DeLuna v. Lynaugh
| Decision Date | 05 December 1989 |
| Docket Number | No. 89-6262,89-6262 |
| Citation | 890 F.2d 720 |
| Parties | Carlos DeLUNA, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
R.K. Weaver, Dallas, Tex., for petitioner-appellant.
William C. Zapalac, Asst. Atty. Gen., Enforcement Div., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before POLITZ, WILLIAMS and JONES, Circuit Judges.
Appellant, Carlos DeLuna, was convicted of capital murder and sentenced to death by lethal injection. On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and the sentence. See, DeLuna v. State, 711 S.W.2d 44 (Tex.Crim.App.1986).
In a prior habeas corpus proceeding, this Court considered appellant's claims (1) that he received inadequate assistance of counsel at trial, (2) that he was entitled to an oral hearing before the court on his habeas claim, and (3) that he was denied effective assistance of counsel on appeal. DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 259, 107 L.Ed.2d 208 (1989). The Court determined that these claims were not meritorious and upheld the district court's denial of the application for writ of habeas corpus. Id.
After the Supreme Court refused appellant's petition for writ of certiorari, the state trial court, on November 2, 1989, rescheduled the execution for December 7, 1989. Appellant then filed another application for writ of habeas corpus in the state court. The trial court entered findings of fact and referred the matter to the Court of Criminal Appeals. The Court of Criminal Appellant next filed this current petition as a second application for writ of habeas corpus in federal district court. The district court denied the request in a thorough and well-reasoned order. The court granted a certificate of probable cause to appeal. 28 U.S.C. Sec. 2253.
Appeals denied appellant's requested relief.
After careful consideration, we concur in the district judge's findings and conclusions. His order is attached for further reference. In addition, we add our own supplementary conclusions by way of emphasis. Appellant asserts the following three claims as alternate grounds for his relief.
(1) The Texas death penalty statute, Tex.Code Crim.Proc.Ann. art. 37.071, as applied to appellant, denied him his constitutional rights because it did not allow for the effective presentation or consideration of mitigation evidence concerning appellant's past difficulties with drug and alcohol abuse, his personal background, his youth, or his mental condition;
(2) The Texas death penalty statute, as applied to appellant, denied him his constitutional rights because the jury was fundamentally misled as to the meaning of "deliberately" in Special Issue Number One; and
(3) Appellant was denied his constitutional right to discharge his appointed trial attorneys and represent himself on appeal.
The State of Texas responds that each of these claims should be dismissed for abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts.
Appellant argues that under Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), he was entitled to a jury instruction on the effect of his mitigating evidence. It is clear from the record, however, that appellant introduced no mitigating evidence at trial. In our prior habeas consideration, we concluded that it was a reasonable tactical decision of appellant and his counsel not to submit evidence in mitigation because such evidence would have opened the door to the introduction in evidence of a prior criminal record of appellant which otherwise was not before the jury. See, DeLuna v. Lynaugh, 873 F.2d 757, 759-60 (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, 109 S.Ct. 2934.
Appellant also is not within the Penry rule because of the kind and quantum of mitigating evidence appellant now claims he would have offered. Penry produced considerable mitigating evidence of his mental retardation and abused background. Appellant, on the other hand, suggests that, given a mitigation instruction, he would have offered evidence of "his past difficulties with drug and alcohol abuse, his personal background, his youth, and his mental condition." 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. Two different examiners concluded that appellant was malingering. As to youth, appellant was 21 when the crime was committed. We must conclude that appellant has made no showing of mitigating evidence that could even arguably bring him within the Penry rule.
Appellant argues that under Penry, he was entitled to an instruction on the meaning of "deliberately" as "deliberately" was used in the first special issue. The Court in Penry ruled that it was error to fail to define "deliberately" because without such a definition, the jury could not adequately consider Penry 's mitigating evidence of the incapaciting effect of his mental
retardation. Again, appellant has not produced at any time any evidence of mental retardation which could have had any impact upon his ability to act deliberately. We conclude therefore that this is not a case requiring protection of an accused who might be unable to act deliberately.
Appellant's final claim is that he was denied the right to represent himself on appeal. The district court dismissed this claim for abuse of the writ because appellant presented no excuse for his failure to assert this claim in his earlier proceeding. The law as to such a claim was established well before the first habeas petition. Any such claim had to be made at that earlier time. We agree that this conclusion was correct.
We have given full serious consideration to each of appellant's claims. Because we conclude that these claims are without merit, DeLuna's requests for a stay of execution and for habeas corpus relief are denied.
v.
James A. Lynaugh, Director,
Texas Dept. of Corrections, Respondent.
ORDER DENYING PETITIONS FOR HABEAS CORPUS AND FOR STAY OF EXECUTION
Petitioner's applications for a writ of habeas corpus and a stay of execution are denied. 28 U.S.C. Sec. 2254. The Court has considered petitioner's arguments in this second petition filed in federal court and has determined that no relief is warranted.
PROCEDURAL HISTORY
Respondent has lawful and valid custody of DeLuna pursuant to a judgment and sentence of the 28th Judicial District Court of Nueces County, Texas, in Cause No. 83-CR-194-A, styled The State of Texas v. Carlos DeLuna. DeLuna was indicted for the February 4, 1983, murder of Wanda Lopez while in the course of committing and attempting to commit robbery, a capital offense. He pleaded not guilty to the indictment and was tried by a jury. A jury was impaneled on July 13, 1983, and the trial began afterwards. The jury found DeLuna guilty of capital murder on July 20, 1983. After a separate hearing on punishment, the jury returned affirmative answers to the special issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071(b) (Vernon Supp.1989). Accordingly, DeLuna's punishment was assessed at death by lethal injection. His conviction and sentence were affirmed on direct appeal on June 4, 1986. DeLuna v. State, 711 S.W.2d 44 (Tex.Crim.App.1986).
The trial court scheduled DeLuna's execution to take place before sunrise on October 15, 1986. DeLuna filed a motion for leave to file an out of time petition for writ of certiorari in the Supreme Court, which was denied on October 10, 1986. He then filed a request for stay of execution and an application for writ of habeas corpus in the state convicting court. On October 13, 1986, the Court of Criminal Appeals denied all requested relief. Ex parte DeLuna, No. 16,436-01. 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. 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. On June 13, 1988, this Court issued its After full briefing of the issues, the Court of Appeals for the Fifth Circuit affirmed this Court's denial of relief. DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir.1989). Rehearing was denied on May 26, 1989. The Supreme Court denied the petition for writ of certiorari on October 10, 1989. DeLuna v. Lynaugh, --- U.S. ----, 110 S.Ct. 259 (1989).
order denying habeas corpus relief. DeLuna v. Lynaugh, No. C-86-234 (S.D.Tex.1988). DeLuna then filed a motion for relief from order pursuant to Fed.R.Civ.P. 60(b) on June 29, 1988, along with an amended petition for writ of habeas corpus. On July 12, 1988, DeLuna sought leave to attach affidavits and other evidentiary material to his amended petition. The Court denied the motion for relief from judgment on July 19, 1988
On November 2, 1989, the trial court scheduled DeLuna's...
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