-
p. 243 "…lock-blade buck knife used to stab Wanda Lopez…"Crime Scene Photograph 25500001, Corpus Christi Police Dep't (Feb. 4, 1983); Crime Scene Photograph 25500002, Corpus Christi Police Dep't (Feb. 4, 1983); Crime Scene Photograph 25500016, Corpus Christi Police Dep't (Feb. 4, 1983); Crime Scene Photograph 25500017, Corpus Christi Police Dep't (Feb. 4, 1983); Crime Scene Photograph 25500018, Corpus Christi Police Dep't (Feb. 4, 1983); Crime Scene Photograph 25500027, Corpus Christi Police Dep't (Feb. 4, 1983); Joel Infante, Corpus Christi Police Identification Technician, Field Investigation Report (Feb. 4, 1983) ("The items mentioned, a knife and pack of Winstons cigarettes were first photographed where they were found.").p. 243 "…the Winston pack the customer had left on the counter…"p. 243 "…beer cans that George Aguirre saw him drinking from…"Crime Scene Photograph 25500025, Corpus Christi Police Dep't (Feb. 4, 1983); Crime Scene Photograph 25500026, Corpus Christi Police Dep't (Feb. 4, 1983); Joel Infante, Corpus Christi Police Identification Technician, Field Investigation Report (Feb. 4, 1983) ("Sgt. Fowler asked me to process two Miller Lite beer cans that he found out the back of the gas station on the grass. He believed that maybe in some way this were [sic] handled by the person who committed the robbery. These were processed and some partial prints were obtained from one of the cans, and this turned in to latent print examiner."); Steve Fowler, Corpus Christi Police Sergeant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 46 ("The only item that I can recall was some beer cans that were found back behind the station . . . . He [Infante] photographed the beer cans at the scene where they were at and after he did that, well, then, I stuck my fingers in the drinking holes [of the beer cans] and picked them up, took them to the front and laid them by the [front] door [of the gas station]."); see supra Chapter 10, note 140 and accompanying text.p. 243 "…probably broke off during the struggle."See Crime Scene Photograph 25500005, Corpus Christi Police Dep't (Feb. 4, 1983); Crime Scene Photograph 25500008, Corpus Christi Police Dep't (Feb. 4, 1983); Crime Scene Photograph 25500015, Corpus Christi Police Dep't (Feb. 4, 1983); Crime Scene Photograph 25500019, Corpus Christi Police Dep't (Feb. 4, 1983); Crime Scene Photograph 25500028, Corpus Christi Police Dep't (Feb. 4, 1983); Crime Scene Photograph 25500030, Corpus Christi Police Dep't (Feb. 4, 1983); Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 5, 1983) (describing discovery of possible physical evidence at the crime scene: "A cigarette butt, no distinguishing brand on it, found on the floor also behind the counter—laying close to a calendar near a pool of blood. . . . Retrieved at 9:55 p. m. Evidence tag # 40149.");p. 243 "The court granted the request."Mot. to Withdraw Exs., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 22, 1983); Order Granting Mot. to Withdraw Exs., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 22, 1983); For the version of this Order that is signed by the judge, see Nueces County District Court Clerk’s File from Indictment to Sentence at 9–10.p. 243 "Instead, he twice identified…as a 'phantom.'"List of State's Exs., Attached to Mot. to Withdraw Exs., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 22, 1983) ("SX 39 Pay stub for Carlos Hernandez . . . SX 38 Payroll check for Carlos Hernandez"); see infra Figure 15.1.p. 243 "In 2004…hoping to perform DNA tests."See supra Chapter 11, note 256 and accompanying text; see also James Liebman's Notes on Interview with Bill May, Corpus Christi Criminal Defense Attorney and Former Assistant District Attorney (July 13, 2004) at 1 ("When [evidence] comes back [from the D.A.'s office to the court], put [by court] it in closed file in clerk's office. If didn't go [back] up to court, it is [still] in the DA's office.").p. 243 "Court officials produced…the D.A.'s office."Order Granting Mot. to Withdraw Exs., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 22, 1983); For the version of this Order that is signed by the judge, see Nueces County District Court Clerk’s File from Indictment to Sentence at 9–10.p. 243 "When the investigators looked for…DeLuna evidence."See supra Chapter 11, notes 259–265 and accompanying text.p. 244 "Twenty years…earlier in the Sauceda case."See supra Chapter 7, notes 199–203 and accompanying text.p. 244 "The next Tuesday…for representing DeLuna."Order Granting Statutory Att'y Fee for James Lawrence, Texas v. DeLuna, 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 26, 1983) at 1.p. 244 "A month later Hector de Pena collected his $4,500."Order Granting Statutory Att'y Fee for Hector De Peña, Jr., Texas v. DeLuna, 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Aug. 24, 1983) at 1.p. 244 "His new home was the Ellis Unit near Huntsville, Texas…"Reception of Carlos DeLuna at Ellis Unit of the Texas Department of Corrections (July 26, 1983) at 1; see also James Lawrence, Aff. (Aug. 8, 1983) at 1 ("Carlos De Luna is presently incarcerated in the Ellis Unit of the Texas Department of Corrections . . .").p. 244 "…legally sound enough to permit them to be executed."See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 9.1 (6th ed. 2011) (describing the process).p. 244 "On average across the United States, the appeals process takes thirteen years."See Tracy L. Snell, Bureau of Justice Statistics Tables, Capital Punishment 2009 (Dec. 2010) at 19, Table 18, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cp09st.pdf (indicating that the average number of years under sentence of death prior to execution as of December 2009 nationwide is 12.7 years). Archived at: http://perma.cc/WY3W-PVBU. See also James S. Liebman & Peter Clarke, Minority Practice, Majority's Burden: The Death Penalty Today, 90 Ohio St. J. Crim. Law 255, 300 (2011) ("Reversals at [the Death Row stage] occurred on average about thirteen years after the prisoner was sentenced to die").p. 245 "'Bring our brothers…all of you'll can come.'"Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (July 27, 1983) at 1.p. 245 "'I Don't want to Die…All I can say is bye Right.'"Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (Aug. 9, 1983) at 1.p. 245 "And then a month later…granting of a new trial…"See Mot. for a New Trial, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Aug. 9, 1983) at 1; First Am. Mot. for a New Trial, Texas v. DeLuna, 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 12, 1983) at 2; Judgment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. at Sept. 12, 1983) at 3; see also (Appl. for Subpoena of Estella Flores Jimenez, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 9, 1983) at 2 (subpoenaing juror to testify at the new-trial hearing about whether her impartiality was adversely affected by a robbery occurring in her presence during the trial);p. 245 "'I am REALLY SeRious About this Matter Vicky.'"Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (Sept. 17, 1983), at 1–2.p. 245 "Not long after…she had coverd."James S. Liebman's Notes on Interview with Linda Carrico, Corpus Christi Newspaper Reporter (Sept. 2004) at 1 ("One issue I was interested in was death sentences imposed in Corpus Christi. I set up an appointment to interview the [Corpus Christi] inmates on death row. Most of the time these people had never testified at trial, so I wanted to interview them. I would get permission from the prison, but most of the time the inmate wouldn't come out and talk to me. One of the few to come out and talk to me was Carlos DeLuna.").p. 245 "'He told me it was strictly'…out-of-town investigators."James S. Liebman's Notes on Interview with Linda Carrico, Corpus Christi Newspaper Reporter (Sept. 2004) at 1.p. 245 "'Looked like a mess,' she recalled."James S. Liebman's Notes on Interview with Linda Carrico, Corpus Christi Newspaper Reporter (Sept. 2004) at 1.p. 245 ""It was the same…big transformation.'"James S. Liebman's Notes on Interview with Linda Carrico, Corpus Christi Newspaper Reporter (Sept. 2004) at 1.p. 246 "'He didn't really understand…to execute him.'"James S. Liebman's Notes on Interview with Linda Carrico, Corpus Christi Newspaper Reporter (Sept. 2004) at 1.p. 246 "When Boudrie came and DeLuna…on death row."Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter in Dallas, Texas (Feb. 28, 2005) at 01:43:40–01:46:00:
Carlos was really cocky throughout his trial, and that didn't help him either. He was just cocky. When you'd watch—We'd go down every day to watch him coming through the tunnel. They have a tunnel from the jail to the courthouse. We could go down, and there were three little windows, one from each camera from each station. We'd get our spot, and we'd get him coming down each day. You really couldn't get any sound, but it was the only video we could really get of him. He would swagger every day down the hall. He would talk and joke, and be talking with the guard that was escorting him. He didn't look like someone that was remorseful, facing this potentially life-ending ordeal in court. He just seemed like a—I can't think of the best way to describe it. But anyway, he was different back then as far as his demeanor, [and] he was kind of cocky.
Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter in Dallas, Texas (Feb. 28, 2005) at 01:46:00–01:47:55 ("Of course, the first time I met him on Death Row, he was much more subdued. He had found God, and I said, 'Oh, yeah, I believe that.' But he really was so much more subdued, so much calmer in his demeanor. He didn't seem terribly anxious. I think he was confident that his appeals were going to work for him, I guess.")p. 246 "'He had found God'…rolling her eyes."See supra note 25.p. 246 "'But he really was…calmer in his demeanor.'"See supra note 25.p. 246 "He was confident…going to work for him."See supra note 25.p. 246 "She read a portion…'on Death Roll.'"Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter in Dallas, Texas (Feb. 28, 2005) at 01:46:00–01:47:55:After that first encounter, he sent me a card that he made. (holds up card with a picture of a rose on the front) He sent me this card and he said, (reads) "When I first came to prison, then when I ended up on Death Roll." He didn't even know he was on Death Row. He was on Death Roll, R-O-L-L, to him. So I thought, when I got this card, I started thinking, someone like him, he never had a chance. He didn't have much of a chance in life, obviously. When you heard his background and the type of family life he came from, it was so far removed from my life. It was hard for me to fathom. I really tried to put myself in his shoes and think a little bit more about what it was like to be Carlos DeLuna and what he had to face in life versus what my lot in life is. I thought, he's not very educated, here he is, he winds up here, and he doesn't even know where he is.
p. 246 "'He didn't even know'…shaking her head."See supra note 29.p. 246 "'He was on Death Roll…where he is.'"See supra note 29.p. 246 "'I started thinking…what he had to face.'"See supra note 29.p. 246 "…'a figment of Carlos DeLuna's imagination'…"James Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4–5:This was one of my first trials. My wife helped me. She couldn't understand how I could fight him [prosecutor Schiwetz] on the case inside the court, then go have a cup of coffee with Schiwetz afterwards. She was very mad at him. [Investigator asks why?] Because she knew CH [Carlos Hernandez] existed and couldn't believe Schiwetz would argue he didn't exist. For HDP [Hector De Peña, Jr.], it was just doing a job. It wasn't a personal with Schiwetz. Comes back to this later: My wife was peeved. That prosecutors said CH was figment of CDL's [Carlos DeLuna's] imagination; the 'phantom' comment. She knew there was a real person. She was involved. She listened to the 911 tape with him; motivator to him on a big case.
p. 246 "…coffee with his adversary during a break."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 11:59:06–12:00:00 ("And at one point, as this matter was reaching a conclusion—I don't know if it was after the jury was out—Steve made an offer to have a cup of coffee or something, and my wife didn't understand how the relationship in court could suddenly change once you walked out the door."); James Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4–5.p. 247 "Even after the trial ended…with Schiwetz."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:24:50–12:06:05 ("You're advocates for your client, but once you walk out of there you can still talk to each other and have a cup of coffee.").p. 247 "Years later…date of the conversation."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:24:50–12:26:05 ("[T]he time frame is not clear because so much time has passed since then.").p. 247 "In the photograph…for murdering Dahlia Sauceda."See Acquitted Man Hopes Arrest of Another Man Will Help Clear his Name, Corpus Christi Caller-Times, July 25, 1986, at 3A ("Jesus Garza . . . was acquitted of murder seven years ago in a case that was revived yesterday with the arrest of Carlos Hernandez (photograph at right), who was escorted to the Nueces County Jail by Corpus Christi police detectives Paul Rivera (left) and Eddie Garza."); Libby Averyt, City Man Is Jailed in 7-Year-Old Murder Case,Corpus Christi Caller-Times, July 25, 1986, at 1A, 18A (reporting that Carlos Hernandez "was arrested yesterday in connection with the brutal slaying seven years ago of a 27-year-old woman who was found with an 'X' carved in her back."); see also supra Chapter 7, notes 176–177 and accompanying text & Figure 7.2 (photograph of Carlos Hernandez being arrested by Paul Rivera and Eddie Garza).p. 247 "Hernandez committed…to Diana Gomez."See supra Chapter 7, notes 150–163 and accompanying text.p. 247 "The photo illustrated…front-page news."Libby Averyt, City Man Is Jailed in 7-Year-Old Murder Case,Corpus Christi Caller-Times, July 25, 1986 at 1A, 18A (reporting that Carlos Hernandez was "yesterday arrested . . . in connection with the brutal slaying seven years ago of a 27-year-old woman who was found with an 'X' carved in her back.").p. 247 "By then, De Pena had fought through his financial woes…"See supra Chapter 11, notes 33–40 and accompanying text.p. 247 "…elected judge, like his father."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 11:59:06 ("I took the bench in January of '87. Remained on the bench for 16 years as Presiding Judge of County Court Two. And currently serving as an assigned judge for the state of Texas."); Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21, 07:17:24 ("[Hector De Peña, Jr.] was the son of a judge. He was having some difficulty making ends meet. . . . Hector needed some help and they appointed him to the [DeLuna] case; "His [De Peña's] dad was a judge, a sitting judge at that point [1983].").p. 247 "James Lawrence handled the first round of appeals himself."p. 247 "Schiwetz had left…a private law firm."See http://www.mediation.com/memberprofile/steve--schiwetz-78401-8c.aspx (providing biographical information about Steven Schiwetz: "Assistant City Attorney, City of Amarillo, 1977–1978. Assistant District Attorney: Potter County, 1978–1980; Nueces County, 1981–1984. Shareholder, Meredith, Donnell & Abernethy, 1984–1999," after which Schiwetz opened up his own office). Archived at: http://perma.cc/9E3Q-DSA7.p. 247 "The two grabbed a cup of coffee at the courthouse."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:27:40 ("[L]ater on, while having coffee at the courthouse, I'd had a conversation with Mr. Schiwetz relating to this matter [the Wanda Lopez killing].").p. 247 "It was in connection with…her baby close by."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:26:49–12:29:00:Q. I'll read you my notes: "In the aftermath of the case, Mr. de Peña was discussing the case with Steve Schiwetz. Schiwetz recollected a woman found in a van with the child still alive under her. Some indication that Carlos Hernandez committed that crime; they were never able to tie him to it. Mr. De Peña remembers this [conversation with Schiwetz] occurring within the first year following the trial. It never really came up until afterwards in [that] coffee shop conversation. The killing of the woman was several years prior to the Shamrock killing." Is this consistent with your— A. Correct. Q. Would you describe that conversation that you had with him [Steve Schiwetz]? A. It seemed, and the time frame is not clear because so much time has passed since then. But in my earlier conversation, it seemed to me that, later on, while having coffee at the courthouse, I'd had a conversation with Mr. Schiwetz relating to this matter. Apparently, at some point in time, the name Carlos Hernandez came up, that might have been involved in the killing of a young mother that happened some years prior to the Shamrock killing. But they were never able to tie Carlos Hernandez to that killing, and the fact that it might have been the same Carlos Hernandez who had been involved in the Shamrock incident.
p. 247 "De Pena recalled…'the Shamrock incident.'"Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:26:49–12:29:00; see also James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Jan. 21, 2005) at 1 (recalling a recent conversation with Steven Schiwetz ("SS") in late 2004 or early 2005):SS asked JK [Jon Kelly] why he was involved [in talking to the out-of-town investigators] and JK brought up Carlos Hernandez. He said SS immediately remembered that JK had represented a CH [Carlos Hernandez] in the case against Bill May (the 1986 prosecution [of Hernandez for the Dahlia Sauceda murder]) and also the later (Dina Ybanez) assault [see infra Chapter 17, notes 41–42, 51–79 and accompanying text], but SS [said] that there were many Carlos Hernandez's in CC [Corpus Christi] ("How many Carlos Hernandez are there in CC") and did not concede to JK that he knew that this was (possibly? likely?) the same CH as had come up in the [Wanda Lopez] case.
p. 248 "Retired Judge Moore…in October of that year."Linda Carrico, City Man Gets Execution Date for '83 Slaying, Corpus Christi Caller-Times, July 24, 1986, at 1A:DeLuna lost [a second chance at life] yesterday when he was sentenced to die by lethal injection before sunrise on Oct. 15. . . . Visiting District Judge Wallace "Pete" Moore of Houston set DeLuna's execution date at a hearing in the 94th District Court in Corpus Christi. DeLuna's sentencing came a month after the Texas Court of Criminal Appeals in Austin overruled all points of appeal raised by DeLuna and his attorney, James Lawrence. DeLuna is the second of three death row inmates from Corpus Christi to be scheduled for execution this year.
p. 248 "'DeLuna, now 24…conviction and death sentence.'"Linda Carrico, City Man Gets Execution Date for '83 Slaying, Corpus Christi Caller-Times, July 24, 1986 at 1A, 16A.p. 248 "'However, repeated attempts…were unsuccessful.'"Linda Carrico, City Man Gets Execution Date for '83 Slaying, Corpus Christi Caller-Times, July 24, 1986 at 1A, 16A.p. 248 "Up to that point…in his first appeal."See Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 19:59:44–20:02:58:I know my brother couldn't commit such a crime that they say that he did. I know that dead in my heart that he couldn't commit such a crime. And I feel horrible that I could not help him in any way. I did not understand any of the laws. I did not understand anything they were saying in the trial. And every person that I spoke to said he committed this crime, would not give him a chance. And I know he didn't commit this crime, I know he didn't. And even though we hired an attorney to help him. They even said he did this crime. They never gave him a chance.
Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:30:42–20:32:34:My mom passed away in August of '83. I saw her three days before she died. And she did ask me one thing—she didn't ask any of the other siblings. But she did ask me, because she knew Carlos and I were very close. She did ask me. She said, "I want you to do something for me." I asked her, "What's that?" "Promise me you'll always look out for Carlos, promise me that." I told her, "Ok, I'll look after him." And I couldn't help him. I did not know how to help him. And I know he didn't commit this crime. And I blame myself because I wasn't educated enough to learn about all these words they were saying in the trial, and the paperwork. I didn't understand it. And I believed the attorneys, what they said as far as, he was underneath the truck, and this and this and that. But I knew in my heart that Carlos did not commit this crime. I knew it.
See also infra note 81.p. 248 "She felt that even…ihe was guilty."Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna in Houston, Tex. (Feb. 26, 2005) at 19:59:44–20:02:58 ("And I know he didn't commit this crime, I know he didn't. And even though we hired an attorney to help him. They even said he did this crime. They never gave him a chance.").p. 248 "It claimed that Carlos…was too ill to testify."Def.'s First Am. Mot. for New Trial, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 7, 1983) at 1 ("In support of said motion the Defendant would show and allege: . . . That said witness,[DeLuna's mother] was a material character witness and that the Defendant was not able to safely go to trial without this witness' testimony.").p. 248 "That was true enough…in the courtroom."See supra Chapter 14, notes 30–37 and accompanying text.p. 248 "Judge Moore…request for a new trial."Judgment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 12, 1983); Def.'s First Am. Mot. for New Trial, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 7, 1983) (motion filed Aug. 9, 1983, amended Sept. 12, 1983, and "overruled in its entirety" Sept 12, 1983).p. 248 "Carlos…lawyers were not helping him."Def.'s First Am. Mot. for New Trial, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 7, 1983) at 2; Mot. for New Counsel, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 17, 1983) at 1 ("To the Honorable Judge of Above said court: Now Comes Carlos DeLuna, Defendant in the Above Styled And Numbered cause, who makes and Files this his motion and will show The court the Following: I. Records will Reflect that the Attorney of Record For the Defendant is Mr. Hector Depena Jr. II. Conflict of interest and the Relationship of Client And Attorney Can Not be Reached, therefore, the Defendant can not go safely to trial and have this said Attorney prepare his defense."); see supra Chapter 11, notes 146–148 and accompanying text.p. 249 "For the second time…let him represent himself."Mot. to Disqualify Counsels and for Appellant to Proceed by Himself as Counsel, Texas v. DeLuna, 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 12, 1983): [T]his court in the interest of justice should disqualify counsel and permit the appellant to represent himself. . . . [I]t has been irrevocably made clear that the appellant does not want the court appointed lawyer [Hector DePena, Jr.] to represent him, that there is friction between the counsel and appellant, due to the counsel misconduct that the appellant would rather now represent himself . . . the courts have not only the supervisory power but also the duty and responsibility to disqualify counsel for unethical conduct prejudicial to his client. . . . The Disqualification of [the] attorney . . . is required . . . because said counsel is not representing his client competently, nor zealously within the bounds of the law.p. 249 "Two months later…attorney to replace De Pena."Letter from Carlos DeLuna, Defendant in Killing of Wanda Lopez, to Judge Dunham (Nov 17, 1983), Nueces County Court records at 10 of 73:I would like to request If possible that you could appoint another attorney in my defense. At this moment my attorney is Mr. James Lawrence. I had two attorneys but the other attorney, Mr. De Pena Jr. was not doing nothing to help me so I filed a motion to have Mr. De Pena remove from handling my appeal. I would like to keep Mr. Lawrence but also I would like for you to appoint another attorney on my behalf. I wouldn't be asking you for this if my case wasn't this bad. At the moment I am at Ellis unit on death row and I feel I should have at least two attorneys handling my appeal. I also filed a motion to have the transcripts + statements of facts to me. I would like to know if they are ready.
p. 249 "The court assigned Lawrence…appeal by himself."Order Appointing Att'y James Lawrence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 12, 1983) at 1; Letter from Oscar Soliz, District Clerk, to James Lawrence, Trial Lawyer for Carlos DeLuna (Jan. 6, 1984) at 1 (stating to Mr. Lawrence that "the Court has approved the [transcription of the trial] record" and "advis[ing] that [James Lawrence] ha[s] thirty (30) days from this date to prepare and file [the] brief for the Court of Appeals").p. 249 "'I am very happy I got moved Away From There.'"Letter from Carlos DeLuna, Defendant in Killing of Wanda Lopez, to Vicky Gutierrez, Half-Sister of Carlos DeLuna (Jan. 21, 1984).p. 249 "For his good behavior…lower security classification."Unit Classification Review Form for Carlos DeLuna, Texas Dep't of Corrections (Apr. 3, 1984) at 1 (classifying DeLuna under the "death row work program").p. 249 "Even after being caught…eligibity to work."Disciplinary Report, Texas Dep't of Corrections, (May 14, 1984) (noting officers observed "inmates DeLuna, Carlos [and another] sniffing glue"); Disciplinary Hr'g Record, Texas Dep't of Corrections (May 16, 1984) (imposing penalty of "solitary confinement" but "no forfeiture" of job status).p. 249 "'So what happen?'"Letter from Carlos DeLuna, Defendant in Killing of Wanda Lopez, to Vicky Gutierrez, Half-Sister of Carlos DeLuna (May 24, 1984).p. 249 "In James Lawrence's brief…in March 1984…"Br. of Appellant, Carlos DeLuna, DeLuna v. Texas, No. 69,245 (Tex. Crim. App. Mar. 2, 1984) at 25.p. 250 "Lawrence also argued…'future dangerousness' question."Br. of Appellant, Carlos DeLuna, DeLuna v. Texas, No. 69,245 (Tex. Crim. App. Mar. 2, 1984) at 1–2, 4, 6.p. 250 "Two years later…rejected all of Lawrence's complaints."DeLuna v. State, 711 S.W.2d 44, 45 (Tex. Crim. App. June 4, 1986) ("Appellant [DeLuna] raises seven grounds of error. We will affirm.").p. 250 "The juror who'd been robbed…against De Luna."DeLuna v. State, 711 S.W.2d 44, 49 (Tex. Crim. App. June 4, 1986) ("Appellant [DeLuna] raises seven grounds of error. We will affirm.").p. 250 "Moore had likewise made…more discussion."DeLuna v. State, 711 S.W.2d 44, 48 (Tex. Crim. App. June 4, 1986) ("Appellant [DeLuna] raises seven grounds of error. We will affirm.").p. 250 "'CARLOS DE LUNA…CARLOS DE LUNA.'"Sentence After Mandate, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 23, 1986) at 1.p. 250 "It was this order…murder of Dahlia Sauceda."See supra notes 47–49 and accompanying text.p. 250 "With an execution date…represent her brother."Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:55:50–20:56:22 (discussing how "[Rose] went to the[] lawyers, [and] paid [her] money . . . to try to get them to help").p. 250 "At that time…specialized in capital appeals."Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:23:27.p. 250 "Rose chose Richard Anderson…proving his innocence."Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 19:59:44–20:02:58; see Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:24:12–02:26:10:Rose Rhoton and Brad Rhoton came to my office. We discussed the situation. I encouraged them to not even do this, because I was absolutely sure it would not succeed. But they felt, for the family's sake, that they needed to do everything that was possible. So I agreed to represent him. This was a successor writ, and, as you know, with successor writs there is very, very little that can be legitimately raised. I went down and talked to him, briefly, in T.D.C. [Texas Department of Corrections.] Went down to talk to a bunch of clients there, and he was one of them. Primarily addressing the status of his case: where he was, what was involved, what we could do, what we could not do, what the chances of success—if any—were, etcetera. I then prepared the documents and filed them. We got into federal district court. The judge did not want to have a hearing on the issue at all. We ended up doing a telephone hearing, conference. It was very late in the day, there was already a death sentence [i.e., date set for an execution] . . . that starts the clock. So by the time I got in to this, there was already a death sentence set.
p. 250 "Anderson didn't want…an innocence claim."Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:23:27–02:24:12 ("Richard [Anderson] called me and said that there was some people in his office who were looking for someone to work on a capital writ out of the Gulf Coast area, Corpus area, and that he didn't want to do it, and that it was a successor writ. I told him I didn't want to do it either, but he persuaded me to at least talk to the people.").p. 250 "Living hundreds of miles…Carlos De Luna was innocent."Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:23:27–02:24:12; Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:32:36–20:34:20:A. [Carlos] told me he didn't do it. I asked him, "Carlos, did you do this?" I asked him when he was in Death Row. I asked him, "Did you do this?" He said, "No, I didn't do it. If you would just go to Corpus, this is where this guy lives. His name is Carlos Hernandez." He committed the crime. Manuel, my older brother, knows this Carlos Hernandez. I kept saying that over and over to the attorney, I kept saying that over and over, and they were saying that that was a lie, there was no Carlos Hernandez, that they hired private investigators. There was no Carlos Hernandez, it was a made-up name, there's no such thing. Q. Which lawyers told you that, the lawyers that represented Carlos in trial, the ones that you hired later on? A. Yes, represented Carlos in trial, and the ones we hired [later], told me that this was just a made-up name. There was no Carlos Hernandez. Nothing, nothing, nothing.
p. 251 "He didn't think…he told Rose so."Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:24:12–02:26:10 ("Rose Rhoton and Brad Rhoton came to my office. We discussed the situation. I encouraged them to not even do this, because I was absolutely sure it would not succeed.").p. 251 "Desperate for a lawyer…he eventually agreed."Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:24:12–02:26:10 "[Rose and Brad Rhoton] felt, for the family's sake, that they needed to do everything that was possible. So I agreed to represent him.").p. 251 "In October 1986…innocence was baseless."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) (sent by Richard Anderson to Judge Dunham and copied to John Grant Jones) at 4.p. 251 "At the time…for killing Dahlia Sauceda."See supra Chapter 7, notes 176–179 and accompanying text.p. 251 "Kenneth Botary…first trial for the Sauceda murder."p. 251 "Yet, aside from Carlos…Hernandez's existence."p. 251 "Her mother had made her promise…not doing it."Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:30:42–20:34:20:A. My mom passed away in August of '83. I saw her three days before she died. And she did ask me one thing—she didn't ask any of the other siblings. But she did ask me, because she knew Carlos and I were very close. She did ask me. She said, "I want you to do something for me." I asked her, "What's that?" "Promise me you'll always look out for Carlos, promise me that." I told her, "Ok, I'll look after him." And I couldn't help him. I did not know how to help him. And I know he didn't commit this crime. And I blame myself because I wasn't educated enough to learn about all these words they were saying in the trial, and the paperwork. I didn't understand it. And I believed the attorneys, what they said as far as, he was underneath the truck, and this and this and that. But I knew in my heart that Carlos did not commit this crime. I knew it. Q. What did he tell you? A. He told me he didn't do it. I asked him, "Carlos, did you do this?" I asked him when he was in Death Row. I asked him, "Did you do this?" He said, "No, I didn't do it. If you would just go to Corpus, this is where this guy lives. His name is Carlos Hernandez." He committed the crime. Manuel, my older brother, knows this Carlos Hernandez. I kept saying that over and over to the attorney, I kept saying that over and over, and they were saying that that was a lie, there was no Carlos Hernandez, that they hired private investigators. There was no Carlos Hernandez, it was a made-up name, there's no such thing. Q. Which lawyers told you that, the lawyers that represented Carlos in trial, the ones that you hired later on? A. Yes, represented Carlos in trial, and the ones we hired [later], told me that this was just a made-up name. There was no Carlos Hernandez. Nothing, nothing, nothing.
p. 251 "I asked him, 'Did you do this?'"See supra note 81.p. 251 "'He committed the crime.'"See supra note 81.p. 251 "Rose…knew Carlos Hernandez."See supra note 81.p. 251 "They'd hung out at the Casino Club."p. 251 "'I Kept saying that'…with Anderson later."See supra note 81.p. 251 "'There was no Carlos Hernandez…there's no such thing.'"See supra note 81.p. 251 "'Nothing, nothing, nothing.'"Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:30:42–20:34:20; see also Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:47:40–23:50:34:A. But he fought, Carlos [DeLuna] fought all the way to the end. He maintained his innocence all the way to the end. Most killers don't. . . . Because he didn't do it. He didn't believe he did it. He believed he did not do it. And I believe he didn't do it. I believe that this other Carlos Hernandez did. And they just didn't want to listen to him. He said it numerous times. I don't know if he was telling the right people, or his lawyers didn't do what they could for him. I don't know. He really didn't mention . . . He did mention that his lawyers were doing this hab— Q. Habeas corpus. A. Habeas corpus. I don't know what that is. But that he was doing that, his lawyers, Carlos DeLuna's lawyers were doing that. And I know that he did tell me, "They just don't want to listen. I tell them this. I give them all the information. They just don't want to listen." Q. What did he tell them? A. He gave up the name. He gave up the fact that Carlos Hernandez was the one that went into the store. He had nothing to do with this crime. He only ran because he, you know, he just got out of prison. He was on probation. He didn't want anything to happen to him.
p. 252 "'And every person…would not give him a chance.'"Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 19:59:44–20:02:58:I know my brother couldn't commit such a crime that they say that he did. I know that dead in my heart that he couldn't commit such a crime. And I feel horrible that I could not help him in anyway. I did not understand any of the laws. I did not understand anything they were saying in the trial. And every person that I spoke to said he committed this crime, would not give him a chance. And I know he didn't commit this crime, I know he didn't. And even though we hired an attorney to help him. They even said he did this crime. They never gave him a chance.
p. 252 "'They never gave him a chance.'"Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 19:59:44–20:02:58.p. 252 "Anderson also asked…to occur eight days later."Letter from Richard A. Anderson to Judge Dunham (Oct. 7, 1986) at 1; 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) (sent by Richard Anderson to Judge Dunham and copied to John Grant Jones) at 6–7; Appl. for Stay of Execution, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986) at 1.p. 252 "It is an ancient method…imprisonment is legal."See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure (6th ed. 2011) at 2.1–2.4.p. 252 "First, Anderson accused…ethnicity of murder victims."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) (sent by Richard Anderson to Judge Dunham and copied to John Grant Jones) at 3–4:Prosecutorial discretion in determining which cases in which to seek the death penalty is discriminatory based upon the race of the victim in violation of the defendant's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments, United States Constitution and Article 1, Sections 3, 3a, 10, 15, and 19. Petitioner is an hispanic [sic] male. The victim of the offense as listed by autopsy records is white female. Evidence will be adduced that will show prosecutions in Nueces County, Texas, in which the decision to seek the death penalty is invoked is based upon the race of the victim to a statistical certainty.
p. 252 "Those prosecutors…killing a black or Hispanic victim."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) (sent by Richard Anderson to Judge Dunham and copied to John Grant Jones) at 3–4.p. 252 "That, Anderson urged, was illegal discrimination."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) (sent by Richard Anderson to Judge Dunham and copied to John Grant Jones) at 3–4.p. 252 "'Recent studies…resulted in the death penalty.'"Appl. and Br. in Support of Stay of Execution, DeLuna v. McCotter, No. 86-cv–234 (5th Cir. Oct. 13, 1986) at 10 ("Recent studies of the death penalty practice by Texas prosecutors shows that of the 389 capital murder cases filed in the State of Texas where the victim was black or Mexican-American, only 2.3% resulted in a death sentence, whereas in 1501 capital cases filed in which the victim is caucasion [sic], 10.7% resulted in the death penalty.").p. 252 "Anderson claimed…'is a white female.'"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 3.p. 252 "Legal claims like this…country at the time."See McCleskey v. Kemp, 481 U.S. 279, 299 (1987) (rejecting such claims).p. 253 "At the time…sometimes reporting both."See, e.g., infra notes 155–156 and accompanying text.p. 253 "The autopsy…didn't report her ethnicity."See Autopsy Findings of Wanda Lopez, Joseph Rupp, Nueces County Medical Examiner (Feb. 5, 1983) ("The body is that of a well developed, well nourished, adult white female, measuring 63' in length, weighing an estimated 170 pounds, and appearing the recorded age of 24 years.") (emphasis added); see Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. Jan. 22, 1987) at 6 (acknowledging that the autopsy report does not "recognize a separate category for race in terms of Hispanic"—in other words that it refers to race and has no categorization by ethnicity);infra note 156 (discussing Wanda Lopez's death certificate which reports her ethnicity as "Spanish origin . . . Mexican").p. 253 "As Wanda's common Spanish surnames…Carlos De Luna was."p. 253 "He probably was making the same…claim into De Luna's case."Cf. Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. Jan. 22, 1987) at 6:Petitioner's case provides an excellent example of [a situation where it is difficult to compile the statistics needed for a McClesky challenge] in that Respondent in his Motion for Summary Judgment states that the victim in Petitioner's case, Wanda Lopez, was Hispanic, and because of the hispanic [sic] surname could not be categorized as a member of the white race. Attached to Petitioner's Response to Respondent's Motion for Summary Judgment is the autopsy protocol and death certificate involved in this case, both of which list the race of the victim, Wanda Lopez, as white.
p. 253 "As Jon Kelly had predicted…a capital murder case…"See supra Chapter 11, note 18 and accompanying text.p. 253 "…Carlos's trial lawyers were incompetent."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.
p. 253 "…including his history of substance abuse…"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.p. 253 "…left important arguments out of his first appeal."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.
p. 253 "In the middle of making this claim…'and the alternative assailant.'"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.p. 254 "He didn't realize…the Caller-Times coverage of his arrest."p. 254 "As the lawyer told Rose…"See supra notes 86–88.p. 254 "Two days later…request to delay the execution."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.p. 254 "Anderson immediately filed papers…Texas Court of Criminal Appeals."Mot. for Stay of Execution, Ex parte DeLuna, No. 16,436–01 (Tex. Crim. App. Oct. 9, 1986) at 4–7.p. 254 "The following Monday…rejected all of Anderson's requests."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").p. 254 "In most states…habeas corpus petition."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. Archived at: http://perma.cc/TN3V-CRRZ.p. 254 "'But investigators have…the man De Luna says was responsible.'"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.").p. 254 "'I'm at peace…I do hope I get a stay, though.'"United Press International, Full Court Denies Stay of Execution: DeLuna Scheduled to Die, Oct. 14, 1986.p. 254 "He couldn't ask…all avenues in state court."See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure (6th ed. 2011) at §§ 5.1, 23.3.p. 254 "…charged with murdering non-Hispanic white victims…"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.