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Jull 21988 for the SOUTHERN DISTRICT of TEXAS JESSE E

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Jull 21988 for the SOUTHERN DISTRICT of TEXAS JESSE E OERK, U S DISTRICT COURT SOuTHERN DISTRICT OF TEXAS FI LED IN THE UNITED STATES DISTRICT COURT JUll 21988 FOR THE SOUTHERN DISTRICT OF TEXAS JESSE E. CLARK, CLERK CORPUS CHRISTI DIVISION BY DEPUTY:'1';, ~ CARLOS DELUNA § § V. § C.A. NO. C-86-Z34 § O. L. MCCOTTER, DIRECTOR, § TEXAS DEPARTMENT OF § CORRECTIONS OR HIS SUCCESSOR § ~MO~T~I~O~N __TO ATTACH AFFIDAVITS ___AN___D EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS TO THE HONORABLE HAYDEN W. HEAD, JR., JUDGE, UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF TEXAS, CORPUS CHRISTI DIVISION: Comes now the Applicant, CARLOS DELUNA, and makes this his Motion to Attach Affidavits and other Evidentiary Matters to pleadings previously filed in this cause, and for cause.wou1d show unto the Court the following: I. The Court presently has before it a Motion for Relief from Order asking the Court to reconsider its Order dismissing Applicant's Petition for Writ of Habeas Corpus by Order filed June 13, 1988; in the alternative, a Motion for MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS - Page 1 ---­ Ht62/071188/DELuNAI-2 I ~ Certificate of Probable Cause and Notice of Appeal to the Court of Appeals for the Fifth Circuit; and Petitioner's First Amended Application for Writ of Habeas Corpus and Brief. At the time of the dictation of those pleadings, Petitioner had not had sufficient opportunity to gather necessary affidavits and evidence in support of the allega­ tions contained in the pleadings and seeks through this Motion to have those affidavits and evidence amended to the respective pleadings. II. AFFIDAVITS Attached to this Motion are affidavits from wit­ nesses necessary to support Petitioner's claim for ineffec­ tive 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. Such affidavits from Petitioner's close friends and family members attest to their availability and desire to testify at the time of trial, the substance of their testimony, and the lack of contact with attorneys for the Petitioner, who failed to discharge their duty to investigate information for mitigation. Such failure to present mitigating evidence is the type of Sixth Amendment MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS - Page 2 '16Z/071188/DELUNAI-Z violation that is not subject to a harmless error analysis. Satterwhite v. Texas, U.S. (No. 86-6284, Decided May 31, 1988); Franklin v. Lynaugh, U.S. (No. 87-5546, Decident June 22, 1988); Penry ~ Lynaugh, 832 F.2d 915 (5th Cir. 1987) (Cert. Granted 7/88). The affidavits support the fact that an evidentiary hearing to determine whether such failure to investigate mitigating circumstances was in fact in violation of Petitioner's Sixth Amendment rights. III. EVIDENTIARY MATERIAL Also attached to this Motion are evidentiary material from the files of the trial lawyers, James R. Lawrence and Hector DePena, Jr., reflecting discovery given them by the State of Texas concerning Petitioner's activity of substance abuse which was never explored with the jury in mitigation of punishment, other than the offense itself was commi t ted after Petitioner had consumed several alcohol i c beverages. It is submitted that this extensive background of substance abuse, including chemical inhalence, which might have lessen Petitioner's responsibility for the homi­ c ide or mi t i ga ted against the death penalty was not pre­ sented because the present structure of the Texas Death MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS - Page 3 -­ 1162/071188/DELUNAl-2 Penalty Statute would have prevented the jury from con­ sidering such evidence as mitigating. As jurors under Texas Sentencing Structure under Article 37.01, Texas Code of Criminal Procedure, would be required to answer only Special Issue No. 1 (whether the murder was committed "deliberately") and Special Issue No. 2 (whether ther was a "probability" that Petitioner would continue to pose a "threat" of violent behavior that would consti tute a con­ tinuing threat to society) such evidence of substance abuse or mental disease or prompted by extensive substance abuse, while mitigating in the sense that would lessen respon­ sibility for murder, may actually have supported the finding of probability of future dangerousness. The failure of the Texas Sentencing Structure to give the jury a third option, i. e., to consider whether the evidence of mental illness resulting from drug abuse was substantial enough as a miti­ gating circumstance to call for a life sentence in face of the affirmative findings on the special issues prevented the defense attorneys from putting on and further investigating the mi tigat ing evidence revolving around substance abuse. Such failure to put on mitigating evidence and further investigate such possibility in light of the Texas Sentence, mayor may not have been trial strategy, and requires an evidentiary hearing to determine whether such activi ty was violative of Petitioner's Sixth Amendment rights. MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS --page 4 ---­ Ir6z/071188/DELUNAI-Z Q IJ IV. That the interest of justice require that the material contained in this Motion in the form of affidavits and evidentiary matters be attached and incorporated in Petitioner's previously filed Motion for Relief from Order, Motion for Certificate of Probable Cause, and Notice of Appeal and Petitioner's First Amended Application for Writ of Habeas Corpus and Brief in support of both of those pleadings. WHEREFORE, PREMISES CONSIDERED, it is respectfully prayed that the affidavits and evidentiary matters be attached and appended to Petitioner's First Amended Application for Writ of Habeas Corpus and Brief and Petitioner's Motion for Relief from Order, Motion for Certificate of Probable Cause and Notice of Appeal and MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS --page 5 '162/071188/DELUNAl-2 incorporated therein as if fully set out in support of such pleadings. RI 75219 ATTORNEY FOR PETITIONER CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion has been forwarded to Mr. William C. Zapalac, Assi stant Attorney General, 200 W. 14th, Supreme Court Building, Sixth Floor, Austin, Texas, 78711; Mr. Richard Windhorst, Fifth Circuit, Court of Appeals, 500 Camp Street, New Orleans, Louisiana, 70130, and Mr. Christopher MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS - Page 6 -­ 116Z/071188/DELUNAI-Z Vasil, United States Supreme Court, One First Street, North East, Washington, D.C., 20543. SIGNED this the ~day of -......;.-t-,---­J~ , 1988. CERTIFICATE OF CONFERENCE That at the time of the dictation of this Motion, I did not have an opportunity to talk to Mr. William C. Zapalac, Assistant Attorney General. MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOU~Y FILED PLEADINGS --page 7 -­ H16z/071188/DELUNAI-2 \ AFFIDAVITS 1162/071188/DELUNA4 AFFIDAVIT SfATE OF TEXAS * KNJW AU. MEN F!{ TIiESE PRESENTS: COUNIY OF DALI..J\S * "My name is Mary Arredomo, am I am over the age of 21 years of age am am fully competent to make this Affidavit. I am the sister of Carlos Delllna who is presently an inmate on death row at the Ellis Unit in the Texas Department of Corrections. I am presently employed at Texas Instruments. My phone number am address are (214) 278-7881­ 301 East Miller, Garlan:L Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude. I was never contacted by the attorneys to testify. If I had been called by the lawyers to testify, I would have told the jury many things concerning Carlos' life that I believe would have mitigated against the jury giving the death penalty. My brother Carlos Delllna is very dear to me. He is the YOUI¥Jest boy from a family of nine. As he was growing up we spent lots of hO\.n"S in movies, carnivals, parks an:i so on. As the years went by he would go to our home after some of us had gotten married am spent many hO\.n"S with us. He enjoyed the family gatherings am holidays at Mom's house. It was always something we all looked forward to. I remember when Carlos got a job at What-A-Burger. He couldn't wait to get paid. That day he came home with a lot of bJrgers am fries for all of us. He was very generouse .with his nephews, always taking them places am buying them things. Till this day I fim it hard to believe that he is where he's at. I was at his trial till the em. I thought that another person was being tried. The lawyer ~asked me to testify for his behalf. I might be wrong in saying this, but I never thought he had good. representation from the appointed. attorney. Carlos was already judged. guiI ty before he stepped into the door by the media, all the newspapers. I believe Carlos deserves a chance. He was very yOl.lOJ at the time. When I talk to him now I can see~s wiser am at peace with himself. He is very close to our Lord, Jesus Olrist. Carlos needs kirxlness am another chance with his family who loves him so much. I am presently available am willing to testify concerning these facts. as I was during the time of the investigation am trial of Carlos' case." \. i-, ~lBED AND SWORN TO BEFORE ME on this the J:l+1; day of ~~r .~OO. _ PUBLIC 1: FOR nlE STATE 9F T,EfXAS I I .Tj1ij(~(\ Commission Expires AFFIDAVIT srATE OF TEXAS * KOOW AIL MEN BY 1HES.E PRESENTS: COUNIY OF DAll..AS * "My name is Robert Arredoooo.
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