5th Circuit Allows Death Row Inmate’s Appeal

     (CN) — A Texas death row inmate can pursue an appeal of his sentence, the Fifth Circuit ruled, because his former attorneys didn’t explore evidence that he has fetal alcohol syndrome.
     Carlos Trevino was convicted in 1997 of murdering 15-year-old Linda Salinas. Police found Salinas’ body in a park in San Antonio, Texas, on June 10, 1996, a day after she had gotten into a car with Trevino­­, his cousin Juan Gonzales and three other friends.
     Instead of driving the girl to a fast-food restaurant as they had promised, they took her to the park and three of them raped her, according to the case record.
     Gonzales testified for the prosecution that Trevino ­­did not rape Salinas but he held her down while someone else did.
     Gonzales also testified that Trevino ­­urged him to join in the gang rape but he refused, that Trevino­­ talked about the need to eliminate Salinas as a witness, and that he bragged after the murder that he “learned how to kill in prison” and “learned how to use a knife in prison.”
     An autopsy showed Salinas died from a stab wound to the neck. Forensic experts found fibers from Trevino­­’s slacks on her clothes and determined Trevino couldn’t be ruled out as the source of DNA found in her panties.
     During the punishment phase of Trevino­­’s capital murder trial, his attorney only called one witness, Trevino­­’s aunt, Juanita Trevino DeLeon. She testified that Trevino­­ had a rough childhood—his family was on welfare, he dropped out of high school and his mother was an alcoholic, according to a rehash of the case in the Fifth Circuit’s July 11 ruling.
     The trial attorney first met DeLeon in the Bexar County Courthouse basement during a lunch break in the proceedings, before she testified that afternoon, according to Trevino’s second amended federal habeas complaint.
     The trial court sentenced Trevino­­ to death after he rejected a plea offer that would have spared his life. The court appointed Trevino­­ a different attorney to handle his direct state appeal, and a third attorney to seek state collateral relief.
     Neither of Trevino­­’s state appellate attorneys raised the argument that he was denied his Sixth Amendment right to effective counsel based on his trial attorney not investigating potentially mitigating evidence that he suffers from fetal alcohol syndrome.
     After the trial court and the Texas Court of Criminal Appeals denied relief, Trevino­­ filed a federal habeas petition and was appointed another attorney, who claimed for the first time that his trial attorney was ineffective for not rounding up and presenting mitigating evidence.
     The attorney told U.S. District Judge Xavier Rodriguez in San Antonio that his own investigation revealed Trevino­­’s mother had abused alcohol while pregnant with him, that Trevino weighed four pounds at birth, and that he had suffered from fetal alcohol syndrome symptoms throughout his life.
     Rodriguez stayed the federal case to let Trevino­­ raise the claim in the state trial court, which ruled that because he had not made the argument in his initial post-conviction proceedings, he was barred from making it.
     Rodriguez denied his federal habeas petition on the same procedural grounds. So did the Fifth Circuit.
     But the U.S. Supreme Court breathed life into Trevino­­’s case with its 2012 ruling in Martinez v. Ryan, in which it held a federal habeas petitioner is not barred from making an ineffective counsel claim if the state’s habeas rules require them to make the argument during their first state habeas proceeding and their attorney was ineffective.
     Trevino­­ appealed to the Supreme Court and hit paydirt.
     “The Court applied the rule of Martinez to Texas’ scheme for post-conviction relief, i.e.: ‘[A] procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.’ Accordingly, it remanded to the Fifth Circuit,” Judge W. Eugene Davis wrote for a unanimous three-judge panel of the federal appellate court.
     The Fifth Circuit sent the case back down to Rodriguez, who ordered Trevino to file a second amended­­ habeas petition.
     Without holding a hearing, Rodriguez denied the petition in June 2015, finding that even the new Supreme Court precedent did not excuse Trevino’s procedural default — and even if he did clear that hurdle, the new mitigating evidence did not overcome Trevino­­’s lack of remorse for the crime, the deciding factor for Rodriguez.
     “Salinas’ murder was particularly brutal and senseless. Yet petitioner has consistently refused to acknowledge his role in her murder, even to his own trial counsel, claiming instead to have been ‘too stoned’ to remember exactly what happened that evening. Petitioner’s own affidavit, executed June 11, 2004, contains not even a scintilla of sincere contrition,” Rodriguez wrote.
     Rodriguez disregarded affidavits from the mother of Trevino’s two children, his friend, his employer and his sister, that vouched for Trevino’s character, finding the material was “double-edged” because it also included aggravating evidence that he “was ‘always high’ from sniffing spray paint, that he was abusive to the mother of one of his children and had two sides to his personality, that he was ‘always jealous,’ ‘angry,’ ‘violent,’ and ‘impulsive’ even when he was not drunk, and that he always had a gun,'” Davis wrote, citing Rodriguez’s June 2015 order.
     But Rodriguez acknowledged in his ruling that a psychological assessment Trevino’s defense commissioned for him did present some mitigating evidence.
     Dr. Rebecca A. Dyer met with Trevino for 12 hours in prison where she ran a battery of tests on him, and interviewed his mother, before determining he suffers from fetal alcohol effects.
     The prognosis, Dyer explained, means Trevino displays some, but not all, of the characteristics of fetal alcohol syndrome, namely a low IQ and history of behavioral and memory problems and substance abuse.
     “These deficits would not only have impacted any of Mr. Trevino’s decisions to participate in or refrain from any activities that resulted in his capital murder charges, but also likely impacted his ability to understand and make appropriate decisions about the plea offer presented by his counsel,” Dyer wrote in her report.
     The Fifth Circuit decided Monday that the fetal alcohol syndrome evidence “goes to the heart” of the aggravating evidence Rodriguez based his denial on, Davis wrote for the panel.
     Because Rodriguez himself admitted that Trevino’s lack of remorse could have been a product of his fetal alcohol effects, he should have given more weight to that evidence, the New Orleans-based appeals court found.
     “We conclude that reasonable jurists could debate whether the district court correctly dismissed his habeas claim with respect to potential evidence of his fetal alcohol syndrome or, more broadly, fetal alcohol spectrum disorder. Indeed, reasonable jurists would agree that the district court erred in prematurely dismissing that claim,” Davis wrote.
     The panel’s order gives Trevino permission to appeal the district court’s dismissal of his second amended habeas petition.
     Trevino’s attorney Warren Wolf said he will now file a brief with the Fifth Circuit, Texas will reply and a hearing will be held before the appeals court.

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