1. 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.”).

  2. p. 243 “…the Winston pack the customer had left on the counter…”

    See supra Chapter 10, notes 144, 173 and accompanying text.

  3. 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.

  4. 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.”);

    supra Chapter 10, notes 105–108, 152 and accompanying text and accompanying text & Figure 10.3.

  5. 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.

  6. 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.

  7. 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.”).

  8. 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.

  9. p. 243 “When the investigators looked for…DeLuna evidence.”

    See supra Chapter 11, notes 259–265 and accompanying text.

  10. p. 244 “Twenty years…earlier in the Sauceda case.”

    See supra Chapter 7, notes 199–203 and accompanying text.

  11. 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.

  12. 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.

  13. 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 . . .”).

  14. 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).

  15. 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”).

  16. 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.

  17. 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.

  18. 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);

  19. 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.

  20. 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.”).

  21. 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.

  22. 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.

  23. 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.

  24. 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.

  25. 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.”)

  26. p. 246 “‘He had found God’…rolling her eyes.”

    See supra note 25.

  27. p. 246 “‘But he really was…calmer in his demeanor.’”

    See supra note 25.

  28. p. 246 “He was confident…going to work for him.”

    See supra note 25.

  29. 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.

  30. p. 246 “‘He didn’t even know’…shaking her head.”

    See supra note 29.

  31. p. 246 “‘He was on Death Roll…where he is.’”

    See supra note 29.

  32. p. 246 “‘I started thinking…what he had to face.’”

    See supra note 29.

  33. 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.

  34. 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.

  35. 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.”).

  36. 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.”).

  37. 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).

  38. p. 247 “Hernandez committed…to Diana Gomez.”

    See supra Chapter 7, notes 150–163 and accompanying text.

  39. 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.”).

  40. p. 247 “By then, De Pena had fought through his financial woes…”

    See supra Chapter 11, notes 33–40 and accompanying text.

  41. 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].”).

  42. p. 247 “James Lawrence handled the first round of appeals himself.”

    See infra notes 55–58, 63–67 and accompanying text.

  43. 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.

  44. 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].”).

  45. 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.

  46. 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.

  47. 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.

  48. 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.

  49. 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.

  50. 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.

  51. 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.”).

  52. 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.”).

  53. p. 248 “That was true enough…in the courtroom.”

    See supra Chapter 14, notes 30–37 and accompanying text.

  54. 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).

  55. 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.

  56. 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.

  57. 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.

  58. 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”).

  59. 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).

  60. 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”).

  61. 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).

  62. 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).

  63. 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.

  64. 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.

  65. 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.”).

  66. 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.”).

  67. 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.”).

  68. 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.

  69. p. 250 “It was this order…murder of Dahlia Sauceda.”

    See supra notes 47–49 and accompanying text.

  70. 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”).

  71. 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.

  72. 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.

  73. 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.”).

  74. 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.

  75. 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.”).

  76. 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.”).

  77. 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.

  78. p. 251 “At the time…for killing Dahlia Sauceda.”

    See supra Chapter 7, notes 176–179 and accompanying text.

  79. p. 251 “Kenneth Botary…first trial for the Sauceda murder.”

    See supra note 10 and accompanying text; supra Chapter 7, notes 199–203 and accompanying text.

  80. p. 251 “Yet, aside from Carlos…Hernandez’s existence.”

    See supra notes 50–51, 70–75 and accompanying text.

  81. 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.

  82. p. 251 “I asked him, ‘Did you do this?’”

    See supra note 81.

  83. p. 251 “‘He committed the crime.’”

    See supra note 81.

  84. p. 251 “Rose…knew Carlos Hernandez.”

    See supra note 81.

  85. p. 251 “They’d hung out at the Casino Club.”

    See supra Chapter 5, notes 152, 161–162, 181, 188–191 and accompanying text; supra Chapter 6, notes 26, 188, 196–201 and accompanying text; supra Chapter 7, notes 57–59, 227 and accompanying text; infra Chapter 16, note 164.

  86. p. 251 “‘I Kept saying that’…with Anderson later.”

    See supra note 81.

  87. p. 251 “‘There was no Carlos Hernandez…there’s no such thing.’”

    See supra note 81.

  88. 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.

  89. 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.

  90. 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.

  91. 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.

  92. 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.

  93. 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.

  94. 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.

  95. 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.

  96. 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.”).

  97. 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.

  98. p. 252 “Legal claims like this…country at the time.”

    See McCleskey v. Kemp, 481 U.S. 279, 299 (1987) (rejecting such claims).

  99. p. 253 “At the time…sometimes reporting both.”

    See, e.g., infra notes 155–156 and accompanying text.

  100. 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”).

  101. p. 253 “As Wanda’s common Spanish surnames…Carlos De Luna was.”

    See infra note 156 (discussing Wanda Lopez’s death certificate which reports her ethnicity as “Spanish origin . . . Mexican”); see also supra Chapter 13, note 154 and accompanying text (quoting the 911 call).

  102. 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.

  103. p. 253 “As Jon Kelly had predicted…a capital murder case…”

    See supra Chapter 11, note 18 and accompanying text.

  104. 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.

  105. 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.

  106. 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.

  107. 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.

  108. p. 254 “He didn’t realize…the Caller-Times coverage of his arrest.

    See supra notes 37–39 and accompanying text; supra Chapter 6, notes 99–100, 166–171 and accompanying text & Figure 7.2; 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 7.2.

  109. p. 254 “As the lawyer told Rose…”

    See supra notes 86–88.

  110. 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.

  111. 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.

  112. 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”).

  113. 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.

  114. 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.”).

  115. 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.

  116. 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.

  117. 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.

  118. p. 254 “…incompetent representation by De Pena and Lawrence.”

    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.”).

  119. p. 255 “Anderson’s own appeal was thirteen pages long.”

    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).

  120. p. 255 “Again…’concerning an assailant other than Petitioner.’”

    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.

  121. p. 255 “Rather…in the Caller-Times that day.”

    Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times, Oct. 14, 1986, at B1:

    Death Row inmate Carlos DeLuna contends he will die for a crime he did not commit if he is executed for the 1983 fatal shooting of a Corpus Christi service station clerk.

    But the prosecutor who successfully sought and won the death penalty for DeLuna said his claims that another man was responsible for the clerk’s death are outright lies.

    “Everything he passed onto us was checked out. The bottom line is he lied to us,” said former Assistant District Attorney Steve Schiwetz, now in private practice . . . .

    DeLuna, now 24, maintains he is innocent even though a jury found him guilty of Ms. Lopez’s death and two appeals courts upheld that conviction and death sentence.

    In a Caller interview, DeLuna said he was arrested because he was in the area and authorities needed a suspect. DeLuna claimed he was across the street and saw the killing, but walked away without reporting what he saw.

    “I knew since I had been convicted before in Dallas County they would pin this one on me,” DeLuna said . . . .

    DeLuna claims he is a victim of mistaken identity. He said a friend, Carlos Hernandez, killed the clerk but authorities refuse to believe him. ”

    That’s a lie,” Schiwetz said. “He lied throughout the trial, and he’s lying now.” It was on the first day of the trial, Schiwetz said, that DeLuna told his court-appointed attorney, Jim Lawrence, about Hernandez whom he said he met while both were in the Nueces County Jail.

    “We got pictures of all the Carlos Hernandezes who had been in the jail the last 10 years and gave them to him to pick the guy out. He couldn’t,” Schiwetz said.

    “Further checks showed that DeLuna had never been in jail the same time as a Carlos Hernandez,” the former prosecutor added . . . .

    DeLuna was arrested a block away from the murder scene after he was found hiding under a car. In his pants pocket was a wad of money—the same amount that had been taken from the service station’s cash register, Schiwetz said.

  122. p. 255 “De Luna, Carrico wrote…’service station clerk.’”

    See supra note 121.

  123. p. 255 “‘The bottom line is…in private practice.’

    See supra note 121.

  124. p. 255 “‘DeLuna claimed he…reported what he saw.’”

    See supra note 121.

  125. p. 255 “‘He said a friend…refuse to believe him.’”

    See supra note 121.

  126. p. 255 “‘It was on the first day…Nueces County Jail.’”

    See supra note 121.

  127. p. 255 “‘Further checks’…the prosecutor added.”

    See supra note 121.

  128. p. 256 “‘In his pants pocket…Schiwetz said.’”

    See supra note 121.

  129. p. 256 “The same day…agreed to a delay.”

    See Associated Press, Inmate Gains Stay 12 Hours Before Set Execution, Oct. 15, 1986 (“A federal judge granted convicted killer Carlos DeLuna a stay of execution Tuesday, just 12 hours before he was to die by injection for the 1983 robbery-slaying of a Corpus Christi convenience store clerk. . . . The state Attorney General’s office did not oppose the stay, said Marianne Bolus, a deputy clerk for Head.”);

    see also Linda Carrico, Judge Grants DeLuna Stay of Execution, Corpus Christi Caller-Times, Oct. 15, 1986 (“Death row inmate Carlos DeLuna missed his appointment with death yesterday when a Corpus Christi federal judge granted him a stay just 12 hours before his scheduled execution. . . . Steve Schiwetz, the former prosecutor who successfully sought the death penalty for DeLuna, said he was not surprised by the stay. ‘I expected it. These things take time. You just have to be patient,’ he said.”).

    Indicating that Nueces County District Attorney Grant Jones was representing the State of Texas at this point in the proceedings along with attorneys from the State Attorney General’s Office is, e.g., Letter from Richard Banks, Executive Administrator, to Attorneys in DeLuna v. State, No. 16,436–01 (Tex. Crim. App. Oct. 13, 1986) (enclosing court’s order denying stay of execution and petition for habeas corpus and copying Grant Jones, Nueces County District Attorney, and Paula Offenhauser, Assistant Attorney General).

  130. p. 256 “Federal Judge Hayden…granted it.”

    Order Denying Pets. for Habeas Corpus and Stay of Execution, DeLuna v. Lynaugh (S.D. Tex. Dec. 2, 1989) at 49 (“On October 13, 1986, the Court of Criminal Appeals denied all requested relief. DeLuna immediately filed a motion for stay of execution and a petition for writ of habeas corpus in this Court. The Court granted a stay of execution on October 14, 1986.” (citations omitted));

    see Linda Carrico, Judge Grants DeLuna Stay of Execution, Corpus Christi Caller-Times, Oct. 15, 1986 (“Death row inmate Carlos DeLuna missed his appointment with death yesterday when a Corpus Christi federal judge granted him a stay just 12 hours before his scheduled execution. . . . U.S. District Jude Hayden Head, Jr. granted DeLuna a stay pending review of an application for writ of habeas corpus.”).

  131. p. 256 “‘Death row inmate’…article the next day.”

    Linda Carrico, Judge Grants DeLuna Stay of Execution, Corpus Christi Caller-Times, Oct. 15, 1986:

    Death row inmate Carlos DeLuna missed his appointment with death yesterday when a Corpus Christi federal judge granted him a stay just 12 hours before his scheduled execution. . . .

    Steve Schiwetz, the former prosecutor who successfully sought the death penalty for DeLuna, said he was not surprised by the stay. “I expected it. These things take time. You just have to be patient,” he said.

  132. p. 256 “‘You just have to be patient,’ he said.”

    See supra note 131.

  133. p. 256 “But Mary Vargas…out of patience.”

    Linda Carrico, Judge Grants DeLuna Stay of Execution, Corpus Christi Caller-Times, Oct. 15, 1986:

    But Mary Vargas, Ms. Lopez’s mother, said she was disappointed to hear of DeLuna’s stay of execution.

    “It’s the only way I will feel that justice will be done because she didn’t deserve to die,” an upset Mrs. Vargas told the Caller. “I want him to pay for what he did to her. She offered him everything, yet he still killed her,” Mrs. Vargas said. “I have asked over and over again, Why her?” . . .

    Yesterday, DeLuna remained calm while awaiting transfer from death row to the Walls Unit where the death chamber is located. He received word of his stay while visiting with family members, prison officials said.

    DeLuna continues to maintain his innocence. Since his trial, DeLuna has claimed he saw another man kill the store clerk.

  134. p. 256 “…she said, visibly upset.”

    See supra note 133.

  135. p. 256 “‘Why her?’”

    See supra note 133.

  136. p. 256 “Press reports…half-sisters and -brothers.”

    Associated Press, Inmate Given Reprieve Hours Before Execution, Dallas Herald Times, Oct. 15, 1986:

    A federal judge granted convicted killer Carlos DeLuna a stay of execution Tuesday, just 12 hours before he was to die by injection for the 1983 robbery-slaying of a Corpus Christi convenience store clerk. . . .

    Upon hearing of the stay, DeLuna only said, “thank you,” according to Charles Brown, Texas Department of Corrections spokesman.

    DeLuna, 24, appeared calm Tuesday while waiting for word of his last-minute appeals, Brown said. He talked with other inmates and visited with a friend and relatives.

    The convict took heart medication early Tuesday, but prison officials said they did not know his ailment.

  137. p. 256 “‘Thank goodness!’…news of the delay.”

    Judge Blocks Execution of DeLuna, Oct. 15, 1986, (newspaper clipping from an unidentified Texas newspaper found in a Texas Department of Criminal Justice file on the Carlos DeLuna case, reporting that U.S. District Court Judge Head granted a stay “13 hours before he was to be strapped to a gurney and put to death. ‘Thank goodness!’ DeLuna, 24, responded when given the news about 12:30 p.m. Tuesday . . . .”).

  138. p. 256 “A ‘summary’…to appear and testify.”

    Resp’t’s Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Nov. 10, 1986) at 13–15.

  139. p. 256 “As was obvious just…because it didn’t affect him.”

    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.”).

  140. p. 256 “Anderson…no evidence to show that.”

    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.).

  141. p. 257 “Anderson’s claim…’without factual support.’”

    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).

  142. p. 257 “‘The contention is simply speculation.’”

    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.”).

  143. p. 257 “Two days after…he’d murdered Dahlia Sauceda.”

    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.

  144. p. 257 “It was after that…to pursue Jesse Garza instead.”

    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.”);

    see supra Chapter 7, notes 39–43, 199 and accompanying text.

  145. p. 257 “On New Year’s Eve…the missing evidence.”

    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 Blackmun . . . . 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.

  146. p. 257 “‘Judge Frees’…two-column headline read.”

    See Sandra Forero, Judge Frees Man Charged in Murder, Corpus Christi Caller-Times, Jan. 1, 1987.

  147. p. 257 “The article described the crime…recently come forward.”

    Sandra Forero, Judge Frees Man Charged in Murder, Corpus Christi Caller-Times, Jan. 1, 1987.

  148. p. 257 “‘Again, however, no one told…the Corpus Christi newspaper.”

    Sandra Forero, Judge Frees Man Charged in Murder, Corpus Christi Caller-Times, Jan. 1, 1987.

  149. p. 258 “By late January 1987…DeLuna out of court…”

    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).

  150. p. 258 “…the lawyer had been on the case for four months…”

    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.”).

  151. p. 258 “…with any evidence to support his arguments…”

    See supra notes 138–142 and accompanying text.

  152. p. 258 “…directed by Judge Head to provide more details…”

    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.”).

  153. p. 258 “…extensions of time to file 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.”).

  154. p. 258 “Anderson admitted to…come up with some.”

    Pet’r’s Resp. to Resp’t’s Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 2–6 (explaining that Anderson had only become involved in the case until shortly before DeLuna’s scheduled execution date and had not had sufficient time to collect “the type of statistical data” required to make out such a claim, listing reasons why it takes so much time to collect such data, and describing data-gathering efforts hoped the court would allow him to make to prove the claim).

  155. p. 258 “He also acknowledged…her ethnicity.”

    Pet’r’s Resp. to Resp’t’s Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 6 (noting that the autopsy does not “recognize a separate category for race in terms of Hispanic . . . .”).

  156. p. 258 “Then he proceeded to demolish…’Mexican.’”

    See Certificate of Death: Wanda Jean Lopez, State of Texas (Feb 10, 1983) (listing Wanda Lopez’s “race” as white and answering “yes” and “Mexican,” respectively, to the questions “Was the decedent of Spanish origin?” and “If yes, specify Mexican, Cuban, Puerto Rican, etc”).

  157. p. 258 “He pointed out…(Lawrence four times)…”

    Pet’r’s Resp. to Resp’t’s Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 8.

  158. p. 258 “…(five relatives, a former girlfriend, and a schoolteacher).”

    Pet’r’s Resp. to Resp’t’s Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 11:

    Trial counsel, although being advised from numerous witnesses that this twenty-one year old Petitioner had to present mitigation of punishment, failed to put on a single witness at the punishment phase at the trial on mitigation of punishment. Although Petitioner was only twenty-one years old at the time of the offense, he was told by trial counsel that it was not necessary to put on the witnesses that he had requested to testify at the punishment state of the trial, including Maria Arrendondo, his sister; Rose Earley, sister; Daniel Conejo, brother; Maria Conejo, sister-in-law; Mr. Perez, [E]nglish teacher at Tom Brown Junior High School; Blas Olivados, stepfather; Belinda Pena, neice [sic]; Diana Pena, neice [sic]; Alicia Caballara, girl friend. Each of those witnesses would have provided testimony beyond just a plea to not impose the death penalty.

  159. p. 259 “As the State lawyers…to change its mind.”

    Br. of Resp’t Supporting Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Nov. 12, 1986) at 7–9, 12–14 (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”).

  160. p. 259 “Anderson did offer one new piece…Carlos Hernandez.”

    Pet’r’s Resp. to Resp’t’s Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 9.

  161. p. 259 “‘On July 25…arrested on another charge.’”

    Pet’r’s Resp. to Resp’t’s Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 10 (emphasis added).

  162. p. 259 “Although Anderson put the news article in an appendix to his brief…”

    Pet’r’s Resp. to Resp’t’s Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 25–26 (reproducing clipping of 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.”).

  163. p. 259 “…page 1A of the newspaper, was undated.”

    Pet’r’s Resp. to Resp’t’s Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 25–26 (reproducing clipping of Libby Averyt, City Man Is Jailed in 7-Year-Old Murder Case,Corpus Christi Caller-Times, July 25, 1986 at 1A, 18A (The run-over page of the clipping, buried in the Appendix, did have the “July 25, 1986″ date on it in small print. But Anderson missed the date and misinformed the judge about it, and Judge Head’s opinion took Anderson’s word for the fact that article appeared in July 1983, not July 1986)).

  164. p. 259 “If Anderson had informed himself…by the article.”

    See supra Chapters 6–9.

  165. p. 259 “The failure of DeLuna’s lawyers…the absence even of that.”

    See supra Chapter 9, notes 59–105 and accompanying text.

  166. p. 260 “Once Anderson had attached…they represented DeLuna…”

    See supra Chapter 11, notes 275–281 and accompanying text (reporting Lawrence’s statement after that fact that, if he had had a date of birth for the Carlos Hernandez to whom DeLuna was referring, he could have easily located Carlos Hernandez).

  167. p. 260 “A simple search of public records…DeLuna’s twenty years…”

    See supra Chapter 2, notes 43–44 and accompanying text & Table 2.1.

  168. p. 260 “…almost identical to DeLuna’s…”

    See supra Chapter 6, notes 99–100 and accompanying text; supra Chapter 9 note 97 and accompanying text.

  169. p. 260 “…history of armed robberies of convenience stores…”

    See supra Chapter 6, notes 166–171 and accompanying text.

  170. p. 260 “…buck knife in his crimes and his daily life…”

    See supra Chapter 6, notes 50–52, 123–137 and accompanying text; supra Chapter 7, notes 24, 88, 98–99, 113, 126 and accompanying text; supra Chapter 8, note 46 and accompanying text; supra Chapter 9, note 73 and accompanying text.

  171. p. 260 “…knife two months after the Wanda Lopez killing…”

    See supra Chapter 9, note 73 and accompanying text.

  172. p. 260 “…showing a resemblance to Carlos DeLuna…”

    See supra Chapter 6, Figure 6.2; supra Chapter 9, notes 124–138 and accompanying text & Figure 7.2; see also supra Chapter 5, Figure 5.3.

  173. p. 260 “…gas station who sprinted away to the north.”

    See supra Chapter 2, notes 46–48, 80–81 and accompanying text; Chapter 6, notes 139–142 and accompanying text & Figure 6.2; supra Chapter 9, notes 122–124 and accompanying text & Figure 7.2.

  174. p. 260 “Both women knew…took the blame.”

    See supra Chapter 8, notes 46–47, 60–62, 85–86 and accompanying text; Chapter 9, notes 7–8, 56–57 and accompanying text.

  175. p. 260 “That, in fact…Carlos Hernandez existed.”

    See infra Epilogue, notes 94, 99–103 and accompanying text.

  176. p. 261 “After nothing happened in Carlos DeLuna’s…execution.”

    Resp’t’s Mot. to Expedite, DeLuna v. Lynaugh, No. C–86–234 (S.D. Tex. Feb. 3, 1988) at 3.

  177. p. 261 “Because Anderson had suggested…representation at DeLuna’s trial…”

    Pet’r’s Resp. to Resp’t’s Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 6–8:

    It is respectfully requested that due to the complexity of compiling the statistical background necessary to meet the requirements of McClesky do [sic] to the particular problems of compiling such statistics in Nueces County, that Petitioner’s counsel be given a reasonable amount of time to compile such statistics . . . . Petitioner’s counsel will use all due diligence to determine if such survey can be completed and under what time limitations it can be completed . . . . Due to the short period of time from the time of Petitioner’s present counsel’s entry into the case and the need to seek some relief regarding a stay of execution, a shorthand rendition of Petitioner’s claims in his Original Petition for Writ of Habeas Corpus were set out . . . . Petitioner’s attorney is forwarding to Petitioner an Amended Writ of Habeas Corpus to flesh out the allegations . . . .

  178. p. 261 “…waiting for Anderson to file something more.”

    Resp’t’s Mot. to Expedite, DeLuna v. Lynaugh, No. C–86–234 (S.D. Tex. Feb. 3, 1988) at 3.

  179. p. 261 “If so, the State…provided additional information.”

    Resp’t’s Mot. to Expedite, DeLuna v. Lynaugh, No. C–86–234 (S.D. Tex. Feb. 3, 1988) at 3.

  180. p. 261 “His failure…proved there was nothing to find.”

    Resp’t’s Mot. to Expedite, DeLuna v. Lynaugh, No. C–86–234 (S.D. Tex. Feb. 3, 1988) at 3.

  181. p. 261 “Each time he was carrying…them.”

    Arrest Sheet No. 38884 for Carlos Hernandez, Corpus Christi Police Dep’t (Jan. 21, 1987) at 2 (“The subject had several knives in his possession and stated that he carried them because he was protecting himself.”);

    Arrest Sheet No. 46352 for Carlos Hernandez, Corpus Christi Police Dep’t (July 16, 1987) at 1;

    Arrest Sheet No. 10920 for Carlos Hernandez, Corpus Christi Police Dep’t (July 29, 1987) at 1.

  182. p. 261 “He was also arrested…at night with a knife.”

    Arrest Sheet No. 43426 for Carlos Hernandez, Corpus Christi Police Dep’t (May 5, 1987) at 1 (“The above subject was observed standing next to a vehicle, behind a business in a dark alleyway, while talking to the subject he said his name was Javier Hernandez . . . The subject then said his name was Carlos Hernandez.”);

    see also supra Chapter 9, notes 73–75 and accompanying text (describing an earlier, similar arrest in April 1983).

  183. p. 261 “At some point in 1988…sustaining head injuries.”

    See Memorial Medical Center Records, Multidisciplinary Assessment (July 28, 1995) (stating that Carlos Hernandez “fell off pickup truck—sustained head injury in 1988″);

    see Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 03:46:13 (“[H]e [Carlos Hernandez] was in a car accident, and he had surgery on his brain right here. [indicates hair line of forehead].”);

    James S. Liebman’s Notes on Interview with Dina Ybañez, Neighbor of Carlos Hernandez (July 13, 2004) at 1 (“He [Carlos Hernandez] was in a car accident; missing part of brain.”);

    Peso Chavez’s Notes on Interview with Dina Ybañez, Neighbor of Carlos Hernandez (June 14–15, 2004) at 4 (“He [Carlos Hernandez] was in a previous car accident and suffered a head injury.”);

    Peso Chavez’s Notes on Interview with Johnny Ybañez, Neighbor of Carlos Hernandez (Aug. 4, 2004) at 2 (“Mr. Ybanez was aware that Mr. Hernandez had fallen out of a truck and hit his head when he was younger and had to have surgery—he had a hole in his head.”).

  184. p. 262 “‘Love Brother Carlos.’”

    Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (May 27, 1988) at 1–3.

  185. p. 262 “On June 13…temporarily delayed the execution.”

    DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 9 (“[N]o hearing is merited. Petitioner’s writ of habeas corpus is denied and the agreed stay of execution is lifted.”).

  186. p. 262 “He had come up with…not Hispanic.”

    DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 1–2.

  187. p. 262 “Or that better lawyering…chances at the trial.”

    DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 2 (“Petitioner has not alleged facts specific to his own case that would support an inference that racial considerations played a part in his sentence. . . . Nor may this Court infer purposeful discrimination in Petitioner’s case from statistical data [about Texas as a whole].”);

    DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 2–9:

    Petitioner must show that his defense was prejudiced by his counsel’s deficient performance. . . . Petitioner cannot argue that the decision not to use his mother’s testimony was unreasonable and he can show no prejudice from the lack of her testimony. . . . Petitioner’s attorneys’ decision to rely solely on jury argument in the punishment phase of the trial was not unreasonable, given the facts of the case, viewed as of the time of the trial. . . . The record reflects that Petitioner’s attorneys made an effort to locate Carlos Hernandez. . . . In view of the cumulative eyewitness testimony and other circumstantial evidence, it is not reasonable to believe that the location of “Carlos Hernandez” would have affected the outcome of the trial. Given the fact that Petitioner lied about his other alibi witness, Mary Ann Perales, there is substantial doubt that Carlos Hernandez even existed . . . . Petitioner has not developed beyond conclusion his allegations of ineffective counsel on appeal. Under the foregoing circumstances, no hearing is merited.

  188. p. 262 “Assuming, then…’grounds for a new trial’…”

    DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 6–8 (noting that DeLuna claimed that his trial lawyers “made no investigation of the arrested suspect to determine if there could be grounds for a new trial” but finding that Anderson’s papers failed to allege any specific acts DeLuna’s trial attorneys failed to commit in order to find and investigate Carlos Hernandez).

  189. p. 262 “…Hernandez and the murder of Wanda Lopez.”

    DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 7–8.

  190. p. 264 “Anderson, however…’the outcome of the trial.’”

    DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 7.

  191. p. 264 “‘Significant time’…the judge wrote.”

    DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 9.

  192. p. 264 “After reading everything…’Carlos Hernandez even existed.’”

    DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 8;

    see DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 7 (concluding that DeLuna failed to show “what exculpatory evidence the additional investigation would have uncovered”; “consequently, [i]t is not reasonable to believe that the location of Petitioner’s ‘Carlos Hernandez’ would undermine the confidence in the outcome of the trial.”);

    see also DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 7–8:

    Petitioner’s testimony would obviously carry little weight. Two eyewitnesses identified Petitioner as the murderer, one of which had a face-to-face encounter with Petitioner only moments after the crime. Two more witnesses saw Petitioner fleeing from the scene moments after the murder, and Police found Petitioner a short time later hiding under a car in the neighborhood behind the gas station. In view of the cumulative eyewitness testimony and other circumstantial evidence, it is not reasonable to believe that the location of “Carlos Hernandez” would have affected the outcome of the trial.

  193. p. 264 “Although she rarely wrote back…investigators in 2004.”

    Transcribed Videotape Interview with Vicky Gutierrez, Half-Sister of Carlos DeLuna, in Garland, Texas (Feb. 27, 2005) at 00:23:17–00:23:52 (“Q. Did you save those letters [sent to her from death row by her half-brother Carlos DeLuna]? A. Yes, I did.”).

  194. p. 264 “She also had a sketch of Carlos…finishing the portrait.”

    See, e.g., Transcribed Videotape Interview with Vicky Gutierrez, Half-Sister of Carlos DeLuna, in Garland, Texas (Feb. 27, 2005) at 00:45:30, 00:46:23, 00:47:33, 01:12:27, 01:14:45–01:14:53:

    A. This is an award to Carlos DeLuna for completing his corresponding course of Bible. Offered by extension of the Church of Christ, and director of studies Clifford Emerson gave it to him . . . Yeah, he made me a little church, he made me a little jewelry box . . . . This is a little church that my brother, Carlos DeLuna, mailed to me. He made it himself . . . This is a picture, a friend of his drew it in Huntsville. He sent it to me because he knew I would be the one that would keep it forever.

    Q. When you look at that picture—hold it up and tell me what you think of when you look at it.

    A I think of my brother, and how I loved him. We all loved him, and he’s gone now. This is something like a souvenir for me, to keep all my life.

    See also Texas Clerk Killer Executed, as Father, Stepmother Watch, Palm Beach Sun Sentinel, May 15, 1985, available at http://articles.sun-sentinel.com/1985-05-15/news/8501190637_1_rosa-store-clerk-la (“Jesse De La Rosa . . . died by injection early Wednesday, the first Hispanic and youngest person executed since the Supreme Court reinstated the death penalty in 1976.”). Archived at: http://perma.cc/P7CC-YF6Y.

  195. p. 264 “Vicky cried when she read some of her brother’s letters to investigators…”

    Transcribed Videotape Interview with Vicky Gutierrez, Half-Sister of Carlos DeLuna in Garland, Texas (Feb. 27, 2005) at 00:26:50 (“A. (reads [from letter from Carlos DeLuna]) ‘Mary, tell all the others if it is possible to come to my trial, so I can see all of them, in case I should get the death penalty. That way I can see them all (breaks into tears) one last time.’ I don’t like to read things like that. (reads) ‘What I mean by all of them, I mean my family, Daniel, Manuel, Rosemary, Big, Tony, Becky, Vincent and, of course, you.’ That’s all . . . [I] don’t know why I’m so sensitive, I can’t [read any further].”).

  196. p. 264 “…letter about Judge Head’s ruling.”

    Transcribed Videotape Interview with Vicky Gutierrez, Half-Sister of Carlos DeLuna, in Garland, Texas (Feb. 27, 2005) at 01:01:18–01:10:10:

    This [letter] was written in June, 1988, from Carlos DeLuna to Vicky Gutierrez. It says, (reads) “Dear Vicky, I want to send you my love and regards to all of your family, big Fred, little Lisa, little Noel, and, of course, you. I hope all of you are all well and fine. . . . I’m sure you heard the federal court in Corpus Christi ruled against me on my appeal. That means . . . [t]hey can set another date of execution. . . . I have a good chance of being put to death this time around because it’s getting to a point where the courts quit, don’t want to hear our appeals any more on Death Row. Vicky, I wrote you about a month ago and I asked you to please send me some money where I can send a few things home, just in case something does happen, I don’t want to leave their things. I want to know, I want to make sure you’ll get them while I am still alive. I would say about 15 or 20 dollars (turns page) would cover most of the postage and I will be able to buy me something to eat and drink, because the food here is very, very bad. I wish there was a way you could send me a tray from home. Do you remember how you would always make pork chops for me? I can still remember that. I can remember when me and big Fred would sometimes go fishing. He would always give me some advice. If only I would have taken it. How stupid I was when I was young. I thought I knew it all. But that goes to show me how much I know about anything. I remember mother used to tell me, ‘Son, one day you’re going to find yourself in a hole and you won’t be able to get out. Or you won’t be able to get out for a long time, if you don’t behave.’ And I used to tell her, ‘Who, me? A hole? No way.’ But how right she was. The older you get the wiser you get. I’m 26 years old now. I was 20 years old when I got locked up. I do feel older and I do look a little older. Here I send you a few pictures of me. I have a big one, about five-by-seven. When I get the money for the stamps, I will send it to you if you want it. . . . I sometimes sit here at night, and I cry to myself, and I wonder, how could I have ever let some stupid thing like this happen because of a friend who did it, and I kept my mouth shut about it all. But I don’t blame anyone but myself and I accept that. That is why I will accept it if the state of Texas decides to execute me. I want you to remember that no matter what happens I will never forget all of you all. And I (turns page) will always love all of you. They may be able to kill me, but they can’t kill the love or memories, always keep that in mind. . . . I will write to you again as soon as I hear something from the court, when they will set my date of execution. Well, I hope you can help me out on the postage due. I close my letter now, my sister, and write whenever you can. God bless you and your family, Mary. He always protects you and your family. Until I hear from you. I will send that big picture of me as soon as I can. When I get the stamps to do it. By now. Love, brother Carlos DeLuna.”

  197. p. 264 “In it, Carlos…the cocky young man.”

    See supra notes 22–27.

  198. p. 264 “Carlos fondly recalled…’big Fred.’”

    See supra note 196.

  199. p. 264 “‘How stupid I was.’”

    See supra note 196.

  200. p. 264 “‘But how right she was.’”

    See supra note 196.

  201. p. 264 “‘I am sure…my appeal,’ Carlos wrote.”

    See supra note 196.

  202. p. 264 “‘I have a good…any more on Death Row…’”

    See supra note 196.

  203. p. 264 “‘I sometimes…shut about it all.’”

    See supra note 196.

  204. p. 265 “But I don’t…Texas decides to execute me.”

    See supra note 196.

  205. p. 265 “‘[I]t’s a harsh…take it to your death.’”

    Transcribed Videotape Interview with Richard Louis Vargas, Brother of Wanda Lopez, in Corpus Christi, Texas (Dec. 4, 2004) at 07:16:17–07:16:24 (“Q. Do you think Carlos DeLuna was responsible for this crime? A. In that aspect, it’s a harsh way of putting it but I’m not—I’m going to use that as an example for the future ones, the ones that do a crime like this. If you play with fire and you want to cover up for your friend and you want to look good and not get your friend in trouble and you know who did it and you take it, you take it to your death.”).

  206. p. 265 “In an act…’Matters to Previously Filed Pleadings.’”

    First Am. Appl. for Writ of Habeas Corpus and Br., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. June 29, 1988);

    Mot. to Attach Affs. and Evidentiary Matters to Previously Filed Pleadings, DeLuna v. McCotter, No. C–86–234 (S.D. Tex. July 12, 1988).

  207. p. 265 “For the first…many acts of kindness and generosity.”

    Mot. to Attach Affs. and Evidentiary Matters to Previously Filed Pleadings, DeLuna v. McCotter, No. C–86–234 (S.D. Tex. July 12, 1988), at 2 & App. (unnumbered pages) (“Attached to this Motion are affidavits from witnesses necessary to support Petitioner’s claim for ineffective assistance of counsel for failure to investigate and put on evidence in mitigation of punishment for this 21 year old Petitioner at the sentencing phase of his capital murder case.”).

  208. p. 265 “Anderson also came…opinion that it had done so.”

    See Mot. to Attach Affs. and Evidentiary Matters to Previously Filed Pleadings, DeLuna v. McCotter, No. C–86–234 (S.D. Tex. July 12, 1988), at 3 & App. (unnumbered pages) (discussing and attaching records documenting DeLuna’s “extensive background of substance abuse, including chemical inhalence [sic], which might have lessened Petitioner’s responsibility for the homicide or mitigated against the death penalty”).

  209. p. 266 “It was just…’appeals any more on Death Row.’”

    Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (June 30, 1988);

    see Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter in Dallas, Texas (Feb. 28, 2005) at 03:21:15–03:34:45:

    Q. You have a letter that Carlos wrote to you on December 4th, 1989. I wonder if I could get you to read that letter for us. Give us the date and when it was in relation to when he was executed.

    A. (picks up letter) This is December 4th, 1989. This would have been three days before his execution. And he writes, (reads) “Dear Karen, I honestly don’t know what to say to you, only that it looks real bad at the present moment. The court of appeals and the federal court in Corpus turned down my appeal. We are appealing to the Fifth Circuit in New Orleans, and, of course, to the United States Supreme Court. . . . I honestly think if they stop the execution it will have to be stopped by the Supreme Court. I don’t have no faith in the Fifth Circuit in New Orleans. They’ve gotten to the point where they don’t want to hear any more appeals at all. Especially if you’ve already been through there once before, they just don’t want to even look at your appeal again. But it is not over until it’s over.”

  210. p. 266 “In the 1980s…in order to delay the inevitable.”

    See, e.g., Stephens v. Kemp, 464 U.S. 1027, 1032 (1983) (Powell, J., dissenting from grant of a stay of execution):

    In the nearly nine years of repetitive litigation by state and federal courts there has been no suggestion that the death sentence would not be appropriate in this case. Indeed, if on the facts here it was not appropriate, it is not easy to think of a case in which it would be so viewed. Once again, as I indicated at the outset, a typically “last minute” flurry of activity is resulting in additional delay of the imposition of a sentence imposed almost a decade ago. This sort of procedure undermines public confidence in the courts and in the laws we are required to follow.

    Coleman v. Balkcom, 451 U.S. 949, 957–958 (1981) (Rehnquist, J., dissenting from denial of certiorari):

    It seems to me that we have thus reached a stalemate in the administration of federal constitutional law. Although this Court has determined that capital punishment statutes do not violate the Constitution, and although 30-odd States have enacted such statutes, apparently in the belief that they constitute sound social policy, the existence of the death penalty in this country is virtually an illusion. Since 1976, hundreds of juries have sentenced hundreds of persons to death, presumably in the belief that the death penalty in those circumstances is warranted, yet virtually nothing happens except endlessly drawn out legal proceedings such as those adverted to above. Of the hundreds of prisoners condemned to die who languish on the various “death rows,” few of them appear to face any imminent prospect of their sentence being executed. (citations omitted)

    See also Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 Hum. Rts. 14, 16 (1987) (“In federal habeas corpus cases coming to the Court since 1983, an impatience to decide the cases quickly, so as to avoid delaying executions, seems increasingly to be taking precedence over any concern to decide them fairly or reliably.”).

  211. p. 266 “In response…in favor of death.”

    See Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 Hum. Rts. 14, 15 (1987) (“Today, the temptation that appears to afflict a majority of the Supreme Court of the United States is to give death-sentenced inmates less, not more, of a chance than other litigants.”); Adam Thurschwell, Federal Courts, the Death Penalty, and the Due Process Clause: The Original Understanding of the ‘Heightened Reliability’ of Capital Trials, 14 Fed. Sent’g Rep. 14, 17 (2001) (“The historical examination required by parallel claims in the examination reveals a broadly accepted judicial doctrine at the time of the Founding which required, in favorem vitae(in favor of life) that statutes imposing capital punishment be ‘construed literally and strictly.’”); Julia E. Boaz, Summary Processes and the Rule of Law: Expediting Death Penalty Cases in the Federal Courts, 95 Yale L.J. 349, 357 (1985):

    The petty gambler or drug pusher who files a habeas corpus petition in a court of appeals possesses the basic procedural tools to challenge his conviction and sentence: He may obtain counsel who will not be hampered in her ability to represent him thoroughly and vigorously; he may see that his case is fully briefed and, if need be, argued orally before judges who have been duly assembled to hear him out. Not so the defendant who possesses a certificate of probable cause to appeal his death sentence. Such an effect does indeed ensure that “death is different.”

  212. p. 266 “Judges began…courts and the death penalty itself.”

    See, e.g., Stephens v. Kemp, 464 U.S. 1027, 1032 (1983) (Powell, J., dissenting from grant of a stay of execution):

    In the nearly nine years of repetitive litigation by state and federal courts there has been no suggestion that the death sentence would not be appropriate in this case. Indeed, if on the facts here it was not appropriate, it is not easy to think of a case in which it would be so viewed. Once again, as I indicated at the outset, a typically “last minute” flurry of activity is resulting in additional delay of the imposition of a sentence imposed almost a decade ago. This sort of procedure undermines public confidence in the courts and in the laws we are required to follow.

    Coleman v. Balkcom, 451 U.S. 949, 957–958 (1981) (Rehnquist, J., dissenting from denial of certiorari) (citations omitted):

    It seems to me that we have thus reached a stalemate in the administration of federal constitutional law. Although this Court has determined that capital punishment statutes do not violate the Constitution, and although 30-odd States have enacted such statutes, apparently in the belief that they constitute sound social policy, the existence of the death penalty in this country is virtually an illusion. Since 1976, hundreds of juries have sentenced hundreds of persons to death, presumably in the belief that the death penalty in those circumstances is warranted, yet virtually nothing happens except endlessly drawn out legal proceedings such as those adverted to above. Of the hundreds of prisoners condemned to die who languish on the various “death rows,” few of them appear to face any imminent prospect of their sentence being executed.

    Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 Hum. Rts. 14, 50 (1987) (“[Justice Powell, discussing a request for a stay of execution] implied that the timing of these applications was contrived by death-row inmates’ lawyers of nefarious, albeit undescribed—and, to me at least, entirely obscure—reasons of supposed tactical advantage.”); Julia E. Boaz, Summary Processes and the Rule of Law: Expediting Death Penalty Cases in the Federal Courts, 95 Yale L.J. 349, 355–56 (1985) (“Members of the Court have repeatedly expressed impatience and irritation with execution delays, an attitude suggesting illegitimate manipulation of procedures on the part of death penalty lawyers.”);

  213. p. 266 “To fight back…failure to pay a $2 debt.”

    See, e.g., Smith v. Murray, 477 U.S. 527, 527 (1986) (allowing a death row inmate to be executed despite the use in his case of a sentencing procedure that the Court had held in prior cases violated the Constitution and required the death verdicts to be reversed; justifying the denial of relief based on the inadvertent failure of a prior lawyer in the case, who previously had objected to the procedure, to repeat the objection at one step of the defendant’s appeals); Barefoot v. Estelle, 463 U.S. 880, 894–95 (1983) (permitting federal habeas corpus courts to use “summary procedures” that “depart[] from the normal, untruncated processes of appellate review” in order to expedite executions); Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 Hum. Rts. 14, 54 (1987) (“[Y]et a death-sentenced appellant who has obtained a certificate of probable cause can have his appeal decided on the merits under guise of denying a stay of executive without the full time for briefing, argument and judicial deliberation that would be permitted in a five-dollar tax case or a two-dollar social security case. This is a far cry from the traditions of Anglo-American justice requiring especially careful review of claims of error in death cases.”); Julia E. Boaz, Summary Processes and the Rule of Law: Expediting Death Penalty Cases in the Federal Courts, 95 Yale L.J. 349, 361 (1985):

    The emergency review conditions shaped by the new procedures exacerbate the blunders of all too human lawyers, causing them to take on a fatal significance. In the case of James Hutchins, members of a local firm serving as Hutchins’ counsel failed to challenge the jury selection process in the case in his first habeas corpus petition. The issue, the subject of a favorable ruling before a federal district judge of the same circuit and currently pending before the Supreme Court, was later raised in Hutchins’ second petition. Hutchins’ counsel attributed their oversight to the flurry of activity that surrounded the first petition . . . And by the time of the second petition, in March, 1984, the issue was obscured by the fact that the case was moving through the courts at the blistering pace required by the imminent execution date . . . Hutchins was executed on March 16, 1984.

  214. p. 266 “Judge Head denied all of Carlos DeLuna’s requests on July 19, 1988.”

    See Br. of Petitioner-Appellant, DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir. 1989) at 6 (“On July 12, 1988, Petitioner/Appellant filed a Motion to Attach Affidavits along with a number of Affidavits supporting its claim of Petitioner/Appellant’s trial counsels’ failure to investigate and present mitigating evidence that was available to Petitioner/Appellant’s trial counsel at the punishment phase of the trial. On July 19, 1988, the district court entered an Order Denying Relief from Judgment. . . .”);

    see also David Teece, Judge Lifts Stay of Execution for DeLuna, Corpus Christi Caller-Times, July 20, 1988:

    DeLuna has continued to maintain that he is innocent in Lopez’s murder, claiming the assailant was actually a friend of his named Carlos Hernandez. At the trial, DeLuna testified that he was across the street and saw the killing, but walked away without reporting it because he was a convicted felon and did not want to jeopardize his parole. Police found DeLuna several blocks from the scene of the killing hiding under a car with a wad of money in his pants pocket, according to prosecutors. . . . Four witnesses at the trial testified that they saw DeLuna inside the service station and fleeing the scene on foot.

  215. p. 266-7 “Only one…three months to file a brief.”

    Br. of Petitioner-Appellant, DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir. 1989) at 6 (noting that the brief was filed on Oct. 24, 1988, after “Petitioner/Appellant gave notice of appeal on July 28, 1988″);

    see also DeLuna v. Lynaugh, 873 F.2d 757, 758 (5th Cir. 1988) (“The Attorney General of Texas informed this Court that it would not ask that a new execution date be set until after the appeals were heard in this Court.”).

  216. p. 267 “For many death…eleven federal courts of appeal.”

    See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure §§ 3.1, 9.1 (6th ed. 2011) (providing an overview of the federal habeas corpus procedures under AEDPA and describing the kinds of legal claims that provide permissible bases for habeas corpus relief).

  217. p. 267 “Those regional…most federal habeas corpus appeals.”

    See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure §38.1(b) (6th ed. 2011) (indicating that a three-panel court usually decides these types of cases).

  218. p. 267 “Those three judges…death penalty should be imposed.”

    See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure §§ 8.1, 32.1–32.5, 37.3 (6th ed. 2011) (describing the permissible bases for habeas corpus review, factors used in determining whether or not relief should be granted, and the standards courts use in reviewing habeas petitions presenting both legal and factual questions).

  219. p. 267 “The other judges…but that rarely happens.”

    See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 38.1(b) (6th ed. 2011).

  220. p. 267 “Also rare is review by the United State Supreme Court.”

    See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 39.3(c) (6th ed. 2011) (discussing the procedures for granting certiorari for stays of execution).

  221. p. 267 “Rarer still…starting back in the district court.”

    See generally Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 28 (6th ed. 2011) (discussing the standards and procedures for review of both “same-claim” and “new-claim” successive habeas petitions).

  222. p. 267 “Anderson’s brief was 25 pages long—half the usual length in a capital case.”

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

  223. p. 267 “Eight of those pages went to preliminaries…”

    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).

  224. p. 267 “…and five more to an argument not made in any of the earlier appeals…”

    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.”).

  225. p. 267 “…which meant the judges weren’t even allowed to consider it.”

    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.”).

  226. p. 267 “He devoted…presenting no mitigating  evidence.”

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

  227. p. 268 “Anderson was forced…time had run out.”

    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.

  228. p. 268 “Anderson’s brief…police had collared the wrong man.”

    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, 275–281 and accompanying text; supra Chapter 13, notes 181, 206–210, 340 and accompanying text.

  229. p. 268 “‘…all we have…what I’m saying Ok?”

    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?”).

  230. p. 268 “‘I hope…are always right Ok?’”

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

  231. p. 268 “The judges began…’course of committing a robbery.’”

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

  232. p. 268 “Then a little further…’punishment stage of the trail.’”

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

  233. p. 268 “The decision…’various pleadings and delays,’…”

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

  234. p. 268 “…and that, even…’without details and affidavits.’”

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

  235. p. 268-9 “It was only…’appellant’s personal conduct with them.’”

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

  236. p. 269 “Under those circumstances…Anderson had belatedly produced.”

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

  237. p. 269 “All that remained…’standards of competence and conduct.’”

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

  238. p. 269 “‘CONSOLIDATED APPEALS CONFIRMED,’ the opinion concluded.”

    DeLuna v. Lynaugh, 873 F.2d 757, 761 (5th Cir. 1988) at 761.

  239. p. 269 “Anderson tried…’the case en blanc,’…”

    See Suggestion for Reh’g En Banc, DeLuna v. Lynaugh, No. 88–2613 (5th Cir. May 10, 1989);

    Order Denying Mot. of Appellant to Recall the Mandate and Stay the Setting of an Execution Date, DeLuna v. Lynaugh, No. 88–2613 (5th Cir. June 29, 1989).

  240. p. 269 “…and he asked the United States Supreme Courts to step in.”

    Pet. for a Writ of Cert., DeLuna v. Lynaugh, 493 U.S. 999 (1989) (cert. denied Aug. 2, 1989).

  241. p. 269 “By October 10, 1989, both courts had refused.”

    See DeLuna v. Lynaugh, 493 U.S. 999 (1989) (No. 89–5442) (denying petition for a writ of certiorari); Order Denying Mot. for Stay of Execution, DeLuna v. Lynaugh, No. 88–2613 (5th Cir. June 29, 1989);

    Suggestion for Reh’g En Banc, DeLuna v. Lynaugh, No. 88–2613 (5th Cir. May 10, 1989).

  242. p. 269 “Realizing that…case to make that call.”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:27:45 (“Most of those of us who were doing capital cases in Texas took the attitude that if you did the direct appeals you didn’t do the writs. If you did the original writ, you didn’t do successor writs. Essentially this was based upon a philosophy that we’ve shot our wad. We’ve done everything we can think of, we’ve tried everything we know. It didn’t work, so it’s time to get someone else to look at it, if only to challenge our competency.”).

    See generally Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure §§ 28.3, 28.4 (6th ed. 2011) (discussing the extremely stringent limitations on habeas corpus relief in these situations).

  243. p. 269 “Anderson turned to…capital appeals for a fee.”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:23:27 (“Richard 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.”).

  244. p. 269 ” Weaver was…specialized in capital appeals.”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:22:25 (“When I got tired of St. Louis I moved back to Dallas to do work for Henry Wade, the D.A., who was D.A. for thirty-six or -seven years here.”).

  245. p. 269 “As Weaver…’less than winning the lottery.’”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:29:55 (“In Texas, in the eighties, the chances of getting a capital conviction reversed were, quite literally, statistically, less than winning the lottery. It just didn’t happen. This is the state where the court of criminal appeals concluded that there was nothing ineffective when a lawyer slept through a capital trial, there was nothing ineffective when the judge slept through a capital trial.”).

  246. p. 269-70 “‘It just didn’t…slept through a capital trial.’”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005).

  247. p. 270 “Although Weaver…agreed to take the case.”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:24:12;

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna in Dallas, Texas (Feb. 28, 2005) at 02:24:12 (“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.”).

  248. p. 270 ” Weaver told her…being executed for that crime.”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:34:24 (“I would comment, in this particular case, I had no reason to believe he was innocent. Indeed, no one was suggesting that he was innocent at that time.”);

    see also supra notes 86–88 (describing Rose DeLuna’s conversations with lawyers who represented her brother).

  249. p. 270 “Weaver told Carlos the same thing the one time they met.”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:24:12, 02:39:00 (“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 had one conversation with him in person, one by phone.”).

  250. p. 270 ” On November 2… date for Carlos’s execution.”

    See Death Sentence After Mandate, State v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989) at 2;

    Pet’r’s Objections to Trial Ct.’s Findings of Fact and Conclusions of Law, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 24, 1989) at 1 (“Petitioner is currently under sentence to be executed before sunrise on December 7, 1989.”).

  251. p. 270 “With just a month…delay the execution.”

    Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989);

    Appl. for Stay of Execution, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989);

    Mem. of Law on Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989).

  252. p. 270 “Anticipating rapid orders…in Washington, D.C.”

    Compare pleadings cited supra note 251 (filed in the Nueces County District court), with, e.g., Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989),

    and Appl. for Stay of Execution, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989),

    and Mem. of Law on Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989),

    with Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 89–6262 (5th Cir. Nov. 30, 1989),

    and Appl. for Stay of Execution, DeLuna v. Lynaugh, No. 89–6262 (5th Cir. Dec. 4, 1989), and Mem. of Law on Appl. for Stay of Execution, DeLuna v. Lynaugh, No. 89–6262 (5th Cir. Dec. 4, 1989).

  253. p. 270 “Funny thing was…any stage of his case.”

    See, e.g., Mem. of Law on Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989), at 3–33.

  254. p. 270 “Several months earlier…capital-punishment statute.”

    See Penry v. Lynaugh, 492 U.S. 302, 328 (1989); see also infra Chapter 16, notes 66–79 and accompanying text.

  255. p. 271 “For years…capital-sentencing stage.”

    See Locket v. Ohio, 438 U.S. 586, 604 (1978) (“[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”) (footnotes omitted).

  256. p. 271 “The problem with that…into ‘aggravating’ factors.”

    Penry v. Lynaugh, 492 U.S. 302, 323–24 (1989) (“Penry’s mental retardation and history of abuse is thus a two-edged sword: it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future.”).

  257. p. 271 “A jury…counts as a mitigating factor.”

    Penry v. Lynaugh, 492 U.S. 302, 322–23 (1989) (“Because Penry was mentally retarded, however, and thus less able than a normal adult to control his impulses or to evaluate the consequences of his conduct, and because of his history of childhood abuse, that same juror could also conclude that Penry was less morally ‘culpable than defendants who have no such excuse,’ but who acted ‘deliberately’ as that term is commonly understood.”).

  258. p. 271 “Yet, if the defendant…sentence the man to die.”

    Penry v. Lynaugh, 492 U.S. 302, 323 (1989) (“In the absence of jury instructions defining ‘deliberately’ in a way that would clearly direct the jury to consider fully Penry’s mitigating evidence as it bears on his personal culpability, we cannot be sure that the jury was able to give effect to the mitigating evidence of Penry’s mental retardation and history of abuse in answering the first special issue.”).

  259. p. 271 “If that happened…verdict had to be thrown out.”

    Penry v. Lynaugh, 492 U.S. 302, 328 (1989) (“In this case, in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused background by declining to impose the death penalty, we conclude that the jury was not provided with a vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision.”).

  260. p. 271 “The jurors…couldn’t do anything to change it.”

    See supra Chapter 14, notes 53–59 and accompanying text.

  261. p. 271 “Lawrence didn’t object to…DeLuna’s first appeal.”

    See, e.g., Resp’t’s Original Answer to Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 13, 1989) at 4–5:

    This claim is not properly preserved for review, contrary to his assertion. In order to preserve this claim, counsel must have objected at the time of trial to the procedures of which he now complains. The record reflects that counsel filed written objections to the court’s punishment charge prior to the time the charge was read to the jury. The third paragraph objected that the charge did not instruct the jury to consider evidence of mitigating circumstances and that this violated the holdings of . . . Lockett v. Ohio . . . . Counsel specifically withdrew this objection, however, when making his objections on the record. Failure to properly preserve a claim for review, either by objecting to the charge or by requesting special instructions, results in a waiver of that claim.

    See, e.g., id. at 8 (“This claim . . . has not been properly preserved for review. . . . Because his [Applicant's] objection at trial did not comport with the claim he is now raising, the claim is waive[d].”).

  262. p. 272 “Now, for the first time…at Penry’s.”

    Resp’t’s Original Answer to Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 13, 1989) at 3–4 (describing the applicant’s claims as stating that: “The Texas Death Penalty scheme . . . denied [De Luna] his fundamental constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as . . . the Texas Constitution because it did not allow for the effective presentation of consideration of available mitigation evidence concerning the Petitioner’s past difficulties with drug and alcohol abuse, his personal background, his youth, or his mental condition.”);

    Pet’r’s Objections to State’s Proposed Findings of Fact and Conclusions of Law, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 17, 1989) at 3–4 (“The Court ignores the offense reports . . . which show a history of drug and alcohol related arrests . . . . [I]t ignores the affidavits . . . which show friends and relatives who were ready and able to present further mitigating evidence.”);

    Mem. of Law on Appl. for Stay of Execution, DeLuna v. Lynaugh, No. 89–6262 (5th Cir. Dec. 4, 1989) at 9 (“[T]he Petitioner has claimed that there was evidence of a mitigating nature that was available to be presented at the trial of this cause which was not presented due to the state of the law in Texas at the time of the Petitioner’s trial.”);

    see Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna in Dallas, Texas (Feb. 28, 2005) at 02:41:14:

    [Penry] had just come down and we [lawyers representing capital prisoners], at that time, believed perhaps it would be a mechanism for getting people relief. So everybody who was working this level, in the capital cases, we were all raising [Penry] issues, essentially. Trying to find out, was it going to be retroactive? What kind of burden was going to be placed on people? Could we manage to craft a legal argument about [Penry if] . . . nobody had raised it at the trial court, which turned out to be a bit of a problem. That was the primary, I think that was the main point I tried to raise.

    Weaver also made two other arguments—that “the Texas Death Penalty scheme . . . as applied against the Petitioner, denied him his fundamental constitutional rights . . . because the jury was fundamentally misled as to the meaning of the word ‘deliberately’ in Special Issue Number One” (another argument trial lawyer James Lawrence had made to the jury (which couldn’t do anything to cure the problem), but failed to make to the judge (who had the power to cure the problem)) and that DeLuna ” was denied his fundamental constitutional rights . . . when the trial judge, at the Mot. for New Trial hearing, refused to permit the Petitioner to discharge his appointed attorneys and represent himself at all further stages of his case.” See Mem. of Law on Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989) at 6–7;

    Mem. of Law on Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989) at 29–33 (arguing, as James Lawrence had argued to the jury, see supra Chapter 14, notes 53–59 and accompanying text, that the jury should have been been instructed that deliberately meant more than just intentionally, which was the mental state required to convict of first-degree murder at the first, guilt-innocence stage of the trial);

    see also Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna in Dallas, Texas (Feb. 28, 2005) at 02:44:03 (emphasis in original):

    The courts further said that, in order to get the death penalty, you had to act deliberately, and it was our position deliberately had to mean more than intentionally or knowingly. Otherwise, why bother? Standard rules of code construction suggest that you cannot craft a statute that has no force or effect. It had to mean something, something more or different that intentionally or deliberately. The law in Texas was that terms did not have to be defined to the jury if they were used in a normal and customary, standard way, unless they were statutorily defined. Deliberately was not statutorily defined. We were asking the courts, the trial courts, to define deliberately, because it had to mean something other than intentionally or knowingly.

  263. p. 272 “Only by delaying…a reasoned decision.”

    See, e.g., Mem. of Law on Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989) at 25.

  264. p. 272 “First, Lawrence…sweet and generous as a child.”

    See supra Chapter 14, notes 30–37 and accompanying text.

  265. p. 272 “The State’s lawyers…because there wasn’t any.”

    See, e.g., Resp’t’s Original Answer to Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 13, 1989) at 6–8:

    Alternatively, even were the claim not barred, Applicant’s reliance on Penry is misplaced. The holding in Penry was explicitly predicated on the fact that the defendant in that case had presented evidence of his mental retardation and history of child abuse . . . Applicant presented no mitigating evidence at either the guilt-innocence or punishment phase of the trial. Thus he has failed to demonstrated how his jury was precluded from considering mitigating evidence offered as the basis for a sentence less than death . . . .

    Even were the claim properly preserved Applicant is not entitled to relief . . . . The concern expressed by the Supreme Court [in Penry] was that, without a definition of “deliberately”, the jury might not be able to give effect to Penry’s mitigating evidence of mental retardation and child abuse. Applicant points to no mitigating evidence he introduced that the jury could not consider without a special definition of “deliberately” in answering the punishment issues.

    Proposed Findings of Fact, Conclusions of Law, and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 15, 1989) at 3 (“Applicant has presented no competent evidence of any sort that the evaluations of Drs. Kutnick and Plaisted were inaccurate, nor has he presented any evidence that he suffers from any form of mental impairment or disability . . . . No evidence was presented at trial concerning Applicant’s alleged history of drug and alcohol abuse, troubled youth, or limited mental capacity.”).

    Resp’t’s Mot. to Dismiss for Abuse of the Writ and, Alternatively, Answer, Mot. for Summ. J., and Supporting Br., DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Nov. 30, 1989) at 14:

    In rejecting, without a hearing, DeLuna’s claim of ineffective assistance of counsel for failing to offer evidence at punishment of his history of substance abuse and his borderline intelligence, the court below noted that DeLuna had proffered no affidavits from the proposed witnesses as to what their testimony would have been, or that they had been available and willing to testify at the time of trial. The court also observed that there was no indication that DeLuna was under the influence of drugs at the time of the offense, so that any testimony of his prior substance abuse would have had negligible mitigating value, and that the record did not substantiate DeLuna’s claim that he was of low intelligence.

  266. p. 272 “Second, although lawyers…attention to it one day…”

    Cases during the 1987–1989 period in which death row inmates objected to Texas capital-sentencing procedures on the ground that they kept defendants from deriving the full mitigating value of evidence they presented include, e.g., Franklin v. Lynaugh, 487 U.S. 164, 183 (1988) (plurality opinion) (confirming that courts were not required to specifically instruct the jury to consider the mitigating value of evidence); Penry v. Lynaugh, 832 F.2d 915, 920 (5th Cir. 1987) (upholding decision that court did not need to specifically instruct jury to consider aggravating and mitigating circumstances), aff’d in part, rev’d in part, 492 U.S. 302 (1989); Cordova v. State, 733 S.W.2d 175, 189–91 (Tex. Crim. App. 1987) (addressing and rejecting claim that trial court had erroneously failed to instruct the jury that to take into consideration all mitigating circumstances); Clark v. State, 717 S.W.2d 910, 920 (Tex. Crim. App. 1986) (en banc) (same); see also Jurek v. Texas, 428 U.S. 262, 276 (1976) (upholding constitutionality of the Texas capital-sentencing procedures because it “authorize[es] the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced”).

  267. p. 272 “De Pena and Lawrence…DeLuna’s first appeal.”

    See supra notes 63–67, 260–261 and accompanying text.

  268. p. 272 “Anderson did mention…ruled were filed too late.”

    See supra notes 91–108, 111, 116–120, 149–165, 222–228 and accompanying text.

  269. p. 272 “Weaver couldn’t make…DeLuna’s earlier petitions.”

    See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 28.3(c)(1) (6th ed. 2011).

  270. p. 272 “But if Penry’s lawyers…had the chance.”

    See, e.g., Resp’t’s Original Answer to Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 13, 1989) at 8 (“Applicant did not contend that the failure to define the term prevented the jury from considering mitigating evidence introduced in support of a sentence less than death. Because his objection at trial did not comport with the claim he is now raising, the claim is waive[d].”);

    Proposed Findings of Fact, Conclusions of Law, and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 15, 1989) at 5 (“Applicant’s failure to object to the Texas capital sentencing statute on the grounds now urged bars consideration of his claim that the statute precludes consideration of mitigating evidence unless the jury is specially instructed.”);

    Resp’t’s Mot. to Dismiss for Abuse of the Writ and, Alternatively, Answer, Mot. for Summ. J., and Supporting Br., DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Nov. 30, 1989) at 13:

    DeLuna has been represented by competent counsel at trial, on direct appeal and in prior habeas actions. His attorney in his prior state habeas corpus proceedings and in his prior petition in federal court [James Anderson] is listed as “of counsel” in his current petition. There is no legitimate reason why, if he believed that the Texas capital sentencing statute was constitutionally infirm because it did not mandate instruction on consideration of mitigating evidence or did not allow the jury to consider evidence of his background and mental condition, he did not raise such claims in his earlier federal petition.

  271. p. 272 “Texas’s two sentencing…the mitigating value.”

    See, e.g., Mem. of Law on Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989) at 2 (acknowledging that DeLuna’s attorneys put on no mitigating evidence at trial and suggesting that, “in light of the inherent problems of presenting such [mitigation] testimony without proper instructions to guide the jury’s deliberations, trial counsel made a tactical decision not to present such testimony”).

  272. p. 272 “To show that mitigating information…DeLuna’s low IQ scores.”

    See, e.g., Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989) at Apps. B–W.

  273. p. 273 “Weaver answered the second argument…in Penry’s case.”

    See, e.g., Mem. of Law on Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989) at 25:

    It is accordingly abundantly clear that because Penry amounts to such a substantial development in the law, one that overturns Texas Courts’ precedent . . . , “a [capital] defendant has not waived his right to assert a [Penry] violation by failing to object at trial [or raise the issue in later proceedings].”

    Permitting capital defendants to raise Penry claims, irrespective of any failure to raise a claim previously, would be fully consistent with the practice adopted in other states in the wake of a major Eighth Amendment decision having substantial impact on the operation of the capital statute.

    Mem. of Law on Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989) at 25:

    It is accordingly abundantly clear that because Penry amounts to such a substantial development in the law, one that overturns Texas Courts’ precedent . . . , “a [capital] defendant has not waived his right to assert a [Penry] violation by failing to object at trial [or raise the issue in later proceedings].”

    Permitting capital defendants to raise Penry claims, irrespective of any failure to raise a claim previously, would be fully consistent with the practice adopted in other states in the wake of a major Eighth Amendment decision having substantial impact on the operation of the capital statute.

    Appl. for Stay of Execution and Appl. for Stay of Mandate of the U.S. Ct. of Appeals for the Fifth Circuit Pending Cert., DeLuna v. Lynaugh (Dec. 4, 1989) at 10 (arguing that the prior lawyers could be excused for not raising the claim before the Supreme Court’s opinion in Penry because that case was such “an abrupt shift from bedrock principles announced by Texas Courts. . . [and] declares that a wide variety of evidence typically offered by Texas capital defendants . . . cannot be afforded mitigating effect in the absence of instructions in addition to those on the special issues.”).

  274. p. 273 “The Penry claim…evidence on his behalf.”

    See supra note 270; infra note 276.

  275. p. 273 “In any event…at all or on time before.”

    See supra note 270; infra note 276.

  276. p. 273 “Each court agreed…too little mitigating information…”

    See, e.g., Proposed Findings of Fact, Conclusions of Law, and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 15, 1989) at 3–4:

     

    1. No evidence was presented at trial concerning Applicant’s alleged history of drug and alcohol abuse, troubled youth, or limited mental capacity.

       

    2. Nothing in the record supports Applicant’s assertions that counsel felt precluded by the Texas capital sentencing statute from introducing the kind of evidence referred to in No. 11; rather, the record affirmatively demonstrates that such evidence did not exist.

       

    3. Applicant has presented nothing in his habeas corpus application to support his contentions that there was at the time of trial mitigating evidence of the kind listed in No. 11 . . . .

       

    4. Further, the affidavits from friends and family members attached to the application for writ of habeas corpus reveal that Applicant’s childhood and teenage years were generally happy, and that he was surrounded by loving relatives and friends. They do not depict the “troubled youth” he now asserts he experienced.

       

     

    Findings of Fact and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 22, 1989) at 2 (“No evidence was presented at trial concerning Applicant’s alleged history of drug and alcohol abuse, troubled youth, or limited mental capacity. In a previous collateral attack on his conviction, Applicant alleged that counsel were ineffective for failing . . . to investigate and introduce [this] mitigating evidence . . . .”);

    Order Denying Pets. for Habeas Corpus and for Stay of Execution, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989) at 8, 9 (“In this case, petitioner presented no mitigating evidence and, indeed, withdrew his request for an instruction on mitigation.”; “Penry submitted mitigating evidence to the jury, but DeLuna did not. Because there is no evidence upon which the jury could be confused as to meaning of ‘deliberately,’ it is not error to fail to define it to the jury.”);

    DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir. 1989) (“It is significant, however, that appellant makes no claim that he was abused as a child or that his alcohol and drug use significantly reduced his mental capacities. In addition, appellant has not shown any evidence of mental retardation. Instead, the psychological reports prepared for trial indicate that appellant registered at worst borderline mental capacity.”).

  277. p. 273 “…and had objected too late.”

    See, e.g., Proposed Findings of Fact, Conclusions of Law, And Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 15, 1989) at 2 (“Applicant expressly waived his objection that charge did not contain an instruction on consideration of mitigating evidence. Thus, Applicant’s objections to the charge at trial are not the same as those he makes in this application.” (citation omitted));

    Order Denying Pets. for Habeas Corpus and for Stay of Execution, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989) at 6 (explaining that DeLuna’s prior attorneys should have anticipated the claim because, as “[t]he Fifth Circuit held . . . [,]. the Penry claims are not recently found legal theor[ies] not knowable by competent trial counsel.”).

  278. p. 273 “Brown knew…Texas Court of Criminal Appeals.”

    See supra notes 110–114 and accompanying text.

  279. p. 273 “To emphasize how…a subordinate sign them.”

    Resp’t’s Original Answer to Appl. for Writ of Habeas Corpus, Appl. For Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 13, 1989) at 11.

  280. p. 273 “Taking advantage of judges’…’Conclusions of Law and Order.’”

    Proposed Findings of Fact, Conclusions of Law, and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 15, 1989).

  281. p. 274 “Two days after…Weaver filed objections to it.”

    Pet’r’s Objections to State’s Proposed Findings of Fact and Conclusions of Law, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 17, 1989).

  282. p. 274 “Five days after that…’Fact and Order.’”

    Findings of Fact and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 22, 1989).

  283. p. 274 “On November 24…with Judge Brown…”

    Pet’r’s Objections to Trial Ct.’s Findings of Fact and Conclusions of Law, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 24, 1989).

  284. p. 274 “…to overturn Brown’s order.”

    Appellant’s Objections to Trial Ct.’s Findings of Fact and Conclusions of Law, Ex parte DeLuna No. 16,436–02 (Tex. Ct. Crim. App., Nov. 24, 1989).

  285. p. 274 “Although he knew…arguments to a federal court.”

    See supra note 116 and accompanying text.

  286. p. 274 “The Texas Court…rejecting DeLuna’s petition.”

    Order on Habeas Corpus Appl. from Nueces Cty., Ex parte DeLuna, No. 16,436–02 (Tex. Ct. Crim. App., Nov. 29, 1989) at 1.

  287. p. 274 “The next day…TERROR OF CONDEMNED KILLER.”

    Kathy Fair, Each Tick of Clock Increases Terror of Condemned Killer, Hous. Chron., Nov. 30, 1989, at 34A (‘”I’ll be honest,’ said DeLuna, who came within 12 hours of being executed in October 1986. ‘I’m really scared that I’m going to have to go through this and I hope don’t, but if it does happen I have peace within myself. I’m not going to fight these people or anything. I’ll walk into the chamber and lie down on my own will and let them execute me.’”).

  288. p. 274 “‘I’m really scared that I’m going to have to go through this…’”

    Kathy Fair, Each Tick of Clock Increases Terror of Condemned Killer, Hous. Chron., Nov. 30, 1989, at 34A;

    see also Texan Is Put to Death by Injection For Killing Woman in a Robbery, N.Y. Times, Dec. 8, 1989, available at http://www.nytimes.com/1989/12/08/us/texan-is-put-to-death-by-injection-for-killing-woman-in-a-robbery.html?pagewanted=print&src=pm (“In an interview last week, the condemned man said he was afraid of being executed. ‘I don’t think anybody can prepare yourself for dying,’ he said. ‘I can’t imagine myself lying down on that gurney. I try to but I can’t.’”). Archived at: http://perma.cc/N8K9-BW5Z. Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989, at 36A (“A week ago DeLuna said he feared facing his executioner. ‘I’m human; of course I’m afraid to die,’ he said.”);

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:21:15–03:32:00:

    Q. You have a letter that Carlos wrote to you on December 4th, 1989. I wonder if I could get you to read that letter for us. Give us the date and when it was in relation to when he was executed.

    A. (picks up letter) This is December 4th, 1989. This would have been three days before his execution. And he writes, (reads) “. . . I’ll be honest with you, I am scared to die. I haven’t been up to even trying to prepare myself for this.” . . . The December 4th letter, and the December 5th letter, I received from Carlos DeLuna after his death. . . . On December 5th, 1989, he writes, Carlos DeLuna writes, “. . . I was just thinking last night, I had set my alarm clock to get up early. That way I could try and talk to some people I needed to talk to. The alarm clock went off, and you know, for the first time since I’ve been here I never have ever slept right through the alarm. I woke everybody else up in the same tank with me, and my neighbor kept banging on my bars ’till I woke up. I can’t believe I am sleeping too good with all this happening. But you know what, Karen? I am not scared like I was yesterday. I feel like this fear.” I’m sorry. He says, “But you know what, Karen? I am not scared like I was yesterday. I feel like this peace came from somewhere and entered my body, and I feel very peacefully about everything.”

    Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:36:35–23:37:45:

    I knew that his [Carlos DeLuna's] last appeal, he had told me it didn’t work out for him. I got the call from [Carlos's sister] Rose [Rhoton]. I didn’t know the actual date that he was going to get executed. But when I got a phone call from Rose, she told me that Carlos was up for execution that night. They were hoping for a stay of his execution. He said he didn’t want to call me, he didn’t want to talk to me or anything like that, because he was afraid. When I talked to Rose that night, I think I prayed. I prayed for him, up until I guess I heard that he had been executed. I was sad. I didn’t think it would happen.

  289. p. 274 “…’I have peace within myself.’”

    Kathy Fair, Each Tick of Clock Increases Terror of Condemned Killer, Hous. Chron., Nov. 30, 1989, at 34A.

  290. p. 275 “Judge Head did not…on Saturday, December 2.”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:24:12 (“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., an execution date set]. . . that starts the clock. So by the time I got in to this, there was already a death sentence set.”).

  291. p. 275 “Weaver had undergone jaw surgery…while he recuperated.”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:32:54, noting that Kristen Weaver had jaw surgery the day before the hearing and asked the judge to postpone it, and stating:

    I had just had oral surgery. I was trying not only to get a hearing but a continuance. Anything to get it past this day, to get it past the death date, would mean they’d have to re-set it and we’d have some more time to think of something or do something. The answer was, quite simply, no. The fact that I’d had oral surgery the day before the judge had decided to have this hearing was completely irrelevant, as far as he was concerned. So I didn’t get to take the drugs. I had to proceed accordingly, in pain. They didn’t particularly care..

    See also Order Denying Pets. for Habeas Corpus and Stay of Execution, DeLuna v. Lynaugh, No. 89-c–336 (S.D. Tex. Dec. 2, 1989) at 4 (“The Court . . . held a hearing by telephone conference call on December 2, 1989, in which to allow petitioner’s attorney an opportunity to respond to respondent’s motion to dismiss for abuse of the writ process.”).

  292. p. 275 “Judge Head refused…Dallas to the Gulf Coast.”

    See supra note 291.

  293. p. 275 “Later that night…postpone the execution.”

    Order Denying Pets. for Habeas Corpus and Stay of Execution, DeLuna v. Lynaugh, No. 89-c–336 (S.D. Tex. Dec. 2, 1989) at 9;

    Judgment, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989) at 1

  294. p. 275 “It took the judge two days…ladder another rung.”

    See Mot. for Relief from Order, Mot. for Certificate of Probable Cause and Notice of Appeal, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989) at 1, 5;

    Order, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 4, 1989) at 1 (page 6 of motion and proposed order).

  295. p. 275 “The moment Judge Head…Court of Appeals in New Orleans…”

    Mem. of Law on Appl. for Stay of Execution, DeLuna v. Lynaugh, No. 89–6262 (5th Cir., Dec. 4, 1989) at 2;

    Appl. for Stay of Execution and Appl. for Stay of Mandate of the U.S. Ct. of Appeals for the Fifth Circuit Pending Cert., DeLuna v. Lynaugh, No. 89–6262 (Dec. 4, 1989) at 8.

  296. p. 275 “…and the United States Supreme Court in Washington, D.C.”

    Appl. for Stay of Execution and Appl. for Stay of Mandate of the U.S. Ct. of Appeals for the Fifth Circuit Pending Cert., DeLuna v. Lynaugh, No. 89–6262 (Dec. 4, 1989) at 1.

  297. p. 275 “The court of appeals…December 5, 1989.”

    DeLuna v. Lynaugh, 890 F.2d 720, 723 (5th Cir. 1989).

  298. p. 275 “As for what happened…’fatally stabbed the clerk, Wanda Lopez.’”

    Order Denying Petitions for Habeas Corpus and for Stay of Execution, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989) at 4, incorporated by reference in DeLuna v. Lynaugh, 890 F.2d 720, 724 (5th Cir. 1989).

  299. p. 275 “‘He was seen and identified’…the order continued.”

    See supra note 298.

  300. p. 275 “‘Police apprehended DeLuna…underneath a parked truck.”

    See supra note 298.

  301. p. 275 “The only other facts…’punishment phase of the trial’…”

    See supra note 298.

  302. p. 275 “…how Texas law dealt with mitigation.”

    DeLuna v. Lynaugh, 890 F.2d 720, 722–23 (5th Cir. 1989) (“Because he deliberately failed to introduce mitigating evidence as a tactical decision, appellant’s case does not come within the requirements announced in Penry v. Lynaugh”); see also Order Denying Pets. for Habeas Corpus and for Stay of Execution, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989) at 5, 6, incorporated by reference in DeLuna v. Lynaugh, 890 F.2d 720, 724, 725 (5th Cir. 1989) (“Pending is respondent’s motion to dismiss for abuse of the writ procedure because petitioner failed to raise this challenge in his first petition for writ of habeas corpus . . . .”; “In King v. Lynaugh, the Fifth Circuit held that the Penry claims are not ‘recently found legal theor[ies] not knowable by competent trial counsel.’ Thus, petitioner’s first and second grounds for writ of habeas corpus may be dismissed for abuse of the writ.”) (citation omitted);

    see also Kathy Fair, Condemned Man Appeals Case to Supreme Court, Hous. Chron., Dec. 6, 1989, at 28A (“The [judges] ruled DeLuna had not presented any mitigating evidence on which jurors could have been instructed [because] his attorneys had opted not to introduce such evidence . . . .”).

  303. p. 275 “‘STAY OF EXECUTION DENIED.’”

    DeLuna v. Lynaugh, 890 F.2d 720, 723 (5th Cir. 1989).

  304.  p. 276 “He pointed out that the legal issues he’d raised…’on them.’”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:47:40 (“Several of the issues that were raised at various stages of his case and rejected were later acknowledged and other people got off [i.e., got relief from death sentences] on them. He had the misfortune of being at the wrong time, before the courts would really acknowledge it.”);

    see Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989, at 36A:

    DeLuna’s attorney, Chris Weaver of Dallas, said he was frustrated with the lower courts’ refusal to grant a stay based on claims that jurors were not instructed on consideration of mitigating evidence, a matter argued successfully before the U.S. Supreme Court in what is widely called the Penry decision. “I think the courts are scared to death of Penry,” Weaver said. “I think the 5th Circuit is attempting to limit Penry to (that one case) probably because if it is applied broadly, there are 287 others on death row convicted on the basis of a statute that’s been determined to be unconstitutional.”

  305. p. 276 “Carlos DeLuna…argument at the wrong time.”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:47:40.

  306. p. 276 “They shot through the courts…a little more than six years…”

    Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:47:40 (“[Carlos's appeals] went through rather quickly.”).

  307. p. 276 “…less than half the national average.”

    See supra note 15 and accompanying text.

  308. p. 276 “‘Unbelievably swift’…frequently carry out executions.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:34:55–03:37:24:

    Q. You covered a number of capital cases in Texas when you were working in media there. Did you have any thoughts or impressions about the time it took for this case to get from trial to execution?

    A. Unbelievably swift, this case was. We talked about that. I talked about that with Carlos. . . . I never got a really good explanation from anybody. I don’t understand. It just was unimaginable to me. There were people on Death Row that had been there 10 years, 15 years longer than Carlos, who were still there. And he was just rushed through. It was unheard-of. And right about the time, right before this last death date for Carlos, I remember they were working on some legislation concerning the swiftness of the appellate process. They were actually trying to cut down the number of appeals. This was being pushed at the time. They were saying the appeals process was taking too long, and they were trying to limit the number of appeals . . . . I remember interviewing . . . [a local] judge. . . . And I remember one of his quotes. Judge Villareal said, “We’ve got to make sure we dot all our I’s and we cross all our t’s when it comes to these capital cases, but they’re dragging on.” There was just no good explanation for it from anybody, that I ever got. It was just unbelievable. That was why I kept thinking there’s more time, there’s more time, if I’m going to do something, if I’m going to try to help Carlos or go visit him again, I’ve got plenty of time. I never dreamed that it was going to happen when it did . . . .

    See Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:22:20–01:25:50:

    A. In 1983 I went to work for my first television job in Corpus Christi, Texas, at the CBS affiliate, KZTV. I worked there for a couple of years, then I moved to the NBC affiliate in Corpus Christi, Texas. So I was there [Corpus Christi] for a total of six years, until 1989. Then I moved to Georgia to start up a television station in Georgia as the news director and main anchor there. And after a couple of years I moved to New Orleans to work at the FOX affiliate in New Orleans, where I worked on-air as an anchor and reporter for about nine and a half years. . . .

    Q. Over the course of your work . . ., how many capital trials did you cover?

    A. Gosh, I wish I knew the actual answer. But a number of capital murder trials I watched and covered. And then in New Orleans, covered a number of capital murder trials as well, and noticed the differences in what constitutes a capital trial in Louisiana versus Texas versus Georgia.

  309. p. 276 “‘I never got a really good explanation from anybody,’ she said.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:35:10.

  310. p. 276 “‘It was unheard-of.’”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:35:10.

  311. p. 276 “Boudrie had maintained…on death row.”

    See supra notes 25–28 and accompanying text.

  312. p. 277 “When he began writing her letters…a young reporter’s career.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:28:50–01:29:56:

    After that first meeting, Carlos began to write to me. He had my address at the station, because I had to write to him to request the interview, to get on his list, and whatnot. So he began to write to me. At first it was kind of an eerie thing. Everyone [said], “Oh my gosh, this Death Row inmate is writing to you, and that’s kind of freaky and weird.” But I found it interesting, just to see what he had to say, the questions he asked. I was kind of fascinated by the whole thing, to learn more about him as a person, what he was going through, what was happening with his appeal. And as a journalist, I wanted to keep that connection going. I thought, maybe one day I’ll be the person he reveals some deep, dark secret to, perhaps, and just continue to stay connected as this case developed. I figured this would be years and years before the appeals were exhausted.

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:16:02–03:18:00:

    After doing the interview with Carlos, he obviously had my address then, at the TV station, and wrote back afterwards and said he enjoyed meeting me and whatnot. I didn’t write him back. I was very, I guess, kind of weirded out that he was just going to start writing me letters. I had done my interview, it was over with. He didn’t give up. He proceeded, after I did not write Carlos back after he wrote me his first letter, he made this card. It just said, “Thinking of you, hope you’re doing well. Did you ever get my first letter? Is there a reason that you’re not writing me back? If there is, I wish you’d tell me. I know you’re busy.” He also mentioned the fact that he was thinking, he’d thought a lot about his life. He thought about writing a book, and would I help him? Just kind of a brief note in here. I guess at that point I made the decision to go ahead [and] write him back. Maybe that wouldn’t be such a bad thing. I wasn’t going to be a Death Row groupie, but I would, as a journalist, continue to stay in correspondence. Maybe he had a story to tell that was yet to be told. Maybe he could be interviewed again down the road, so why don’t I stay in touch. That’s how the correspondence started, from the initial interview on Death Row in 1984. It wasn’t a letter a week, a letter a month, or even a letter a year. There were just—He tended to write me a lot more than I wrote him. He enjoyed writing. I was not the best letter-writer. I didn’t enjoy it. After typing all day at my job, the last thing I felt like doing was sitting down and writing a letter.

  313. p. 277 “Three times…partition laced with chicken wire.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:27:23:

    I had no idea what to expect [when she first went to interview DeLuna on death row]. I wasn’t sure whether I’d be in a room with him, or if there’d be guards all around. It was very interesting, because here’s, for the first time, after covering this trial about someone who everybody called this heinous person, this woman-hater, this violent person. And I’m sitting face-to-face, with glass about this thick, from him. And he kind of seemed like an average, nice guy in some respects. And you have to keep telling yourself, this is the guy they were telling me about a year ago is horrible. It was interesting to see him in that light, to see him more as a human being, not just this caricature of himself that was portrayed in the trial. To sit down and have a conversation with him . . . .

  314. p. 277 “Each time, he talked about what…put him there.”

    Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:02:09.

  315. p. 277 “‘I already named names…and I won’t name names.’”

    Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:02:09.

  316. p. 277 “‘[T]hey’re not trying to find this person,’ he said.”

    Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:02:32–00:02:59:

    Close-up of DeLuna behind chain link [glass partition].

    CARLOS DELUNA: [inaudible] they’re not trying to find this person. They say they’ve tried but they have not tried, no. When I had my turn in court, I offered to take a lie-detector test or any kind of test the district attorney wanted. Mr. Steve Schiwetz, the district attorney, refused the lie-detector test. He told me, he did not want me to take a lie-detector test.

    KAREN BOUDRIE: So you took no tests whatsoever?

    No tests whatsoever. . . . I told my lawyers, my lawyers talked to the district attorney’s office, and they refused the test.

  317. p. 277 “‘They say they’ve tried but they have not tried, no.’”

    Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:02:32.

  318. p. 277 “‘Mr. Steve Schiwetz…take a lie-detector test.’”

    Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:02:32.

  319. p. 277 “‘But as far as the state…didn’t exist.’”

    Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:02:59–00:03:31:

    Close-up of a [Steven Schiwetz] in a suit and tie. He is speaking but we do not hear him.

    KAREN BOUDRIE: But as far as the state was concerned, this particular Carlos Hernandez didn’t exist.

    STEVEN SCHIWETZ: Tried to get some information out of him about where does the man live, has he ever worked anywhere. It was all dead ends. . . . The thing that disproved that story was the fact that he claimed . . . that he and Carlos Hernandez were with two women, and we found them. And we were able to disprove conclusively that they could have been with him that night. . . .

    KAREN BOUDRIE: And the jury didn’t seem to believe the story either. They convicted DeLuna, and after an emotional presentation during the punishment phase, gave him the death penalty.

  320. p. 277 “Instead, Schiwetz continued…DeLuna had claimed.”

    Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:03:15.

  321. p. 277 “Schiwetz, however, did not dispute…a lie-detector test.”

    See Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:03:04–00:03:54.

  322. p. 277 “‘Maybe one day’…a white prison uniform, said.”

    Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:04:33–00:04:48 (“DeLuna, behind chain link window. DELUNA: ‘Maybe one day the truth will come out, and I’m hoping it will. If I end up getting executed for this, I don’t think it’s right, you know?’ KAREN BOUDRIE: ‘Karen Boudrie, News Watch 10.’”).

  323. p. 277 “‘If I end up getting executed for this, I don’t think it’s right.’”

    Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:04:33–00:04:48.

  324. p. 277 “After noting that Rodriguez…behind the glass partition.”

    Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:06:11–00:06:53:

    KAREN BOUDRIE: Rodriguez is currently awaiting a reply from the Diamond Shamrock corporation. Meanwhile, Carlos DeLuna is also waiting, on Death Row, hoping he’ll get good news about his appeal. He says he feels bad about what happened to Wanda Lopez, and also somewhat responsible because he was there. But he doesn’t feel he should die for something he didn’t do.

    Carlos DeLuna behind chain-link window.

    DELUNA: I just wish people would do something about it and look for somebody, look for that person, I mean, and do something about it.

  325. p. 278 “‘But he doesn’t feel he should die for something he didn’t do.’”

    Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:06:11–00:06:53.

  326. p. 278 “‘I just wish people would’…concluding the broadcast interview.”

    Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85) at 00:06:11–00:06:53.

  327. p. 278 “He was confident in his appeals.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:18:55–03:20:30:

    Initially, he continued to profess his innocence, “I’m innocent. I’m confident about my appeals, I have hope about my appeals. But I am trying to go on with my life and do the best that I can, such as getting my G.E.D. and going to school and staying out of trouble.” He was sort of lamenting his past at times. He didn’t go into it a lot. He professed his innocence. He would not talk about Carlos Hernandez because of the appeals. He didn’t want to say anything that would taint his appeal, even though that wasn’t an issue that the attorneys were really delving into. Nobody was really trying to find Carlos Hernandez for him, unfortunately. But Carlos really didn’t want to get into that. He would not let me delve into who was this guy, really, what did you know. You never got to hear a lot about him. It just sounded like that part of his case was a done deal, and nobody was going to believe him. At the same time, he would also bring up the fact that his case was on appeal so he would not talk about that.

  328. p. 278 “It may have been getting to know DeLuna better…”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005), at 01:27:33–01:28:50:

    I had no idea what to expect [when she first went to interview DeLuna on death row]. I wasn’t sure whether I’d be in a room with him, or if there’d be guards all around. It was very interesting, because here’s, for the first time, after covering this trial about someone who everybody called this heinous person, this woman-hater, this violent person. And I’m sitting face-to-face, with glass about this thick, from him. And he kind of seemed like an average, nice guy in some respects. And you have to keep telling yourself, this is the guy they were telling me about a year ago is horrible. It was interesting to see him in that light, to see him more as a human being, not just this caricature of himself that was portrayed in the trial. To sit down and have a conversation with him . . . .

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter in Dallas, Texas (Feb. 28, 2005) at 01:30:50–01:33:40:

    Every time I talked to Carlos, and in every letter, he talked about how his life had gone astray but he always denied committing this crime. Of course, as a journalist, everyone around you’s saying, “Oh, come on, Karen, they all say that. They all say that. You’re naive, you’re green.” So I had doubts. I had doubts about myself as far as, are you too green? Are you believing this guy because you haven’t been around the block enough? But as the years progressed and I had covered more trials and got a little more experience under my belt, I realized that there was something happening with Carlos. . . . I remember him saying, “Karen, you’re the only one who treated me like a human being. You’re the only one that ever had just a little bit of compassion for me, and wrote back to me, and just treated me like a human being.” Everybody else just seemed to—as far as the system or people he came into contact with that weren’t prosecutors or defense attorneys—that treated him as a human being. That meant something to me as a journalist, because people think of us as just these cold people who have no feelings. We go out and we just want to ruin people’s lives and report all the disaster and all the mayhem out there and not ever put it in a context of humanity, so to speak. That meant something to me.

  329. p. 278 “…observed during his years on death row…”

    See supra notes 25–32 and accompanying text.

  330. p. 278 “…freely he admitted the many bad things he’d done…”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005), at 01:30:50–01:31:35, 01:37:29–01:39:20 (“Every time I talked to Carlos, and in every letter, he talked about how his life had gone astray . . . .”; “He had always admitted other wrongs, the ways his life had gone astray, getting in with the wrong crowd. We talked about that a little bit in that last conversation as well.”);

    see also Transcribed Videotape Interview with Rev. Carroll Pickett, Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30 (“He loved his family very much. He was sorry that he’d ended up like this. But we had been talking all day about how his life had not been a good life. He’d messed with the wrong crowd, moved with the wrong people at the wrong time.”).

  331. p. 278 “…denials that he had killed Wanda Lopez.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005), at 01:30:50–01:31:35, 01:37:29–01:39:20 (“Every time I talked to Carlos, and in every letter, he talked about how his life had gone astray but he always denied committing this crime.”; “He had always admitted other wrongs, the ways his life had gone astray, getting in with the wrong crowd. We talked about that a little bit in that last conversation as well. But he never admitted that one crime for which he was dying for.”);

    see also Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 1:41:22–1:43:40 (“And I covered the civil trial involving the Diamond Shamrock and Wanda Lopez’s family. I covered that. This case never seemed to let go of me. All those years I was in Corpus, there were connections. There were appeals, I would follow the case itself as a reporter. But different aspects of it, these people that were involved, always seemed to crop up in my life in one way or another.”).

  332. p. 279 “Whatever the cause…friend Steven Schiwetz thought.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:33:40–01:34:50:

    I started to look at Carlos a little differently over the years. Maybe he was not this monster they made him out to be. I started to see him more as a human being, and I didn’t want to see him put to death. Also, about at the time, I started feeling a little bit guilty that I hadn’t tried harder to maybe do some more stories, make some more noise, or write about this, do something, say, “Why are they putting somebody to death? Why were the wheels of justice in Texas, in particular, at that time, moving so swiftly for this man versus some of these other people who’d been there ten years longer than Carlos?” I guess that’s why, also, in the back of my mind, I kept thinking, he’ll get a stay, this isn’t going to happen. But it just moved so quickly, I couldn’t believe it. Part of me still feels guilty to this day that I didn’t step up and say, as a journalist, there’s some doubt here, and maybe we ought to take a closer look at this. And I never got that chance.

  333. p. 279 “‘Did we dot all’…she wondered.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:34:55–03:37:24:

    I never got a really good explanation from anybody [about why DeLuna's appeals moved through the courts so much more quickly than those of other death row inmates]. I don’t understand. It just was unimaginable to me. There were people on Death Row that had been there 10 years, 15 years longer than Carlos, who were still there. And he was just rushed through. It was unheard-of. And right about the time, right before this last death date for Carlos, I remember they were working on some legislation concerning the swiftness of the appellate process. They were actually trying to cut down the number of appeals. This was being pushed at the time. They were saying the appeals process was taking too long, and they were trying to limit the number of appeals, I believe there was some legislation at the time. I remember interviewing . . . [a local] judge. I remember interviewing him talking about—And I remember one of his quotes. Judge Villareal said, “We’ve got to make sure we dot all our i’s and we cross all our t’s when it comes to these capital cases, but they’re dragging on.” There was just no good explanation for it from anybody, that I ever got. It was just unbelievable. That was why I kept thinking there’s more time, there’s more time, if I’m going to do something, if I’m going to try to help Carlos or go visit him again, I’ve got plenty of time. I never dreamed that it was going to happen when it did, that it would happen when it did.

  334. p. 279 “‘Nobody was really trying to find Carlos Hernandez for him.’”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:18:55–03:20:30.

  335. p. 279 “Someday, she thought…the search for Hernandez.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:18:55–03:20:30.

  336. p. 279 “While DeLuna was appealing…track this Hernandez down.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:34:55–03:37:24:

    Q. You covered a number of capital cases in Texas when you were working in media there. Did you have any thoughts or impressions about the time it took for this case to get from trial to execution?

    A. Unbelievably swift, this case was. We talked about that. I talked about that with Carlos. We talked about that. I never got a really good explanation from anybody. I don’t understand. It just was unimaginable to me. There were people on Death Row that had been there 10 years, 15 years longer than Carlos, who were still there. And he was just rushed through. It was unheard-of. . . . There was just no good explanation for it from anybody, that I ever got. It was just unbelievable. That was why I kept thinking there’s more time, there’s more time, if I’m going to do something, if I’m going to try to help Carlos or go visit him again, I’ve got plenty of time. I never dreamed that it was going to happen when it did, that it would happen when it did.

  337. p. 279 “She never dreamed that DeLuna’s appeals would end as quickly as they did.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:34:55–03:37:24.

  338. p. 279 “‘DeLuna has continued’…the Corpus Christi Caller-Times reported.”

    Cindy Tumiel, Convicted Killer Executed After Court Rejects Appeals, Corpus Christi Caller-Times, Dec. 7, 1989, at B1 (“DeLuna has continued to maintain his innocence, claiming that the murder was committed by a friend named Carlos Hernandez. But those whose lives were touched by the crime doubt the story. ‘He’ll be lying until he dies,’ said Mary Vargas, Lopez’ mother. ‘He’ll lie like he’s been lying. Now he has to pay for what he did to my daughter.’”).

  339. p. 279 “‘Now he has to pay for what he did to my daughter.’”

    Cindy Tumiel, Convicted Killer Executed After Court Rejects Appeals, Corpus Christi Caller-Times, Dec. 7, 1989, at B1.

  340. p. 279 “The Houston Chronicle’s…’execution late Wednesday night.’”

    Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989, at 36A.

  341. p. 279 “Her article alternated…the former prosecutor told Fair…”

    Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989, at 36A (“His primary victims were autos and women. I can’t remember any instance of him trying to pick on a male.”).

  342. p. 279 “‘I wanted him to pay’…quoted Mary Vargas.”

    Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989, at 36A (“DeLuna’s death, she added, would ‘make me feel a little better. You can rest when you know justice has been done.’”); see also Associated Press, Texan Is Put to Death by Injection For Killing Woman in a Robbery, N.Y. Times, Dec. 8, 1989, at A24, available at http://www.nytimes.com/1989/12/08/us/texan-is-put-to-death-by-injection-for-killing-woman-in-a-robbery.html?pagewanted=print&src=pm (“‘On the tape, she’s talking to the cops,’ said Steve Schiwetz, who prosecuted Mr. DeLuna, ‘and then you heard that scream. “I’ll give the money.”‘ The prosecutor said: ‘The last thing she was saying was, “I’ll give the money.” But he just wanted to stick her with the knife. It’s really a bad deal.’”). Archived at: http://perma.cc/N8K9-BW5Z.

    Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989, at 36A.

  343. p. 279 “‘But [Vargas] said…she frantically called police.’”

    Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989, at 36A.

  344. p. 280 “‘It’s not the same.’”

    Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989, at 36A.

  345. p. 280 “Sandwiched between paragraphs…summary of evidence at trial.”

    Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989, at 36A.

  346. p. 280 “‘One witness at his trial identified him’…Fair wrote.”

    Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989, at 36A.

  347. p. 280 “‘DeLuna was found hiding…without a shirt.’”

    Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989, at 36A.

  348. p. 280 “‘His bloody shirt and shoes were found in a yard the next day.’”

    Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989, at 36A.

Court Decisions

  1. Clark v. State, 717 S.W.2d 910 (Tex. Crim. App. 1986);
  2. Coleman v. Balkcom, 451 U.S. 949 (1981);
  3. Cordova v. State, 733 S.W.2d 175 (Tex. Crim. App. 1987);
  4. DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir. 1988);
  5. DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989);
  6. DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988);
  7. DeLuna v. State, 711 S.W.2d 445 (Tex. Crim. App. June 4, 1986);
  8. Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 22, 1989);
  9. Franklin v. Lynaugh, 487 U.S. 164 (1988);
  10. Jurek v. Texas, 428 U.S. 262 (1976);
  11. Lockett v. Ohio, 438 U.S. 586 (1978);
  12. McCleskey v. Kemp, 481 U.S. 279 (1987);
  13. Penry v. Lynaugh, 492 U.S. 302 (1989);
  14. Penry v. Lynaugh, 832 F.2d 915 (5th Cir. 1987), aff’d in part and rev’d in part, 492 U.S. 302 (1989);
  15. Smith v. Murray, 477 U.S. 527 (1986);
  16. Stephens v. Kemp, 464 U.S. 1027 (1983);
  17. Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. at Sept. 12, 1983);

Testimony in Court and Depositions

  1. Steve Fowler, Corpus Christi Police Sergeant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983);

Other Primary Records

  1. Appellant’s Objections to Trial Ct.’s Findings of Fact and Conclusions of Law, Ex parte DeLuna No. 16,436–02 (Tex. Ct. Crim. App., Nov. 24, 1989);
  2. Appl. and Br. in Support of Stay of Execution, DeLuna v. McCotter, No. 86-cv–234 (5th Cir. Oct. 13, 1986);
  3. Appl. for a Stay of Mandate, Texas v. DeLuna, No, 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986);
  4. Appl. for Stay of Execution and Appl. for Stay of Mandate of the U.S. Ct. of Appeals for the Fifth Circuit Pending Cert., DeLuna v. Lynaugh (Dec. 4, 1989);
  5. Appl. for Stay of Execution, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989);
  6. Appl. for Stay of Execution, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989);
  7. Appl. for Stay of Execution, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986);
  8. Appl. for Subpoena of Estella Flores Jimenez, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 9, 1983);
  9. Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989);
  10. Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 89–6262 (5th Cir. Nov. 30, 1989);
  11. Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989);
  12. 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);
  13. 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).
  14. Arrest Sheet No. 38884 for Carlos Hernandez, Corpus Christi Police Dep’t (Jan. 21, 1987);
  15. Arrest Sheet No. 43426 for Carlos Hernandez, Corpus Christi Police Dep’t (May 5, 1987);
  16. Arrest Sheet No. 46352 for Carlos Hernandez, Corpus Christi Police Dep’t (July 16, 1987);
  17. Arrest Sheet No. 10920 for Carlos Hernandez, Corpus Christi Police Dep’t (July 29, 1987);
  18. Autopsy Findings of Wanda Lopez, Joseph Rupp, Nueces County Medical Examiner (Feb. 5, 1983);
  19. Br. of Appellant, Carlos DeLuna, DeLuna v. Texas, No. 69,245 (Tex. Crim. App. Mar. 2, 1984);
  20. Br. of Petitioner-Appellant, DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir. 1989);
  21. Br. of Resp’t Supporting Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Nov. 12, 1986);
  22. Certificate of Death: Wanda Jean Lopez, State of Texas (Feb. 10, 1983);
  23. Crime Scene Photograph 25500001, Corpus Christi Police Dep’t (Feb. 4, 1983);
  24. Crime Scene Photograph 25500002, Corpus Christi Police Dep’t (Feb. 4, 1983);
  25. Crime Scene Photograph 25500005, Corpus Christi Police Dep’t (Feb. 4, 1983);
  26. Crime Scene Photograph 25500008, Corpus Christi Police Dep’t (Feb. 4, 1983);
  27. Crime Scene Photograph 25500015, Corpus Christi Police Dep’t (Feb. 4, 1983);
  28. Crime Scene Photograph 25500016, Corpus Christi Police Dep’t (Feb. 4, 1983);
  29. Crime Scene Photograph 25500017, Corpus Christi Police Dep’t (Feb. 4, 1983);
  30. Crime Scene Photograph 25500018, Corpus Christi Police Dep’t (Feb. 4, 1983);
  31. Crime Scene Photograph 25500019, Corpus Christi Police Dep’t (Feb. 4, 1983);
  32. Crime Scene Photograph 25500025, Corpus Christi Police Dep’t (Feb. 4, 1983);
  33. Crime Scene Photograph 25500026, Corpus Christi Police Dep’t (Feb. 4, 1983);
  34. Crime Scene Photograph 25500027, Corpus Christi Police Dep’t (Feb. 4, 1983);
  35. Crime Scene Photograph 25500028, Corpus Christi Police Dep’t (Feb. 4, 1983);
  36. Crime Scene Photograph 25500030, Corpus Christi Police Dep’t (Feb. 4, 1983);
  37. Death Sentence After Mandate, State v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989);
  38. Def.’s First Am. Mot. for New Trial, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Aug. 30, 1983);
  39. Disciplinary Hr’g Record, Texas Dep’t of Corrections (May 16, 1984);
  40. Disciplinary Report, Texas Dep’t of Corrections, (May 14, 1984);
  41. Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 5, 1983);
  42. Findings of Fact and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 22, 1989);
  43. First Am. Appl. for Writ of Habeas Corpus and Br., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. June 29, 1988);
  44. First Am. Mot. for a New Trial, Texas v. DeLuna, 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 12, 1983)
  45. Joel Infante, Corpus Christi Police Identification Technician, Field Investigation Report (Feb. 4, 1983);
  46. Judgment, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989);
  47. Judgment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. at Sept. 12, 1983);
  48. James Lawrence, Aff. (Aug. 8, 1983);
  49. Letter from Richard A. Anderson to Judge Dunham (Oct. 7, 1986);
  50. Letter from Richard Banks, Executive Administrator, to Attorneys in DeLuna v. State, No. 16,436–01 (Tex. Crim. App. Oct. 13, 1986);
  51. Letter from Carlos DeLuna, Defendant in Killing of Wanda Lopez, to Judge Dunham (Nov 17, 1983), Nueces County Court records at 10 of 73;
  52. Letter from Carlos DeLuna to Noel Gutierrez (Nov. 10, 1988);
  53. Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (July 27, 1983);
  54. Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (Aug. 9, 1983);
  55. Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (Sept. 17, 1983);
  56. Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (Jan. 21, 1984);
  57. Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (May 24, 1984);
  58. Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (May 27, 1988);
  59. Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (June 30, 1988);
  60. Letter from Oscar Soliz, District Clerk, to James Lawrence, Trial Lawyer for Carlos DeLuna (Jan. 6, 1984);
  61. 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);
  62. Mem. of Law on Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989);
  63. Mem. of Law on Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989);
  64. Mem. of Law on Appl. for Stay of Execution, DeLuna v. Lynaugh, No. 89–6262 (5th Cir. Dec. 4, 1989);
  65. Memorial Medical Center Records, Multidisciplinary Assessment (July 28, 1995);
  66. Mot. for a New Trial, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Aug. 9, 1983);
  67. Mot. for New Counsel, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 17, 1983);
  68. Mot. for Relief from Order, Mot. for Certificate of Probable Cause and Notice of Appeal, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989);
  69. Mot. for Stay of Execution, Ex parte DeLuna, No. 16,436–01 (Tex. Crim. App. Oct. 9, 1986);
  70. Mot. to Attach Affs. and Evidentiary Matters to Previously Filed Pleadings, DeLuna v. McCotter, No. C–86–234 (S.D. Tex. July 12, 1988);
  71. Mot. to Dismiss, State v. Hernandez, No. 86-CR–1032-B (Nueces Cty., 117th Dist. Tex. Dec. 22, 1986);
  72. 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);
  73. Mot. to Withdraw Exs., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 22, 1983);
  74. Order Appointing Att’y, State v. Hernandez, No. 86-CR–1032 (Nueces Cty., 117th Dist. Tex. Nov. 13, 1986);
  75. Order Appointing Att’y James Lawrence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 12, 1983);
  76. Order, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 4, 1989) (page 6 of motion and proposed order);
  77. Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 9, 1986);
  78. Order Denying Mot. for Stay of Execution, DeLuna v. Lynaugh, No. 88–2613 (5th Cir. June 29, 1989);
  79. Order Denying Mot. of Appellant to Recall the Mandate and Stay the Setting of an Execution Date, DeLuna v. Lynaugh, No. 88–2613 (5th Cir. June 29, 1989);
  80. Order Denying Pets. for Habeas Corpus and Stay of Execution, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989);
  81. Order Granting Mot. to Dismiss, State v. Hernandez, No. 86-CR–1032-B (Nueces Cty., 117th Dist. Tex. Dec. 31, 1986);
  82. Order Granting Mot. to Withdraw Exs., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 22, 1983);
  83. 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);
  84. Order Granting Statutory Att’y Fee for James Lawrence, Texas v. DeLuna, 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 26, 1983);
  85. Order on Habeas Corpus Appl. from Nueces Cty., Ex parte DeLuna, No. 16,436–02 (Tex. Ct. Crim. App., Nov. 29, 1989);
  86. 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);
  87. Pet. for a Writ of Cert., DeLuna v. Lynaugh, 493 U.S. 999 (1989) (cert. denied Aug. 2, 1989);
  88. Pet’r’s Objections to State’s Proposed Findings of Fact and Conclusions of Law, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 17, 1989);
  89. Pet’r’s Objections to Trial Ct.’s Findings of Fact and Conclusions of Law, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 24, 1989);
  90. 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);
  91. Proposed Findings of Fact, Conclusions of Law, and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 15, 1989);
  92. Reception of Carlos DeLuna at Ellis Unit of the Texas Department of Corrections (July 26, 1983);
  93. Resp’t’s Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Nov. 10, 1986);
  94. Resp’t’s Mot. to Dismiss for Abuse of the Writ and, Alternatively, Answer, Mot. for Summ. J., and Supporting Br., DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Nov. 30, 1989);
  95. Resp’t’s Mot. to Expedite, DeLuna v. Lynaugh, No. C–86–234 (S.D. Tex. Feb. 3, 1988);
  96. Resp’t’s Original Answer to Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 13, 1989);
  97. Sentence After Mandate, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 23, 1986);
  98. Subpoena of Estella Flores Jimenez, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sep. 9, 1983);
  99. Suggestion for Reh’g En Banc, DeLuna v. Lynaugh, No. 88–2613 (5th Cir. May 10, 1989);
  100. Unit Classification Review Form for Carlos DeLuna, Texas Dep’t of Corrections (Apr. 3, 1984);

Transcribed Videotape Interviews

  1. Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter in Dallas, Texas (Feb. 28, 2005);
  2. Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005);
  3. Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005);
  4. Transcribed Videotape Interview with Vicky Gutierrez, Half-Sister of Carlos DeLuna, in Garland, Texas (Feb. 27, 2005);
  5. Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez in Corpus Christi, Texas (Dec. 9, 2004);
  6. Transcribed Videotape Interview with Rev. Carroll Pickett, Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005);
  7. Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Texas (Feb. 26, 2005);
  8. Transcribed Videotape Interview with Richard Louis Vargas, Brother of Wanda Lopez, in Corpus Christi, Texas (Dec. 4, 2004);
  9. Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005);
  10. Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004);

Notes from Other Interviews

  1. James S. Liebman’s Notes on Interview with Linda Carrico, Corpus Christi Newspaper Reporter (Sept. 2004);
  2. James S. Liebman’s Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004);
  3. James S. Liebman’s Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Jan. 21, 2005);
  4. James S. Liebman’s Notes on Interview with Bill May, Corpus Christi Criminal Defense Attorney and Former Assistant District Attorney (July 13, 2004);
  5. James S. Liebman’s Notes on Interview with Dina Ybañez, Neighbor of Carlos Hernandez (July 13, 2004);
  6. Peso Chavez’s Notes on Interview with Dina Ybañez, Neighbor of Carlos Hernandez (June 14–15, 2004);
  7. Peso Chavez’s Notes on Interview with Johnny Ybañez, Neighbor of Carlos Hernandez (Aug. 4, 2004);

News Reports

  1. Acquitted Man Hopes Arrest of Another Man Will Help Clear his Name, Corpus Christi Caller-Times, July 25, 1986;
  2. Associated Press, Inmate Gains Stay 12 Hours Before Set Execution, Oct. 15, 1986;
  3. Associated Press, Inmate Given Reprieve Hours Before Execution, Dallas Herald Times, Oct. 15, 1986;
  4. Libby Averyt, City Man Is Jailed in 7-Year-Old Murder Case, Corpus Christi Caller-Times, July 25, 1986;
  5. Transcribed VHS Tape of NewsWatch 10 Reports by Karen Boudrie, TV News Reporter (1984–85);
  6. Linda Carrico, City Man Gets Execution Date for ’83 Slaying, Corpus Christi Caller-Times, July 24, 1986;
  7. Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times, Oct. 14, 1986;
  8. Linda Carrico, Judge Grants DeLuna Stay of Execution, Corpus Christi Caller-Times, Oct. 15, 1986;
  9. Kathy Fair, Condemned Man Appeals Case to Supreme Court, Hous. Chron., Dec. 6, 1989;
  10. Kathy Fair, DeLuna Waits for Execution in ’83 Murder, Hous. Chron., Dec. 7, 1989;
  11. Kathy Fair, Each Tick of Clock Increases Terror of Condemned Killer, Hous. Chron., Nov. 30, 1989;
  12. Sandra Forero, Judge Frees Man Charged in Murder, Corpus Christi Caller-Times, Jan. 1, 1987;
  13. John Gonzalez, Texans Await Execution Ruling: Supreme Court to Hear Racial Challenge to Death Penalty, Dallas Morning News, Oct. 14, 1986;
  14. Judge Blocks Execution of DeLuna, Oct. 15, 1986;
  15. Frank Klimko, State Appeals Court Refuses to Block Texan’s Execution, Hous. Chron., Oct. 14, 1986;
  16. David Teece, Judge Lifts Stay of Execution for DeLuna, Corpus Christi Caller-Times, July 20, 1988;
  17. Texas Clerk Killer Executed, as Father, Stepmother Watch, Palm Beach Sun Sentinel, May 15, 1985, available at http://articles.sun-sentinel.com/1985-05-15/news/8501190637_1_rosa-store-clerk-la. Archived at: http://perma.cc/P7CC-YF6Y.
  18. Texan Is Put to Death by Injection For Killing Woman in a Robbery, N.Y. Times, Dec. 8, 1989, available at http://www.nytimes.com/1989/12/08/us/texan-is-put-to-death-by-injection-for-killing-woman-in-a-robbery.html?pagewanted=print&src=pm. Archived at: http://perma.cc/N8K9-BW5Z.
  19. Cindy Tumiel, Convicted Killer Executed After Court Rejects Appeals, Corpus Christi Caller-Times, Dec. 7, 1989;
  20. United Press International, Full Court Denies Stay of Execution: DeLuna Scheduled to Die, Oct. 14, 1986;

Other Secondary Sources

  1. Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 Hum. Rts. 14 (1987);
  2. Julia E. Boaz, Summary Processes and the Rule of Law: Expediting Death Penalty Cases in the Federal Courts, 95 Yale L.J. 349 (1985)
  3. Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure (6th ed. 2011);
  4. 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);
  5. James S. Liebman & Peter Clarke, Minority Practice, Majority’s Burden: The Death Penalty Today, 90 Ohio St. J. Crim. Law 255 (2011);
  6. http://www.mediation.com/memberprofile/steve–schiwetz-78401-8c.aspx. Archived at: http://perma.cc/KP65-6VQ2.
  7. Tracy L. Snell, Bureau of Justice Statistics Tables, Capital Punishment 2009 (Dec. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cp09st.pdf. Archived at: http://perma.cc/WY3W-PVBU.
  8. Adam Thurschwell, Federal Courts, the Death Penalty, and the Due Process Clause: The Original Understanding of the ‘Heightened Reliability’ of Capital Trials, 14 Fed. Sent’g Rep. 14 (2001);

Figure 15.1:

image

(Left) Prosecutor Kenneth Botary’s motion of July 22, 1983, to withdraw the physical evidence in the DeLuna case from the court file, and order granting the motion. (Right) Part of the list of exhibits that Botary asked to withdraw, in which he inadvertently attributed to “Carlos Hernandez” items that relate entirely to Carlos DeLuna.

 
 
 

Figure 15.2:

image

Portrait of Carlos DeLuna, with inscription “Con Todo Respeto [With All Respect] By, Jesse S. De La Rosa, ‘85’.” Texas executed De La Rosa on May 14, 1985.

 
 
 

Figure 15.3:

image

Mid-1980s television news reports by Karen Boudrie in which she interviewed Carlos DeLuna on death row (top); Rene Rodriguez, lawyer for the Vargas family in their suit against Diamond Shamrock (bottom left); and former prosecutor Steven Schiwetz (bottom right).