of Habeas Corpus and Br.; Appl. for a Stay of Mandate, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986) at 4–5:

Petitioner was denied effective assistance of counsel at trial in violation of his rights under the Sixth and Fourteenth Amendments, United States Constitution, Article 1, Section 3, 3a, 10, 15, and 19. Petitioner will show in evidence adduced that he was denied effective assistance of counsel under the standards of Strickland v. Washington, 466 U.S. 1105, 104 Sup.Ct. 2052, 80 L.Ed. 2d 674 (1984) in the following particulars: (1) Lead counsel at trial only saw and talked to Petitioner twice prior to his trial for this offense. (2) Trial counsel failed to follow up information and investigate thoroughly Petitioner's lengthy history of substance abuse to determine if there was sufficient organicity as a result of substance abuse to mitigate punishment. (3) Counsel at trial failed to thoroughly investigate an alternative hypothesis concerning an assailant other than Petitioner even when provided with a name and location of the assailant and information concerning similarities between Petitioner's appearance and the alternative assailant. (4) Trial counsel failed to adequately investigate an alternative assailant and to use technology such as spectroscopic voice identification techniques on a tape recording of the actual assault and offense to determine whether or not the voice on the tape was that of the Petitioner or another assailant. (5) Trial counsel, all though [sic] being advised of numerous witnesses that this 21 year old Petitioner had to present in mitigation of punishment, failed to put on a single witness at the punishment phase of the trial in mitigation of punishment. (6) Trial counsel failed to preserve the testimony of Petitioner's most important witness although they had been advised that the witness was hospitalized, was near death, and that the testimony of the witness was absolutely critical to the defensive hypothesis of an alternative assailant. (7) Trial counsel instructed Petitioner not to cooperate with court-appointed psychologist and psychiatrists for fear that the evidence would be used against Petitioner. Petitioner would show in this respect that Petitioner's lengthy history of substance abuse, if made known to the psychiatrist and psychologist appointed by the Court to evaluate Petitioner would have produced evidence in mitigation of punishment.

Appl. for Writ of Habeas Corpus and Br.; Appl. for a Stay of Mandate, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986) at 4.

Appl. for Writ of Habeas Corpus and Br.; Appl. for a Stay of Mandate, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986) at 5:

Petitioner was denied effective assistance of counsel on the appeal of his conviction in violation of his rights under the Sixth and Fourteen Amendments, United States Constitution, and Article l, Sections 3, 3a. 10, 15. and 19. Petitioner will show that even if the standards of Strickland v. Washington, 466 U.S. 1105, 104 Sup.Ct. 2052, 80 L.E. 2d 674 (1984), apply to the determination of whether or not counsel was effective on the appeal of Petitioner's cause, Petitioner will show that counsel's brief on appeal, consisting of seventeen pages, was whol1y inadequate and insufficient to effectively present to the Court of Criminal Appeals of Texas all the issues that were present at Petitioner's trial.

Appl. for Writ of Habeas Corpus and Br.; Appl. for a Stay of Mandate, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986) at 4.

See supra notes 37–39 and accompanying text; supra Chapter 6, notes 99–100, 166–171 and accompanying text & Figure 20; supra Chapter 7, notes 176–177 and accompanying text; supra Chapter 8, notes 62–64 and accompanying text; supra Chapter 9, notes 124–138 and accompanying text & Figure 20.

See supra notes 86–88.

Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 9, 1986);

see also Mot. for Stay of Execution, Ex parte DeLuna, No. 16,436–01 (Tex. Crim. App. Oct. 9, 1986) at 3.

Mot. for Stay of Execution, Ex parte DeLuna, No. 16,436–01 (Tex. Crim. App. Oct. 9, 1986) at 4–7.

Order on Pet'r's Mot. for Stay of Execution and Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 16,436–01 (Tex. Crim. App. Oct. 13, 1986) at 1 (describing the procedural history of the case, then concluding without further explanation that "[t]his Court is of the opinion that said motion for stay of execution should be denied and that all relief requested in said application for writ of habeas corpus, which is returnable to this Court under Article . . . be denied").

See James S. Liebman et al., A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It (Feb. 11, 2002), available at http://www2.law.columbia.edu/brokensystem2/index2.html.

United Press International, Full Court Denies Stay of Execution: DeLuna Scheduled to Die, Oct. 14, 1986;

see also John Gonzalez, Texans Await Execution Ruling: Supreme Court to Hear Racial Challenge to Death Penalty, Dallas Morning News, Oct. 14, 1986, at 19A (reporting that the Texas Court of Criminal Appeals and the United States Supreme Court had "refused to grant [DeLuna] a stay on the basis of arguments [of racial discrimination] similar to those of McCleskey [a Georgia inmate whose similar claim was eventually heard and denied in the United States, see supra note 98]. De Luna's [sic] attorneys said they would file an appeal on similar grounds Tuesday with the federal court in Corpus Christi.");

Frank Klimko, State Appeals Court Refuses to Block Texan's Execution, Hous. Chron., Oct. 14, 1986, at 14 ("'I'm tired of this, and I would like to know something,' DeLuna said during a death row interview last week. 'They have never executed anyone on their first date before, but I would hate for them to try to make an example out of me.' . . . DeLuna claims another person killed Lopez and that he was not at the service station at the time of the crime.").

United Press International, Full Court Denies Stay of Execution: DeLuna Scheduled to Die, Oct. 14, 1986.

See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure (6th ed. 2011) at §§ 5.1, 23.3.

Appl. for Writ of Habeas Corpus and Br. and Appl. for Stay of Execution, DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Oct. 10, 1986) at 6.

Appl. for Writ of Habeas Corpus and Br. and Appl. for Stay of Execution, DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Oct. 10, 1986) at 6–9 (arguing that "[l]ead counsel at trial only saw and talked to Petitioner twice prior to his trial for this offense," "failed to follow up information and investigate thoroughly Petitioner's lengthy history of substance abuse to determine if there was sufficient organicity as a result of substance abuse to mitigate punishment," "failed to thoroughly investigate an alternative hypothesis concerning an assailant other than Petitioner even when provided with a name and location of the assailant and information concerning similarities between Petitioner's appearance and the alternative assailant," and failed to present a single witness in the punishment phase of Carlos's trial, despite being advised that the witnesses were prepared to testify to support mitigation of punishment, and that "[c]ounsel's brief on appeal, consisting of seventeen pages, was wholly inadequate and insufficient to effectively present to the [c]ourt.").

Appl. for Writ of Habeas Corpus and Br. and Appl. for Stay of Execution, DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Oct. 10, 1986) at 9;

see Appl. for Writ of Habeas Corpus and Br. and Appl. for Stay of Execution, DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Oct. 10, 1986) at 1–13 (entire contents of Anderson's brief).

Appl. for Writ of Habeas Corpus and Br. and Appl. for Stay of Execution, DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Oct. 10, 1986) at 5.

Chapter 15
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