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IN THE UNITED STATES DISTRICT COURT

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IN THE UNITED STATES DISTRICT COURT Powered By Docstoc
					                    IN THE UNITED STATES DISTRICT COURT
                     FOR THE WESTERN DISTRICT OF TEXAS
                            SAN ANTONIO DIVISION

______________________________________

                                     §
HUMBERTO LEAL GARCIA,                §
                                     §
                    Petitioner,      §
                                     §
            -vs-                     §
                                     §   CIVIL ACTION NO. ______
RICK THALER,                         §
Director, Texas Department of        §
Criminal Justice, Correctional       §
Institutions Division,               §
                                     §
                    Respondent       §



                     PETITION FOR WRIT OF HABEAS CORPUS

     THIS IS A CAPITAL CASE. MR. LEAL IS SCHEDULED TO BE EXECUTED
                              ON JULY 7, 2011


                                         Sandra L. Babcock
                                         Texas Bar No. 01481700
                                         Clinical Professor of Law
                                         Northwestern University School of Law
                                         357 E. Chicago Avenue
                                         Chicago, Illinois 60611
                                         (312) 503-0114 (tel.)
                                         (312) 503-2798 (fax)

                                         Maurie Levin
                                         Texas Bar No. 00789452
                                         University of Texas School of Law
                                         Capital Punishment Center
                                         727 East Dean Keeton
                                         Austin, TX 78705
                                         (512) 232-7795
                                         (512) 232-9171 (fax)

                                         Attorneys for Petitioner
                                                   TABLE OF CONTENTS

I. JURISDICTION, VENUE, AND TIMELINESS ......................................................................6

II. STATEMENT OF FACTS ........................................................................................................7

III. PRIOR PROCEEDINGS ...........................................................................................................8

     A. Proceedings Prior to the Avena Judgment and President‘s Determination ..........................8

     B. The Avena Case in the International Court of Justice ..........................................................8

     C. The Determination by the President of the United States to Comply with the
        Avena Judgment in the Case of Mr. Leal and the 50 Other Mexican Nationals ................10

     D. The Texas Court of Criminal Appeals‘ Dismissal of Mr. Leal‘s Petition Filed
        Pursuant to the Presidential Determination........................................................................10

     E. Prior Proceedings Before this Court (2007).......................................................................11

     F. The U.S. Supreme Court‘s Decision in Medellin v. Texas (2008) .....................................11

     G. Proceedings in the Fifth Circuit (2008) .............................................................................13

     H. Proceedings Before the International Court of Justice (2008-09) .....................................13

     I. Proceedings Before the Inter-American Commission on Human Rights ..........................14

     J. Legislative Efforts to Implement Avena (2008-11) ..........................................................16

     K. Further Political and Diplomatic Efforts to Effect Compliance with the Avena
        Judgment ............................................................................................................................19

IV. STANDARD OF REVIEW .....................................................................................................20

V. GROUNDS FOR RELIEF. ......................................................................................................21

     A. The Supreme Court and Executive Branch Agree that Mr. Leal Has the Right to
        Review and Reconsideration of His Conviction and Sentence Under the Avena
        Judgment. ...........................................................................................................................21

     B. Congress Has Moved Steadily Toward Passage of Legislation That Would
        Implement Mr. Leal‘s Right to a Judicial Hearing. ...........................................................22

     C. Mr. Leal Has Rights to Life and Due Process Under the United States
        Constitution That Entitle Him to Reasonable Access to a Remedy Required Under
        a Binding International Legal Obligation. .........................................................................24
D. Mr. Leal Would Benefit from the Consular Notification Compliance Act Because
   He Has Not Received the Review and Reconsideration Mandated by the Avena
   Judgment, and Because the Violation of Article 36 in His Case Resulted in Actual
   Prejudice. ...........................................................................................................................26

     1. Mr. Leal Has Not Received Review and Reconsideration as Required by
        Avena............................................................................................................................26

     2. The Vienna Convention in Mr. Leal‘s Case Resulted in Actual and Substantial
        Prejudice. .....................................................................................................................29

           a. Mr. Leal Did Not Know He Had a Right to Contact His Consulate for
              Assistance. .............................................................................................................30

           b. Mr. Leal Would Have Contacted the Mexican Consulate Had He Been
              Apprised of His Rights...........................................................................................30

           c. Mexico Would Have Provided Substantial Assistance to Mr. Leal.......................31

     3. Even Under a Stricter Prejudice Standard, the Record in This Case Clearly
        Establishes Overwhelming Prejudice. .........................................................................33

           a. Consular Assistance Would Have Transformed the Quality of Mr. Leal‘s
              Defense at the Culpability Phase ...........................................................................34

                i.    The Testimony of the Law Witnesses Did Not and Could Not
                      Establish That Mr. Leal Kidnapped or Sexually Assaulted Ms.
                      Sauceda ............................................................................................................36

                ii. The State's DNA Evidence Was Antiquated and Meaningless, Yet
                    the Defense Failed Effectively to Challenge It ................................................37

                iii. Bite Mark Evidence Generally, as well as the Bite Mark "Evidence"
                     Introduced Against Mr. Leal at Trial Specifically, Both Amount to
                     Junk Science.....................................................................................................40

                iv. Mr. Leal's Parents Were Never Called as Witnesses To Explain the
                    Presence of Ms. Sauceda's Blouse in Mr. Leal's House...................................42

                v. Others Had the Opportunity and Motive to Sexually Assault the
                   Victim ..............................................................................................................43

                vi. A Rational Jury Could Not Have Convicted Mr. Leal of Kidnapping
                    on the Basis of the Evidence Introduced at Trial .............................................44

           b. Consular Assistance Would Have Resulted in the Presentation of Powerful
              and Compelling Mitigation ....................................................................................46


                                                                 ii
                   i.   The Prosecution's Aggravating Evidence Was Weak Yet Uncontested
                        by the Defense..................................................................................................47

                   ii. With the Assistance of Investigators and Experts Funded by the
                       Mexican Consulate, the Jury Would Have Heard Compelling
                       Mitigating Evidence That Would Have Persuaded at Least One of
                       Them Not to Vote for Death ............................................................................49

              c. Consular Assistance Would Have Facilitated a Plea Agreement ..........................56

              d. The Inter-American Commission Has Determined That Mr. Leal Was
                 Prejudiced by the Violation of the Vienna Convention in His Case......................57

VI. PRAYER FOR RELIEF ..........................................................................................................59




                                                                 iii
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:

       Applicant Humberto Leal García hereby petitions this Court to issue a writ of habeas

corpus on grounds that his custody violates the Constitution, laws and treaties of the United

States. Mr. Leal also seeks a stay of execution to allow Congress a meaningful opportunity to

implement the ―Consular Notification Compliance Act,‖ legislation that would provide Mr. Leal

with the right to federal review of his consular rights violation in accordance with the judgment

of the International Court of Justice in Avena and Other Mexican Nationals (Mex. v. U.S.A.),

2004 I.C.J. 12 [hereinafter ―Avena Judgment‖].

       Mr. Leal raises a single claim in this petition: namely, that he has a federal due process

right to remain alive so that he can benefit from legislation introduced June 14, 2011 in the

United States Senate. This legislation has the full support of the U.S. Government, and is the

product of years of careful consultation and negotiations between departments of the Executive

Branch and Members of Congress.         Most important, the legislation is designed specifically to

provide a remedy to Mr. Leal and other Mexican nationals whose cases were adjudicated by the

ICJ in Avena.

       This petition is not successive. The claim raised here arises as a result of legislation that

was introduced two days prior to the filing of the petition. The Fifth Circuit has recognized that

these circumstances entitle Mr. Leal to file a habeas petition that is not subject to the strictures of

28 U.S.C. § 2244:

    Leal contends that Congress will pass legislation requiring state compliance with the
    Avena decision. Such a law, or a State‘s refusal to comply with such a law, might
    provide a previously unavailable basis for a petition for habeas corpus, so our denial of
    Leal‘s instant petition with prejudice will not be an impediment to his filing yet another
    such petition, as it would not be successive either.
Leal v. Quarterman, 573 F. 3d 214, 224 n. 54 (5th Cir. 2009). In addition, this claim was not and

could not have been raised in the prior petition for habeas corpus relief filed with this Court as it

was not yet ripe for review. Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). Therefore, this

petition is properly filed in this Court and may not be dismissed as successive or as an abuse of

the writ under 28 U.S.C. § 2244.

       Mr. Leal has filed this petition at the earliest possible opportunity, only two days after the

introduction of legislation that would implement the ICJ‘s judgment in Avena. He intends to

simultaneously seek relief from the Texas courts on similar grounds. Because the Texas Court of

Criminal Appeals will not hear his claim if federal proceedings are ongoing, see Ex parte Soffar,

143 S.W.3d 804, 805-07 (Tex. 2004), he has therefore filed a motion to stay and abate these

proceedings to allow the Texas courts an opportunity to rule on his claims prior to his execution.



INTRODUCTION AND SUMMARY OF GROUNDS FOR RELIEF.

       Petitioner is one of the 51 Mexican nationals specifically named in the Avena judgment

of the ICJ. In the Avena case, Mexico brought suit against the United States on the ground that

the United States had violated the rights of Mr. Leal and other Mexican nationals on death row in

the United States under Article 36 of the Vienna Convention on Consular Relations, 21 U.S.T.

77, 596 U.N.T.S. 261 (―Vienna Convention‖), a treaty to which the United States and Mexico are

both parties. Among other things, Article 36 of the Vienna Convention requires authorities who

detain a foreign national to notify the individual of his rights to contact his nation‘s consulate,

and to afford the detained individual the opportunity to communicate with and seek assistance

from his nation‘s consulate. The ICJ held that the United States had violated the rights of Mr.

Leal under Article 36 and that, as a remedy, the United States was required to provide judicial




                                                 2
―review and reconsideration‖ of his conviction and sentence to determine whether, and how, the

Vienna Convention violation affected the fairness of his capital murder prosecution.

Significantly, the ICJ held that such review must take place without regard to procedural default

rules that would otherwise prevent the court from reaching the merits.

       In Medellin v. Texas, 128 S. Ct. 1346 (2008), the Supreme Court unanimously affirmed

that the United States has an international legal obligation to provide Mr. Leal with judicial

―review and reconsideration‖ under Avena and Other Mexican Nationals. Although the Court

held that neither it nor the President could unilaterally implement the ICJ‘s decision, it made

clear that the nation was not thereby absolved of its obligation to adhere to the judgment. To the

contrary, the Court held that Congress had the power to implement the judgment through the

legislative process.

       On June 14, 2011, Senator Patrick Leahy introduced the ―Consular Notification

Compliance Act,‖ which would grant Mr. Leal a right to the judicial process required by Avena.

The proposed bill specifically authorizes federal courts

    to review the merits of a petition claiming a violation of Article 36(1)(b) or (c) of the
    Vienna Convention on Consular Relations, or a comparable provision of a bilateral
    agreement addressing consular notification and access, filed by a person convicted and
    sentenced to death by any federal or state court prior to the date of enactment of this
    Act.

Ex. 1, Consular Notification Compliance Act, 112th Cong. (1st Sess. 2011), § 4(a)(1).

Significantly, the legislation provides that a petition raising a violation of Article 36 shall not ―be

considered a second or successive habeas corpus application or subjected to any bars to relief

based on pre-enactment proceedings other than as specified in paragraph (2) of this subsection.‖

Id. § 4(a)(4). The legislation further provides that if an execution date has been set, ―the court

shall grant a stay of execution if necessary to allow for its review of a petition filed pursuant to




                                                  3
Section 4(a)(1).‖ Id., § 4(a)(2). Although the legislation has the full backing of the U.S.

Government, including the Department of State, the Department of Justice, the Department of

Defense, and the Department of Homeland Security, there is insufficient time remaining before

July 7 for Congress to consider and pass the Act. Mr. Leal therefore respectfully requests that

this Court determine:

         Under these circumstances, Mr. Leal‘s rights to life and due process under the Fifth and

Fourteenth Amendments to the U.S. Constitution and to congressional implementation of the

protections afforded him by treaty commitments that constitute the ―supreme Law of the Land‖

under U.S. Const. art. VI, cl. 2, entitle him to habeas relief. Specifically, Mr. Leal has the right

to remain alive so that he may secure his access to the judicial review and reconsideration of his

conviction and sentence to which he is entitled by virtue of a binding international legal

obligation of the United States. Moreover, he is entitled to a stay of execution in order to prevent

the irreparable harm that would result to his rights to habeas, life, and due process arising from

that binding international legal obligation of the United States, when that obligation is in the

process of legislative implementation as a matter of U.S. law.

         Mr. Leal stands to benefit directly from the Consular Notification and Compliance Act.

As an initial matter, he has not received review and reconsideration of his Vienna Convention

violation in accordance with the criteria set forth by the ICJ in Avena. Every court to have

considered his claim has applied a procedural bar.1 The one body to have reviewed the evidence

pertaining to Mr. Leal‘s Vienna Convention violation under the standard required by the ICJ has

concluded that Mr. Leal was prejudiced by the violation of his Vienna Convention rights, and

recommended that he receive a new trial. Ex. 2, Medellín, Ramírez Cárdenas and Leal v. United

1
  For reasons set forth, infra, this Court‘s previous ―alternative‖ review of the merits does not constitute adequate
review and reconsideration.



                                                           4
States, Case 12.644, Inter-Am. C.H.R., Report No. 90/09, OEA/Ser/L/V/II.135, doc. 37 ¶¶ 128,

131-32, 160 (2009).

       Mr. Leal suffered actual prejudice as a result of the consular rights violation in his case.

Mr. Leal has presented undisputed evidence that the Mexican consulate would have provided

substantial and meaningful assistance in his capital murder trial if it had learned of his detention

prior to trial. Among other things, Mexico would have ensured that he was represented by

highly qualified and experienced defense counsel who would have challenged the prosecution‘s

reliance on junk science to obtain a conviction, and would have presented powerful mitigating

evidence at the penalty phase, including expert testimony regarding Mr. Leal‘s learning

disabilities, brain damage, and sexual abuse at the hands of his parish priest. With consular

assistance, there is a reasonable likelihood that Mr. Leal would not have been convicted, let

alone sentenced to death.

       In order to allow this case to proceed, a stay of execution is required. As explained

below and in the accompanying motion for stay of execution, this Court has the power to take

action that will avert an irreparable breach of the nation‘s treaty obligations in a manner fully

consistent with federal law. Moreover, this Court has the inherent power to grant a stay to

preserve its jurisdiction in the event that Congress passes legislation that will permit full

consideration of the issues raised in this application. All Writs Act, 28 U.S.C. §1651(a); See also

SEC v. Vision Communs, 74 F. 3d 287, 291 (D.C. Cir. 1996) (the All Writs Act ―empowers a

district court to issue injunctions to preserve its jurisdiction‖). Such a stay will avoid irreparable

harm not only to Mr. Leal‘s ability to vindicate his undisputed rights, but to the United States‘

ability to enforce its treaty commitments and to protect the lives of all Americans living, working

and traveling abroad. Because ―the Avena decision—a decision that flows from the treaties




                                                  5
through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention

disputes—constitutes an international law obligation on the part of the United States,‖ Medellin

v. Texas, 128 S. Ct. 1346, 1356 (2008), the agencies of the United States – including its courts –

have a responsibility to act diligently to assure that that obligation is met.

       Simply put, an execution in these circumstances would be contrary to the interests of law

and justice, and this Court has a singular duty to prevent it. This Court should exercise its

undisputed power to stay the execution and grant habeas relief until Congress can act consistent

with the Supreme Court‘s direction to bring the nation into compliance with its treaty

obligations.



I.     JURISDICTION, VENUE, AND TIMELINESS

       This court has personal jurisdiction and venue is proper under 28 U.S.C. § 2241(d)

because Mr. Leal Garcia was convicted in the 186th Judicial District Court in Bexar County,

Texas, located within the Western District of Texas, and is confined in Texas. The court has

subject matter jurisdiction under 28 U.S.C. §§ 1331, 2241, and 2254.

       Petitioner‘s instant application is timely filed under 28 U.S.C. § 2244(d) as it is filed

within one year of the introduction of the Consular Notification Compliance Act that would grant

Mr. Leal Garcia a federal right to the remedy mandated by the ICJ in Avena. This is not a

―second or successive habeas corpus application‖ within the meaning of 28 U.S.C. § 2244(b)

because the grounds asserted herein were premature, unripe, and did not exist at the time of filing

of petitioner‘s previous habeas corpus application. See, e.g., Slack v. McDaniel, 529 U.S. 473,

485-86 (2000); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-44 (1998). In particular, in

Leal v. Quarterman, the Fifth Circuit expressly recognized that Mr. Leal would be entitled to file

a future petition relying on new legislation. 573 F. 3d at 224 n. 54. Although the legislation has


                                                   6
not yet passed, its introduction with the full support of the U.S. Government—including the

Department of State, the Department of Justice, the Department of Defense, and the Department

of Homeland Security—is a substantial step toward full compliance with Avena.



II.    STATEMENT OF FACTS

       On March 31, 2004, the International Court of Justice (―ICJ‖) handed down its judgment

in Avena and Other Mexican Nationals. In the case of Mr. Leal, the Court found that the United

States had violated all of its obligations under Article 36(1) of the Vienna Convention on

Consular Relations, 21 U.S.T. 77, 596 UNTS 261 (hereinafter ―Vienna Convention‖), including

Mr. Leal‘s right to consular notification and access, and Mexico‘s corresponding right to assist in

his defense. The Avena judgment establishes, first, that the United States violated Mr. Leal‘s

Vienna Convention rights, and second, that the courts must now provide review and

reconsideration of his conviction and sentence in light of that violation, addressing the prejudice

caused by the Article 36 violation on its own terms, and without applying any procedural bars.

       The Vienna Convention violation in this case was no mere technicality.            Consular

authorities did not learn of Mr. Leal‘s plight until two years after he was condemned to death

when, in 1997, he wrote to them from death row after having learned of his consular rights – not

from notification by law enforcement, but from another death row inmate. It was clearly too late

by then for Mexico‘s assistance to affect the course of Mr. Leal‘s trial. As detailed below, the

Government of Mexico had an active and far-reaching program of consular assistance in 1994,

the year Mr. Leal was arrested. The United States has acknowledged that Mexico‘s consular

assistance program is ―extraordinary.‖ 1 Counter-Memorial of the United States of America

(Mex. v. U.S.), 2003 I.C.J. Pleadings (Avena and Other Mexican Nationals) 186 (Nov. 3, 2003).

And Oklahoma‘s highest court has recognized that Mexico was providing crucial assistance to its


                                                7
nationals facing the death penalty since at least 1989. Valdez v. State, 46 P.3d 703, 710 (Okla.

Crim. App. 2002) (―It is evident from the record before this Court that the Government of

Mexico would have intervened in the case, assisted with Petitioner's defense, and provided

resources to ensure that he received a fair trial and sentencing hearing‖).



III.   PRIOR PROCEEDINGS

       A.      Proceedings Prior to the Avena Judgment and President’s
               Determination.

       In July of 1995, Mr. Leal was convicted of capital murder and, upon the jury‘s

recommendation, the trial court sentenced Mr. Leal to death. On February 4, 1998, the Texas

Court of Criminal Appeals affirmed Mr. Leal‘s conviction and sentence in an unpublished

opinion. State v. Leal, No. 72,210 (Tex. Crim. App. 1998). Mr. Leal‘s state habeas petition was

denied on October 20, 1999 and, after seeking relief in federal habeas, this Court denied his

petition for a writ of habeas corpus on October 20, 2004. Leal v. Dretke, No. SA-99-CA-1301-

RF. On October 13, 2005, the Fifth circuit denied his request for a Certificate of Appealability.

Leal v. Dretke, 428 F.3d. 543 (5th Cir. 2005). On April 17, 2006, the Supreme Court denied

certiorari. Leal v. Dretke, 547 U.S. 1073 (No. 05-8680) (Apr. 17, 2006).

       B.      The Avena Case in the International Court of Justice.

       On January 9, 2003, while Mr. Leal‘s case was pending before the District Court, the

Government of Mexico initiated the Avena case in the I.C.J. against the United States, alleging

violations of the Vienna Convention in the case of Mr. Leal specifically, along with the cases of

53 other Mexican nationals who had been sentenced to death in state criminal proceedings in the

United States. Mexico sought relief both on its own behalf and, in the exercise of its right of

diplomatic protection, on behalf of its nationals, Avena, para. 12, specifically including Mr. Leal



                                                 8
by name, id. para. 16(38). The ICJ held a hearing during the week of December 15, 2003, and

issued a final judgment on March 31, 2004.           In the Avena judgment, the ICJ expressly

adjudicated Mr. Leal‘s own rights, as well as those of the other nationals on whose behalf

Mexico had sought relief. Id. paras. 40, 106.

       Specifically, the ICJ adjudged that Texas authorities violated Mr. Leal‘s Vienna

Convention rights. In particular, the ICJ held that the United States—acting through various

state and local officials—had breached its obligation under Article 36(1)(b) in the case of 51

Mexican nationals, including Mr. Leal, ―to inform detained Mexican nationals of their rights

under that paragraph.‖ In 49 of those cases, again including that of Mr. Leal, the ICJ also found

that the United States breached Article 36(1)(b) when officials failed ―to notify the Mexican

consular post of the[ir] detention.‖ Avena, paras. 106(1)-(2), 153(4)-(5). In the cases of Mr. Leal

and 48 other Mexican nationals, the ICJ further held that the United States had breached its

obligation under Article 36(1)(a) ―to enable Mexican consular officers to communicate with and

have access to their nationals, as well as its obligation under paragraph 1(c) of that Article

regarding the right of consular officers to visit their detained nationals.‖ Avena, paras. 106(3),

153(6). And, in the cases of Mr. Leal and 33 other Mexican nationals, the ICJ also held that the

United States had breached its obligation under Article 36(1)(c) ―to enable Mexican consular

officers to arrange for legal representation of their nationals.‖ Avena, paras. 106(4), 153(7).

       The ICJ then turned to remedies. It held that the United States must provide ―review and

reconsideration‖ of the convictions and sentences of Mr. Leal and the other Mexican nationals in

whose cases it found violations. Avena, paras. 14, 121-122, 153(9). The ICJ then specified the

nature of the review and reconsideration that the United States would need to provide to Mr.

Leal: first, the required review and reconsideration must take place ―within the overall judicial




                                                 9
proceedings relating to the individual defendant concerned;‖ second, procedural default doctrines

could not bar the required review and reconsideration when the competent authorities of the

detaining State had themselves failed in their obligation of notification; third, the review and

reconsideration must take account of the Article 36 violation on its own terms and not require

that it qualify also as a violation of some other procedural or constitutional right; and finally, the

forum in which the review and reconsideration occurs must be capable of ―examin[ing] the facts,

and in particular the prejudice and its causes, taking account of the violation of the rights set

forth in the Convention.‖ Avena, paras. 111-113, 120-122, 133-134, 138-141.

       C.      The Determination by the President of the United States to Comply
               with the Avena Judgment in the Case of Mr. Leal and the 50 Other
               Mexican Nationals

       On February 28, 2005, President George W. Bush issued a signed, written determination

that state courts must provide review and reconsideration to the 51 Mexican nationals named in

the Avena judgment, including Mr. Leal, pursuant to the criteria set forth by the ICJ in the Avena

judgment, notwithstanding any state procedural rules that might otherwise bar review of the

claim on the merits. The President declared:

       I have determined, pursuant to the authority vested in me as President by the
       Constitution and laws of the United States, that the United States will discharge
       its international obligations under the decision of the International Court of
       Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v.
       United States of America (Avena), 2004 I.C.J. 128 (Mar. 31), by having State
       courts give effect to the decision in accordance with general principles of comity
       in cases filed by the 51 Mexican nationals addressed in that decision.

See Exhibit 3 (Presidential Declaration).

       D.      The Texas Court of Criminal Appeals’ Dismissal of Mr. Leal’s
               Petition Filed Pursuant to the Presidential Determination

       Pursuant to the President‘s order, Mr. Leal filed a subsequent application in the Texas

state courts seeking enforcement of the rights he was denied. On November 15, 2006, in Ex



                                                 10
parte Medellin, the Texas Court of Criminal Appeals held that Texas Criminal Procedure Code

Article 11.071, § 5 barred consideration of a subsequent post-conviction application filed

pursuant to Avena and the President‘s determination. Ex parte Medellín, 2006 WL 3302639

(Tex. Crim. App. Nov. 15, 2006) (to be published in S.W.3d). On March 7, 2007, Mr. Leal‘s

application was dismissed by the Court of Criminal Appeals citing to its decision in Medellin. On

March 31, 2008, the Supreme Court denied certiorari. Leal Garcia v. Texas, 552 U.S. 1295 (No.

06-11711) (Mar. 31, 2008).

       E.      Prior Proceedings Before this Court (2007)

       Mr. Leal immediately filed a petition in this Court seeking relief based on the Avena

judgment and the presidential determination. On December 17, 2007 the Court determined that

Mr. Leal‘s petition was a successive petition pursuant to 28 U.S.C. § 2244 and, absent any

response or briefing from Respondent, the Court alternatively adjudicated the merits of Mr.

Leal‘s claim. Leal v. Quarterman, 2007 WL 4521519 (W.D. Tex. Dec. 17, 2007). This Court

granted a Certificate of Appealability, and Mr. Leal timely filed a notice of appeal.

       F.      The U.S. Supreme Court’s Decision in Medellin v. Texas (2008)

       On March 25, 2008, while Mr. Leal‘s case was pending before the Fifth Circuit, the

Supreme Court decided Medellin v. Texas, 552 U.S. 491 (2008). The Supreme Court held that

neither the Avena Judgment nor the President‘s determination to comply constituted directly

enforceable federal law that precluded Texas from applying the procedural bar set forth in Tex.

Code Crim. P. Art. 11.071, § 5. Id. at 503-32. The Supreme Court acknowledged that the

United States is obligated as a matter of international law to comply with the Avena Judgment,

noting that ―[n]o one disputes that the Avena decision—a decision that flows from the treaties

through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention




                                                11
disputes—constitutes an international law obligation on the part of the United States.‖ Id. at 504.

The Court was unanimous on this point. Id. at 504, 531, 538-39.

       The Supreme Court further clarified the means available to the United States under the

Constitution to come into compliance with its obligations under Avena, including legislation by

the U.S. Congress. Id. at 520. Justice Stevens, concurring in the judgment but not the opinion,

urged the State of Texas to effect statewide compliance with Avena, noting that ―the United

States‘ obligation to ‗undertak[e] to comply‘ with the ICJ‘s decision falls on each of the States as

well as the Federal Government.‖ Id. at 536 (Stevens, J., concurring). ―[T]he fact that the

President cannot legislate unilaterally does not absolve the United States from its promise to take

action necessary to comply with the ICJ‘s judgment.‖ Id.

       All nine justices of the Supreme Court also recognized that the United States has a vital

public interest in complying with its obligations under the Avena Judgment. Writing for the

majority, Chief Justice Roberts noted that

       [I]n this case, the President seeks to vindicate United States interests in ensuring
       the reciprocal observance of the Vienna Convention, protecting relations with
       foreign governments, and demonstrating commitment to the role of international
       law. These interests are plainly compelling.

Id. at 524. Justice Stevens agreed that ―the costs of refusing to respect the ICJ‘s judgment are

significant.‖ Id. at 537 (citation omitted). And Justice Breyer, joined by Justices Souter and

Ginsburg, observed in his dissenting opinion that noncompliance with the Avena Judgment

would exact a heavy toll on the United States by ―increase[ing] the likelihood of Security

Council Avena enforcement proceedings, [] worsening relations with our neighbor Mexico, []

precipitating actions by other nations putting at risk American citizens who have the misfortune

to be arrested while traveling abroad, or [] diminishing our Nation‘s reputation abroad as a result

of our failure to follow the ‗rule of law‘ principles that we preach.‖ Id. at 566.



                                                 12
        G.      Proceedings in the Fifth Circuit (2008)

        After the Supreme Court issued its decision in Medellin v. Texas, the Fifth Circuit

dismissed Mr. Leal‘s appeal from this Court‘s 2007 ruling. Leal v. Quarterman, 573 F. 3d at

214. The Court held that Mr. Leal‘s petition was not successive because it relied on the Avena

judgment and the 2005 determination of President Bush that the state courts would implement

the judgment. Id. at 224. The Court also vacated this Court‘s alternative prejudice analysis,

holding that the exercise of ―hypothetical jurisdiction‖ to engage in such an analysis was

inappropriate. Id. at 216 n.4, 225. Nevertheless, the Court dismissed Mr. Leal‘s petition with

prejudice on the basis of Medellin v. Texas, 552 U.S. at 491, concluding that the Supreme Court's

decision ―has deprived the Avena decision and the Bush declaration of whatever legal force Leal

might claim they ever had.‖ 573 F. 3d at 224. The Court made clear, however, that Mr. Leal

would be entitled to file another petition for writ of habeas corpus that would likewise be non-

successive, if Congress were to pass legislation requiring compliance with the Avena judgment.

Id. at 225 n. 54.

        H.      Proceedings Before the International Court of Justice (2008-09)

        On June 5, 2008, Mexico filed in the ICJ a Request for Interpretation of the Avena

Judgment, asking the ICJ to declare that the United States has an obligation to use any and all

means necessary to provide the judicial review and reconsideration mandated by the Judgment

before any execution is carried out.         See Application Instituting Proceedings, Request for

Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other

Mexican Nationals (Mex. v. U.S.), June 5, 2008.2                In conjunction with its Request for

Interpretation, Mexico also asked the ICJ to indicate provisional measures with respect to Mr.

2
 The parties‘ written and oral pleadings and the judgment, orders and press releases of the ICJ in respect
of the Request for Interpretation are available at http://www.icj-
cij.org/docket/index.php?p1=3&p2=1&code=&case=139&k=11.


                                                    13
Leal and four other Mexican nationals named in the Avena Judgment who face imminent

execution in Texas.3

        The ICJ held oral proceedings on the request for provisional measures on June 19 and 20,

2008. At oral argument, the Legal Adviser to the Secretary of State confirmed ―that the United

States takes its international law obligation to comply with the Avena Judgment seriously‖ and

agreed that Avena requires the provision of review and reconsideration prior to the imposition of

any death sentence. See Exhibit 4, ICJ Oral Argument Tr. (June 19, 2008), at 60; Exhibit 5, ICJ

Oral Argument Tr. (June 20, 2008), at 14-15.

        On January 19, 2009, the Court issued its judgment. Although it refrained from issuing a

reinterpretation of Avena, it held that the United States had violated its international legal

obligations by executing José Medellín on August 5, 2008. Request for Interpretation of the

Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mex.

v. U.S.), 2009 I.C.J. 139, ¶ 53. It declared that the United States‘ commitments under Avena

―must be met within a reasonable period of time,‖ and noted that the United States ―has insisted

that it fully accepts‖ this obligation. Id. ¶ 28. Meanwhile, the Court emphasized that ―the

obligation upon the United States not to execute . . . Humberto Leal García . . . pending review

and reconsideration being afforded to [him] is fully intact.‖ Id. ¶ 54.



        I.      Proceedings Before the Inter-American Commission on Human
                Rights

        On December 12, 2006, Mr. Leal filed a petition before the Inter-American Commission

on Human Rights raising the violation of his consular rights as well as several violations of the

1948 Declaration of the Rights and Duties of Man (―American Declaration‖). The Inter-

3
 The four other Mexican nationals subject to the Order have not received execution dates but are eligible
under state law to have dates scheduled.


                                                   14
American Commission is the principal human rights organ of the Organization of American

States (―OAS‖) and is empowered to consider and evaluate the merits of human rights violations

raised by individuals from any OAS member state. See Inter-American Commission on Human

Rights, What is the IACHR?, at http://www.cidh.oas.org/what.htm; see also Thomas

Buergenthal, International Human Rights in a Nutshell 174, 179, 181-82 (2d ed. 1995). As a

member of the OAS, the United States has recognized the Commission‘s competence to consider

such petitions.4

        On August 7, 2009, after reviewing the legal arguments of both parties and the facts

submitted in support of Mr. Leal‘s claims for relief, the Inter-American Commission on Human

Rights issued a report concluding, in pertinent part, that Mr. Leal was prejudiced by the violation

of his rights to consular notification and assistance. Specifically, the Commission found that it

was ―apparent from the record before the Commission that, following [Mr.] Leal Garcia‘s

conviction and sentencing, consular officials were instrumental in gathering significant evidence

concerning [his] character and background. This evidence, including information relating to

[his] family life as well as expert psychological reports, could have had a decisive impact upon

the jury‘s evaluation of aggravating and mitigating factors in [his] case. . . .‖ Exhibit 2,

Medellín. Ramírez Cárdenas and Leal García v. United States, Case 12.644, Inter-Am. Comm‘n

H.R., Report No. 90/09, OEA/Ser.L/V/II.135, doc. 37 ¶¶ 128, 131 (2009).

4
 The United States has signed and ratified the Charter of the Organization of American States, Apr. 30,
1948, 2 U.S.T. 2394, as well as the Protocol of Buenos Aires that amended the OAS Charter and
established the Commission as a principal organ through which the OAS would accomplish its purposes.
Protocol of Buenos Aires, Feb. 27, 1967, 21 U.S.T. 607, T.I.A.S. No. 6847. As ratified treaties of the
United States, both instruments apply with equal force and supremacy to all states, including Texas. U.S.
Const. art. VI, cl. 2. The amended OAS Charter specifically provided that ―[t]here shall be an Inter-
American Commission on Human Rights, whose principal function shall be to promote the observance
and protection of human rights and to serve as a consultative organ of the Organization in these matters.‖
Id. art. 106. Under Article 145, the Inter-American Commission is given the responsibility to ―keep
vigilance over the observance of human rights.‖ Id. art. 145.



                                                    15
        As to remedies, the Commission recommended that Mr. Leal‘s death sentence be vacated

and that he be afforded ―a new trial in accordance with the equality, due process and fair trial

protections, prescribed under . . . the American Declaration, including the right to competent

legal representation.‖ Id. ¶¶ 160(1), 169(1). The Commission also reiterated that the United

States is required to ―take the necessary measures to preserve‖ Mr. Leal‘s life and physical

integrity ―pending the implementation of the Commission‘s recommendations in the matter.‖ Id.

¶ 159. His execution under these circumstances, the Commission warned, would constitute a

failure by the United States ―to act in accordance with its fundamental human rights obligations

as a member of the Organization of American States.‖ Id. ¶ 168.

        J.        Legislative Efforts to Implement Avena (2008-11)

        Following the Supreme Court opinion, on July 14, 2008, Members of the House of

Representatives introduced legislation to give the Avena Judgment domestic legal effect. The

―Avena Case Implementation Act of 2008‖ would have granted foreign nationals such as Mr.

Leal a right to judicial review of their convictions and sentences in light of Vienna Convention

violations in their cases. Avena Case Implementation Act of 2008, H.R. 6481, 110th Cong. (2d

Sess. 2008). Introduced late in the congressional term during a presidential election year, the bill

failed to pass.

        On July 29, 2010, the Senate Appropriations Committee included legislative language to

implement the Avena judgment as part of the Department of State, Foreign Operations, and

Related Programs Appropriation Act for Fiscal Year 2011. The bill would have provided

Federal courts with jurisdiction to review the merits of Mr. Leal‘s Vienna Convention claim.

Upon a finding of actual prejudice from the violation of Mr. Leal‘s consular rights, the bill would

have required the court to fashion ―appropriate relief, including ordering a new trial or




                                                16
sentencing proceeding.‖ S. 3676, 111th Cong. (2d Sess. 2010).             In December 2010, the

appropriations bill failed to pass.

       On June 14, 2011, Senator Patrick Leahy introduced the ―Consular Notification

Compliance Act,‖ which would grant Mr. Leal a right to the judicial process required by Avena.

The new legislation has the full support of the U.S. Departments of Justice and State—a fact that

distinguishes this legislation from previous congressional efforts and greatly enhances the

chances of passage. Ex. 6, Affidavit of Katharine Huffman. The proposed bill specifically

authorizes federal courts

    to review the merits of a petition claiming a violation of Article 36(1)(b) or (c) of the
    Vienna Convention on Consular Relations, or a comparable provision of a bilateral
    agreement addressing consular notification and access, filed by a person convicted and
    sentenced to death by any federal or state court prior to the date of enactment of this
    Act.

Ex. 1. Consular Notification Compliance Act, § 4 (a)(1). Significantly, the legislation provides

that a petition raising a violation of Article 36 shall not ―be considered a second or successive

habeas corpus application or subjected to any bars to relief based on pre-enactment

proceedings other than as specified in paragraph (2) of this subsection.‖ Id. § 4(a)(4).

       The legislation has drawn broad support from a bipartisan array of former diplomats,

business leaders, retired military leaders, and organizations representing the millions of

Americans who live, work and travel abroad.

       In a letter to Secretary of State Hillary Rodham Clinton urging Congress to pass

legislation implementing Avena, Peter M. Robinson, President and CEO of the United States

Council for International Business observed that

       The security of Americans doing business abroad is clearly and directly at risk by
       U.S. noncompliance with its obligations under the Vienna Convention. As recent
       history has shown, American citizens abroad are at times detained by oppressive
       or undemocratic regimes, and access to the American consular officers may be



                                                17
       their lifeline. Overseas employees of the U.S. business community as well as all
       other Americans traveling or living abroad need this vital safety net. As it stands
       now, U.S. citizens abroad are at grave risk that other countries may not honor
       their reciprocal obligation.

Exhibit 7, Letter to The Honorable Hillary Rodham Clinton, Secretary of State, from Peter M.

Robinson (Nov. 16, 2009). A group of retired military leaders has appealed to the Texas Board

of Pardons to stay Mr. Leal‘s execution, noting, ―As retired military leaders, we understand that

the preservation of consular access protections is especially important for U.S. military

personnel, who when serving our country overseas are at greater risk of being arrested by a

foreign government.‖ Ex. 8, Letter from Retired Military Leaders. A bipartisan group of former

diplomats has echoed the need for legislation, citing the risk to Americans abroad:

    Clearly, the safety and well-being of Americans abroad is endangered by the United
    States maintaining the double standard of protesting denials of consular notification and
    access to its own citizens while simultaneously failing to comply with its obligation to
    remedy identical violations. We cannot realistically expect other nations to continue to
    comply with consular treaty commitments that we refuse to uphold.

Ex. 9, Letter from Former Diplomats. An additional letter of support from former prosecutors

and judges observes that ―[d]elaying the execution of Humberto Leal García to ensure full

opportunity for congressional action and appropriate review of the case will demonstrate to

foreign governments the United States‘ good faith in upholding its consular access obligations,

increasing the likelihood that foreign governments will grant access to Americans in their

custody.‖ Ex. 10, Letter from Former Judges and Prosecutors.

       Americans who have a direct stake in compliance with the Vienna Convention have also

called for a stay of Mr. Leal‘s execution and for the passage of legislation. Billy Hayes, whose

terrifying experience in a Turkish prison gave rise to the book and film, ―Midnight Express,‖ has

stated that U.S. consular assistance was critical to his ability to obtain legal counsel. In a letter to

the Texas Board of Pardons and Paroles, he highlights the vulnerability of Americans detained



                                                  18
overseas, and asks the Board to grant a reprieve so that Congress can address ―this vitally

important concern.‖ Ex. 11, Letter from Billy Hayes. Euna Lee, a journalist who was detained

in North Korea, describes the ―unbearable‖ ―sense of darkness‖ she experienced while in North

Korean custody. Ex. 12, Letter from Euna Lee. She states that it is ―hard to describe in words‖

the significance of her first consular visit. Id. ―For every endangered American hidden in a

foreign prison—and for their fearful families back at home—there can be no more important

priority than upholding the reciprocal right to consular protection.‖ Id. Finally, a coalition of

organizations that represent the concerns of the countless American citizens who live overseas

has joined in the call to stop Mr. Leal‘s execution, noting that ―[i]nternational compliance with

these provisions is essential to the protection of the United States‘ vast overseas population:

thousands of our fellow-citizens are held in foreign custody each year, while many thousands

more rely on access to U.S. consular support after natural disasters, civil unrest or other

emergencies.‖ Ex. 13, Letter from Organizations Representing Americans Abroad.

          K.     Further Political and Diplomatic Efforts to Effect Compliance with
                 the Avena Judgment

          The Executive Branch has repeatedly reaffirmed its commitment to enforcing the Avena

judgment. Both Republican and Democratic administrations have emphasized the importance of

complying with this obligation. On June 17, 2008, Secretary of State Condoleezza Rice and

Attorney General Michael B. Mukasey asked for Texas‘ help in complying with the Avena

Judgment. In a joint letter to Governor Rick Perry, the Secretary of State and Attorney General

stated:

          The United States attaches great importance to complying with its obligations
          under international law . . . . We continue to seek a practical and timely way to
          carry out our nation‘s international legal obligation [under Avena], a goal that the
          United States needs the assistance of Texas to achieve. In this connection, we
          respectfully request that Texas take the steps necessary to give effect to the Avena
          decision with respect to the convictions and sentences addressed therein.


                                                  19
Ex. 14, Letter from Condoleezza Rice, Secretary of State, and Michael B. Mukasey, Attorney

General, to Rick Perry, Governor of Texas (June 17, 2008).              For its part, the Obama

Administration has assured the international community of its intent to comply with Avena

judgment. HUMAN RIGHTS COUNCIL, Draft Report of the Working Group on the Universal

Periodic Review: United States of America, U.N. Doc. A/HRC/WB.6/9/L.9, ¶ 55 (Nov. 10,

2010). On July 12, 2010, State Department Legal Adviser Harold H. Koh wrote to Bexar County

district court judge Maria Herr to ask that she refrain from scheduling Mr. Leal‘s execution. He

noted that the Executive Branch was engaged in consultations with Congress and with the

Government of Mexico ―to determine how best to ensure the United States complies with its

obligations under Avena,‖ and that passage of legislation would take time. Mr. Koh concluded:

      This case is. . . an important issue affecting U.S. foreign relations. Mexico and
      numerous other foreign governments have urged the United States to comply with this
      international obligation. Most important, millions of American citizens who travel
      abroad annually rely on the protections of the Vienna Convention for access to U.S.
      consular officials. We must ensure that neither this case nor any other weakens their
      ability to rely on that access.

Ex. 15, Letter from Harold Hongju Koh to the Honorable Maria Herr, July 12, 2010. Since July

2010, the Executive Branch has been actively engaged in consultations with leading Members of

Congress over legislative language and strategies to assure passage of a bill that fully implements

the United States‘ obligations under Avena.



IV.     STANDARD OF REVIEW

        Since this claim is filed pursuant to federal legislation passed on June 14, 2011, the Texas

courts have not yet had an opportunity to consider the claim presented here. Mr. Leal is

therefore requesting that this Court stay and abate these proceedings out of comity to the state




                                                20
courts so that they may consider the state and federal constitutional grounds for granting habeas

relief and a stay of execution.

        Whatever the eventual ruling of the Texas Court of Criminal Appeals, however, this

Court will not be obligated to defer to the state court‘s decision, and may review the matter de

novo. See 28 U.S.C. § 2254(d). In addition, this Court will have the power to enter a stay of

execution regardless of the Texas court‘s decision, since the Court retains the inherent power to

issue orders necessary to preserve its jurisdiction over Mr. Leal‘s petition in light of the pending

federal legislation.



V.      GROUNDS FOR RELIEF.

        A.      The Supreme Court and Executive Branch Agree that Mr. Leal Has
                the Right to Review and Reconsideration of His Conviction and
                Sentence Under the Avena Judgment.

        There is consensus among all relevant actors that Mr. Leal is entitled to review and

reconsideration of his conviction and sentence consistent with the Avena Judgment. No one—

not the Supreme Court, not the United States, not Mexico, not Texas—disputes that there is a

binding international obligation to comply under a treaty that the United States willingly entered

into and that was duly ratified by the President and the Senate. See, e.g., Medellin v. Texas, 552

U.S. at 504. No one disputes that by virtue of the Supremacy Clause of the Constitution, the

treaties made ―under the Authority of the United States, shall be the supreme Law of the Land.‖

U.S. Const. art. VI, cl. 2. The Supreme Court clarified that the Constitution required further

action by the federal political branches to render the Avena decision enforceable in domestic

courts, including in Mr. Leal‘s case. Medellín, 552 U.S. at 521 (―Congress is up to the task of

implementing non-self-executing treaties.‖); see also id. at 526-27, 529-30 (noting action by

Congress and/or by the President); id. at 536 (Stevens, J., concurring in judgment) (―[T]he fact


                                                21
that the President cannot legislate unilaterally does not absolve the United States from its

promise to take action necessary to comply with the ICJ‘s judgment.‖).

       B.     Congress Has Moved Steadily Toward Passage of Legislation That
              Would Implement Mr. Leal’s Right to a Judicial Hearing.

       For the past three years, Congress has been moving steadily toward the passage of

legislation to implement the Avena judgment. Significantly, two experts on congressional

procedure believe there is a substantial likelihood that the Consular Notification Act will pass

before the end of 2011. See Ex. 6 (Affidavit of Katharine Huffman); Ex. 16 (Affidavit of Prof.

Ross Baker). As Professor Ross Baker explains, the time that Congress has taken to introduce

legislative language should not be considered as an indication of Congress‘ disinterest in

implementing Avena; the process by which bills are introduced, considered and presented for a

vote is cumbersome and complex. Ex. 16 (Affidavit of Prof. Ross Baker). In addition, the

introduction of legislation to implement the Avena judgment has required extensive consultation

with both the Department of State and the Department of Justice, and has involved difficult

questions of federalism, habeas corpus procedure, and international law. Nonetheless, Members

of Congress and the Executive Branch have worked diligently to promote Avena legislation.

Significantly, the introduction of the Consular Notification Compliance Act marks the first time

that the legislation has been introduced with the full support of all relevant departments of the

Executive Branch. With the Administration‘s vigorous support, experts believe that there is a

substantial likelihood that the Consular Notification Compliance Act will be passed by

December 2011. See Ex. 6 at ¶ 10; Ex. 16 at ¶ 16. There is no time, however, for committee

hearings, deliberations and floor debates in both the House and Senate before Mr. Leal‘s

scheduled execution on July 7, 2011.




                                               22
         Texas has itself on several occasions advocated the importance of allowing the political

branches to determine whether and how to give effect to the Nation‘s obligations under the

Avena Judgment. It emphasized, in particular, implementing legislation. For example, in its

brief to the Supreme Court in Medellin v. Dretke, Texas argued:

        It is beyond cavil that . . . America should keep her word. But the choice of how
        to do so, and how to respond to alleged treaty violations, is left to the political
        branches of government . . . . The President and Congress could seek to pass
        legislation addressing the Avena decision[.]

Respondent‘s Br. at 7, Medellin v. Dretke, 544 U.S. 660 (No. 04-5928). And in Medellin v.

Texas, Texas echoed: ―To be sure, Texas recognizes the existence of an international obligation

to comply with the United States‘ treaty commitments, including, as appropriate, through

changes to domestic law.‖ Br. for Respondent at 12, Medellin v. Texas, 552 U.S. 491 (No. 06-

984).

        Nearly half the states espoused this position in amicus briefs submitted to the Supreme

Court in Medellin v. Texas, 522 U.S. 491. Twenty states argued in the Supreme Court that

        As a delicate matter of foreign policy, [the] task [of choosing how to comply with
        Avena] should be left to the Executive Branch and Congress, at least in the first
        instance . . . . The political branches can work toward a solution that protects and
        balances the United States‘ sovereignty interests, the States‘ interests in finality
        and the efficient administration of criminal justice, and foreign nationals‘ interests
        in consular notification in an equitable fashion—all the while bearing in mind the
        important ramifications such a solution would have for United States citizens
        living and traveling abroad.

Br. for the States of Alabama et al., as Amici Curiae, in Support of Respondent at 17-18,

Medellin v. Dretke, (No. 04-5928).

        Texas‘ decision to proceed with Mr. Leal‘s execution and preempt the legislative process

places Congress, the President, and indeed the Nation as a whole in an impossible race against

time. The execution of Mr. Leal would interfere with the institutional prerogative of Congress,




                                                 23
working in concert with the Executive, to implement the Nation‘s freely-undertaken treaty

commitments.

       C.      Mr. Leal Has Rights to Life and Due Process Under the United States
               Constitution That Entitle Him to Reasonable Access to a Remedy
               Required Under a Binding International Legal Obligation.

       Mr. Leal is on the verge of execution without having received review and reconsideration

when every federal and state actor agrees that there is a binding international legal obligation to

provide him that review. Indeed, the Executive has been working diligently to effect compliance

through all the means available to prevent this Nation‘s breach of one of its most important treaty

commitments. And although the Consular Notification Compliance Act has been introduced,

there simply is insufficient time to consider and pass the legislation before July 7. Despite the

unanimity of views that the United States should comply and that Mr. Leal has a binding legal

right to a remedy, Texas is rushing to execute Mr. Leal before Congress has the opportunity to

exercise the very competence that Texas argued and the Supreme Court has clarified it has, to

transform that legal obligation into a justiciable federal right.

       In these unique circumstances, Mr. Leal‘s execution would violate his right under federal

law in the form of the United States‘ treaty commitments to receive review and reconsideration

in accord with the Avena judgment. Those treaty commitments, in turn, are the ―supreme Law of

the Land‖ by operation of the Supremacy Clause. U.S. Const. art. VI, cl. 2. Though the right to

receive review and reconsideration is not yet enforceable in domestic courts, the process to make

it so is now underway in Congress, and Mr. Leal has a right to remain alive in order to seek

vindication of that right once implemented as a matter of domestic law. To deprive him of that

right would impinge on the constitutional authority of Congress, as confirmed by the Supreme

Court, to give effect to the United States‘ obligation under Article 94(1) of the United Nations

Charter to comply with the Avena judgment. And vindication of that right would be no empty


                                                  24
gesture: for the reasons set forth infra in Part D (2) – (3), the undisputed violation of his Vienna

Convention rights in Mr. Leal‘s case goes to the very heart of the validity of his conviction and

sentence.

       Further, in these unique circumstances, Mr. Leal‘s execution would violate his right to

life and his right not to be deprived of his life without due process of law guaranteed under the

U.S. Constitution. See U.S. Const. amend. V, XIV; Ohio Adult Parole Authority v. Woodard,

523 U.S. 272, 288 (1998) (―[a] prisoner under death sentence remains a living person and

consequently has an interest in his life‖) (O‘Connor, J., concurring); id. at 291 (―There is . . .no

room for legitimate debate about whether a living person has a constitutionally protected interest

in life. He obviously does.‖) (Stevens, J., concurring in part and dissenting in part). Mr. Leal‘s

current sentence of death does not deprive him of that right, because neither the sentence nor the

conviction underlying it can be considered valid unless and until he receives the review and

reconsideration mandated by the United States‘ treaty commitments. ―[A]s [the Supreme Court

has] often stated, there is a significant constitutional difference between the death penalty and

lesser punishments.‖ Beck v. Alabama, 447 U.S. 625, 638 (1980); see also Gardner v. Florida,

430 U.S. 349, 357 (1977) (―[D]eath is a different kind of punishment from any other which may

be imposed in this country.‖) (opinion of Stevens, J.). It is thus ―of vital importance to the

defendant and to the community that any decision to impose the death sentence be, and appear to

be, based on reason rather than caprice or emotion.‖ Gardner, 430 U.S. at 358; see also Barefoot

v. Estelle, 463 U.S. 880, 888 (1983) (―[A] death sentence cannot begin to be carried out by the

State while substantial legal issues remain outstanding.‖).

       Here, the State of Texas is poised to carry out Mr. Leal‘s execution before he receives the

full process to which he is entitled under law. That entitlement is no less weighty simply




                                                25
because appropriate federal actor has not yet had an opportunity to implement the undoubted

international obligation that confers it. Texas authorities cannot be permitted to subvert due

process by an unseemly rush to execution before the U.S. Congress has had a chance to act, and

any doubt that Congress will adopt the necessary legislation to avoid a breach of the relevant

treaties must be resolved in favor of the presumption that the United States will act to comply

with its treaty commitments. Cf. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64,

118 (1804) (in the absence of clear instruction from Congress, courts should not construe statutes

in a manner that would place the United States in breach of its treaty obligations); see Br. for the

United States as Amicus Curiae Supporting Respondent at 43, 45, Medellin v. Dretke, 544 U.S.

660 (2005) (No.04-5928) (President has determined it is in the ―paramount interest of the United

States‖ to achieve ―prompt compliance with the ICJ‘s decision with respect to the 51 named

individuals‖). At the very least, due process requires that Mr. Leal be allowed to live while

Congress considers implementation of the international obligation.

       D.      Mr. Leal Would Benefit from the Consular Notification Compliance
               Act Because He Has Not Received the Review and Reconsideration
               Mandated by the Avena Judgment, and Because the Violation of
               Article 36 in His Case Resulted in Actual Prejudice.

                1. Mr. Leal Has Not Received Review and Reconsideration as
                   Required by Avena.

       No U.S. court has yet provided review and reconsideration of Mr. Leal‘s consular rights

claim in accordance with the criteria set forth by the ICJ in Avena. Every court that has reviewed

the VCCR violation in Mr. Leal‘s case has found the issue to be procedurally defaulted.

Although some of those courts concluded, in the alternative, that Mr. Leal had not been

prejudiced by the violation, this sort of ―alternative‖ prejudice finding does not constitute

sufficient review and reconsideration. Indeed, this is precisely the sort of review that the state

and federal courts provided in the case of José Medellín, another Mexican national whose case


                                                26
was adjudicated by the ICJ in Avena, and who was executed by the state of Texas in 2008. In

assessing whether the United States had complied with its obligations to provide review and

reconsideration in Medellín‘s case, the ICJ concluded that it had not—despite Texas‘ strenuous

arguments that such ―alternative‖ merits assessments were sufficient ―review and

reconsideration‖ under Avena. 2009 I.C.J. 139 at ¶ 53. The ICJ concluded that the United States

had violated its international legal obligations by executing Medellín without providing him the

requisite review and reconsideration. Id.

       According to the Avena Judgment, the review and reconsideration of Mr. Leal‘s

conviction and sentence must be ―effective‖ and ―‗tak[e] account of the violation of the rights set

forth in [the] Convention‘ and guarantee that the violation and the possible prejudice caused by

that violation will be fully examined . . . .‖ Avena Judgment at ¶ 138 (emphasis added; citation

omitted).   The Court also held that the violation of Mr. Leal‘s Article 36 rights must be

addressed on its own terms, not under the rubric of other due process rights afforded in the

United States criminal justice system. Id. at ¶ 139. As the Court explained, ―[t]he rights

guaranteed under the Vienna Convention are treaty rights which the United States has

undertaken to comply with in relation to the individual concerned, irrespective of the due process

rights under United States constitutional law.‖ Id. Further, consistent with the Avena Judgment

and proposed legislation, the review and reconsideration must be provided free of any procedural

impediments, including the procedural bars set forth in 28 U.S.C. § 2244.

       In his initial post-conviction application before the Texas post-conviction court, Mr. Leal

raised the violation of his Vienna Convention rights but at the time, the Avena Judgment had not

yet issued. Accordingly, that court‘s analysis failed to apply the specific criteria set forth by the

Avena court. First, the state court found that the claim was procedurally defaulted. Ex Parte




                                                 27
Leal, No. 94-CR-4696-WI (186th Dist. Tex., Oct. 20, 1999), at 69. Second, the court rejected

the claim based on the lack of any parallel state or federal constitutional rights – a framework

specifically rejected by the ICJ in Avena.5 See Avena Judgment at ¶ 139.

        In a habeas petition filed with this Court in 2007, Mr. Leal again raised the violation of

his Article 36 rights. This Court, however, determined that Mr. Leal‘s claims were subject to a

procedural bar – namely, the successive petition requirements as set forth in 28 U.S.C. § 2244 –

and dismissed the petition without receiving a response from the Attorney General and in the

absence of discovery, factual development and an evidentiary hearing. The Court‘s assessment

of the facts of Mr. Leal‘s case, unsurprisingly, is riddled with misstatements and fails to consider

critical evidence. More important, on appeal the Fifth Circuit vacated the part of this Court‘s

opinion that concluded that Mr. Leal had not been prejudiced. Leal Garcia v. Quarterman, 573

F. 3d 214, 225 (5th Cir. 2009). The Fifth Circuit held that the district court‘s ―hypothetical‖

analysis was improper, and on that basis vacated the court‘s ―alternative‖ prejudice

determination. Id. at 216, n 4.

         Even if the Fifth Circuit had not vacated this Court‘s ―alternative‖ prejudice

determination, it would not have sufficed as ―review and reconsideration under the Avena

Judgment. First, any ―alternative‖ finding that a national was prejudiced by the VCCR violation

would be wholly unenforceable. Second, the Court‘s ―alternative‖ prejudice determination was

made on the basis of pleadings, without providing for any of the fact-finding procedures that are

necessary to create a complete and accurate record for the purposes of review and

reconsideration. Third, an ―alternative‖ evaluation of prejudice conducted after a court has


5
  The state court noted that that there was no ―federal or state constitutional requirement that the rights
listed in Article 36 of the Vienna Convention must be given to a foreign national by police prior to
questioning or taking a statement from the foreign national, whether the foreign national is in custody or
is not in custody.‖ Ex Parte Leal, No. 94-CR-4696-WI, at 63.


                                                     28
already determined that a claim is procedurally barred pre-disposes the court to conclude there is

no prejudice. Where a court finds a claim to be procedurally barred, there is no institutional

incentive to ferret out the truth and to fully examine, in the ICJ‘s words, whether actual prejudice

has been shown.

       In sum, there is no difference between the ―review‖ provided in Leal and the inadequate

―review‖ provided in Medellín. In both cases, courts found the Avena claims to be defaulted,

and then conducted an alternative prejudice analysis. In Leal, as in Medellin, the state court

applied the wrong analytical framework. This Court cited Avena but applied a procedural bar

and failed to allow for any process by which the parties could present evidence, make oral

arguments, and engage in discovery.

                2. The Vienna Convention in Mr. Leal’s Case Resulted in Actual
                   and Substantial Prejudice.

       Although the ICJ did not elaborate on the meaning of ―actual prejudice,‖ the Supreme

Court has suggested that a petition must show that the violation had ―some effect‖ on the fairness

of the trial. Breard v. Greene, 523 U.S. 371, 377 (1998). Lower courts considering Vienna

Convention claims have used a three prong test for determining if a prisoner has demonstrated

prejudice: ―(1) the defendant did not know he had a right to contact his consulate for assistance;

(2) he would have availed himself of the right had he known of it; and (3) it was likely that the

consulate would have assisted the defendant.‖ Torres v. State, 120 P.3d 1184, 1186 (Okla. Crim.

App. 2005); see also United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir. 1980)

(assessing whether Vienna Convention violation ―harmed [petitioner‘s] interests in such a way as

to affect potentially‖ his conviction or sentence). But even under a more stringent test, Mr. Leal

easily carries his burden. For example, the factual showing made by Mr. Leal readily meets the

prejudice standard applied in Kyles v. Whitley, 514 U.S. 419 (1972) (where there is a ―reasonable



                                                29
probability‖ that the result of the proceeding would have been different, prosecutor‘s

withholding of exculpatory evidence is material and requires a new trial).,

       The current petition elaborates on the prejudice arguments presented in the previous

petition and provides further information regarding mitigating evidence that was not presented

by counsel and that would have compelled at least one juror to vote for life. Based on the

uncontested evidence of Mexico‘s aggressive and far-reaching consular assistance program, the

sworn statements of a Mexican official that the consulate would have provided high quality and

experienced legal counsel to Mr. Leal, the abysmal performance of Mr. Leal‘s appointed

counsel, and the powerful evidence that competent counsel would have been able to effectively

undermine the prosecution‘s case at both the culpability and penalty phases of trial, there can be

little doubt that Mr. Leal easily meets any formulation of the prejudice requirement.

                       a.      Mr. Leal Did Not Know He Had a Right to Contact His
                               Consulate for Assistance.

       Mr. Leal did not know, nor did anyone attempt to inform him of, his right to consular

assistance. Throughout all previous forums, in the domestic courts and in the International Court

of Justice, the State has never contested the fact that Mr. Leal was not informed of his rights

under the Vienna Convention, nor have they suggested that he had independent knowledge of his

rights. There can be no credible debate that Mr. Leal has satisfied this first element of the test.

                       b.      Mr. Leal Would Have Contacted the Mexican
                               Consulate Had He Been Apprised of His Rights.


       Had Mr. Leal been properly informed of his right to consular notification upon arrest —

or at any time during his pre-trial detention—he would have sought out the consulate‘s help.

Indeed, it was Mr. Leal himself who first contacted the consulate by letter while on death row.

See Ex. 17, Affidavit of Victor Manuel Uribe.



                                                 30
       There was no reason why Mr. Leal would have hesitated to apprise the Mexican

consulate of his situation; quite the reverse, in fact. He had no criminal record in Mexico to

conceal, and was not wanted there by the authorities on any charges. His ties to Mexico and his

native culture were deep and enduring. Furthermore, he has gratefully accepted the consular

assistance offered to him in his post-conviction proceedings; indeed, it was Mr. Leal himself who

contacted the consulate to seek the assistance to which he was entitled from the time of his arrest.

This is evidence of his willingness to work with the consulate and is entirely consistent with the

experience of Mexican consular officers in cases involving serious criminal charges. See id.

                       c.     Mexico Would Have Provided Substantial Assistance to
                              Mr. Leal.

       There is no question that Mexico would have provided substantial assistance to Mr. Leal

throughout 1994, when he was detained on capital murder charges, had the consulate been aware

of his case. Since at least 1920, the Mexican government has extended legal assistance to its

nationals sentenced to death in the United States. See Ex. 18 Affidavit of Everard Kidder Meade

IV, ¶ 7. As early as 1921, upon the motion of Nobel laureate Octavio Paz, who was then a

congressman in Mexico, Mexico appropriated special funding for criminal defense attorneys to

represent Mexican nationals in United States courts. Id. at ¶ 10.

       At least one court has already recognized the ―significance and importance‖ of the

assistance provided by Mexican consular officials. Valdez v. State, 46 P.3d 703, 710 (Okla.

Crim. App. 2002). In the case of Mr. Valdez, who was arrested in 1989, the Oklahoma Court of

Criminal Appeals found that ―the Government of Mexico would have intervened in the case,

assisted with Petitioner‘s defense, and provided resources to ensure that he received a fair trial

and sentencing hearing.‖ Id. (emphasis added). Mr. Leal was arrested some five years after Mr.

Valdez. From 1989 to 1994, Mexico‘s involvement in the defense of its nationals only increased



                                                31
in intensity. Shortly before Mr. Leal‘s prosecution, for example, consular officials in Texas were

heavily involved in the defense of Ricardo Aldape Guerra, who was convicted and sentenced to

death in Houston without the benefit of consular assistance. See Affidavit of Scott J. Atlas,

attached as Appendix 3 to Ex. 17, Affidavit of Victor Manuel Uribe. In the case of Mr. Aldape,

the consulate‘s assistance quite literally made the difference between life and death, just as it

would have in the case of Mr. Leal. Id.; see also Declaration of Michael Iaria, attached as

Appendix 3 to Ex. 17, Affidavit of Victor Manuel Uribe (describing assistance provided by

Mexican government to national facing capital charges in Oregon which resulted, among other

things, in the withdrawal of incompetent counsel and the appointment of a qualified capital

defense attorney); Affidavit of Bonnie Goldstein, attached as Appendix 3 to Ex. 17, Affidavit of

Victor Manuel Uribe (describing assistance provided by Mexico during the 1992-1997 period to

nationals on Texas‘ death row in habeas proceedings); Ex. 19, Affidavit of Peter Lopez, III

(describing assistance provided by Mexico, including obtaining documents in Mexico

unavailable to defense counsel under Texas law). As early as 1988, the Mexican Ministry of

Foreign Relations had designated a specific point-person charged specifically with monitoring

legal cases of Mexican citizens in the United States. See Ex. 20, Affidavit of Barbara K.

Strickland. The Ministry was particularly interested in the cases of Mexican nationals facing the

death penalty. Id. This emphasis persisted throughout the 1990s. Id.; see also Declaration of

Roberto Rodriguez Hernandez, attached as Appendix 1 to Ex. 17, Affidavit of Victor Manuel

Uribe.   The fact that the Mexican government took an active interest in Mr. Leal‘s case

immediately upon learning of it, and promptly sought to take a vigorous role in his defense from

that time forward belies any argument that the consulate would have ignored any pleas for

assistance from Mr. Leal or his attorneys.




                                               32
               3. Mr. Leal Easily Meets An Even Stricter Prejudice Standard.

       There can be no question that Mexico‘s involvement in Mr. Leal‘s case would have

transformed the quality of his defense, and, at minimum, prevented the imposition of a death

sentence by ensuring that Mr. Leal was defended by highly qualified and experienced trial

counsel aided by competent investigators and necessary forensic and mental health experts. Ex.

17, Affidavit of Víctor Manuel Uribe. Just as Mexico has done in other capital cases involving

Mexican nationals, consular officials would have taken measures to ensure Mr. Leal was

represented by competent counsel, and taken decisive steps to have trial counsel removed if they

failed to mount a vigorous defense for Mr. Leal.       Mexican consular protection officers are

specially trained to understand and respond to the various stages of a capital case, and closely

monitor the performance of trial counsel to ensure they provide high quality legal representation.

Much of this assistance is comparable to that provided by effective capital defense attorneys

since the early 1980s. see also 2003 ABA Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases, 31 Hofstra L.R. 913, 1015-27, available at

http://www.abanet.org/deathpenalty/resources/docs/2003guidelines.pdf.

       Such consular assistance would have made a critical difference at both the guilt and

penalty phases of Mr. Leal‘s capital murder trial. Since finally learning of his plight, Mexico

has, among other things, retained counsel to represent Mr. Leal, provided funding for forensic

experts, including a DNA and bite mark expert, and has retained experts in the fields of sexual

abuse of children and neuropsychology. It has also funded a mitigation investigation by a

bilingual mitigation specialist that led to discovery of school records demonstrating Mr. Leal‘s

learning disabilities, which alerted counsel to the need for a neuropsychological evaluation.

Through her interviews with Mr. Leal‘s Spanish-speaking parents and multiple other Spanish-




                                               33
speaking witnesses, the mitigation specialist uncovered evidence of the domestic violence that

scarred Mr. Leal‘s childhood and his horrific sexual abuse by a parish priest. All of this

evidence could have been uncovered at the time of trial with consular assistance.

       Without the comprehensive aid and resources provided by the consulate, Mr. Leal was

represented by two court appointed attorneys who were inexperienced, under-funded, and inept.

One of his appointed lawyers, Jose M. Guerrero, has twice been suspended from the practice of

law and was publicly reprimanded on two other occasions for failing to carry out his obligations

to clients. Review of Mr. Leal‘s trial transcript reveals an appalling lack of trial preparation. The

appointed lawyers failed to retain an independent DNA expert, failed to introduce evidence

demonstrating that the prosecution‘s ―bite mark evidence‖ was junk science, failed to cross-

examine the prosecution‘s witness who testified that ―luminol‖ testing revealed the presence of

human blood in Mr. Leal‘s car, failed to retain any independent mental health experts, conducted

only the most cursory investigation, and presented a feeble penalty-phase defense that rested

primarily on his parents‘ pleas to save their son‘s life, and Mr. Leal‘s own unhelpful testimony.



                       a.      Consular Assistance Would Have Transformed the
                               Quality of Mr. Leal’s Defense at the Culpability Phase

        Mr. Leal was accused of the sexual assault, kidnapping and murder of Adria Sauceda..

Because Mr. Leal informed the police that he may have accidentally caused Ms. Sauceda‘s

death, and because he was the last person seen with her before her body was discovered, the

argument that Mr. Leal was responsible for Ms. Sauceda‘s death was at least plausible. But the

state‘s case for capital murder, or even anything greater than manslaughter, —required proof that

Mr. Leal either kidnapped or sexually assaulted Ms. Sauceda. For this, the State built its case on

on junk science, willful ignorance, and profoundly problematic DNA evidence.



                                                 34
           Mr. Leal consistently and repeatedly denied that he had kidnapped or sexually assaulted

Ms. Sauceda. Tr. 14:353-54; see also Tr. 14:318-19. The ―evidence‖ supporting the kidnapping

charge was virtually nonexistent. Indeed, the court hesitated even to charge the jury on that

element.6 Tr. 16:771. As for the sexual assault, the state had no conclusive forensic evidence

proving that Mr. Leal had ―intentionally or knowingly cause[d] the penetration, by any means, of

the anus or female sexual organ‖7 of Ms. Sauceda. Although sperm cells were found on rectal

swabs and smears taken from the victim,8 they were not matched to Mr. Leal. The victim was

discovered with a stick protruding from her vagina, but Mr. Leal‘s fingerprints were not present

on the stick. P.C. Tr. 3:131-32. The absence of any direct evidence linking Mr. Leal to the

sexual assault was even more problematic for the state in light of the testimony of its own

witnesses, who stated that numerous men had sexually assaulted the victim on the night of her

death.9 Tr. 13:29. Two of those men were later seen with the victim‘s purse within a few

hundred yards of where her body was found. Tr. 13:42-44; 46-47; 62; 121.

           Because the prosecution‘s lay witnesses could not link Mr. Leal to conduct that would

have made him eligible for the death penalty, the state relied principally on forensic ―experts‖

and police officers to try to find a basis for an argument that he had sexually assaulted or

6
  Ultimately, the jury returned a general verdict of capital murder without specifying which underlying
offense was established beyond a reasonable doubt. Tr. 16:836.
7
    This definition is taken from the trial court‘s instructions to the jury. See Tr. 16:780.
8
  Lonnie Ginsberg, chief forensic serologist with Bexar County Forensics Science Center, testified that
sperm cells were found on both the rectal swabs and smears. Tr. 15:462. Inexplicably, only the swabs,
not the smears, were sent to the Austin crime lab for further tests. Id. at 486. Donna Stanley, a serologist
at Texas Department of Public Safety testified that she could not find any sperm on the swabs. Id. at 568-
69.
9
  None of those men – identified by the state‘s witnesses – were ever prosecuted for sexual assault.
Likewise, neither the swabs nor the smears were tested to obtain the easily available proof of who was
involved.




                                                        35
kidnapped the victim. Yet the defense failed to retain independent experts who would have

exposed the fallacies in the state‘s expert testimony. With consular assistance, however, they

would have been provided funding for such experts. See Exhibits 17; 19 (Declaration of Peter

Lopez, III).   Those resources would have provided the means to effectively challenge the

purported ―bloodstains,‖ DNA and bite mark evidence on which the prosecution‘s case

depended.

                          i.   The Testimony of the Lay Witnesses Did Not and Could
                               Not Establish That Mr. Leal Kidnapped or Sexually
                               Assaulted Ms. Sauceda.

        The victim in this case was a sixteen year old girl named Adria Sauceda. On the night

she was killed, Ms. Sauceda attended a party in a cul de sac on Vincent Street in San Antonio,

Texas. Tr. 13:25. Ms. Sauceda became extremely intoxicated. Late in the evening, a number of

men surrounded her and began to sexually assault her. Tr. 13:29; see also id. at 151. Mirasol

Torres, one of the state's witnesses, heard one of the men encouraging others to stick a bottle—or

some other object—inside her vagina. Id. at 59 (stating that she overheard someone, possibly

Ralph Guerrero, suggesting that the men stick something into Adria Sauceda's vagina). Another

state witness reported that Ms. Sauceda was unconscious as several men took turns raping her.

Id. at 151.

        Mr. Leal took no part in this horrific assault. Id. at 34-35. He was not even present at the

time, as he was driving two other girls safely to their homes. Tr. 14:348-49. When he returned

to the party, witnesses heard Mr. Leal arguing with some of the men who had been raping Ms.

Sauceda. He asked one man, angrily, "Why did you let them do this?‖ Tr. 13:35. Mr. Leal then

offered to take Ms. Sauceda home. Ms. Sauceda was last seen giggling as she was placed in Mr.

Leal's car. Id. at 106.

        Later that morning, Ms. Sauceda was found naked in a field 100 yards from the party,


                                                36
with a stick protruding from her vagina. Id. at 77-78. There was a large rock lying on her arm.

There were several tire marks around her body. The tire marks did not match the tires on Mr.

Leal's car, and were not compared to the tires of the cars of the other men at the party.

P.C. Tr. 3:136. The discovery of Ms. Sauceda‘s body was reported by some of the men who

attended the party. Tr. 13:109-111. Before her body was discovered, Ralph Guerrero and

Mickey Sanchez were seen with her purse. Id. at 42-44; 46-47; 62. They scattered its contents

and threw the purse into a tree. Id. at 44; 173-74. According to two witnesses, Ralph Guerrero

and Paco Delgado had blood on their legs. P.C. Tr. 3:117-18.

       The following day, Mr. Leal went voluntarily to the police station where he told the

police that Ms. Sauceda had gotten out of his car as he was driving her home. They quarreled, he

pushed her, and she fell and hit her head. She then appeared to lose consciousness. He panicked

and left. He denied sexually assaulting her, and stated that he had not meant to hurt her or kill

her. Tr.14:353-54.

       Because the prosecution‘s lay witnesses were unable to link Mr. Leal to the kidnapping

and sexual assault, the prosecution relied on antiquated and meaningless DNA evidence and junk

science to prove that he sexually assaulted or kidnapped the victim.


                      ii.     The State’s DNA Evidence Was Antiquated and Meaningless,
                              Yet the Defense Failed Effectively to Challenge It.

       To convince the jury that Mr. Leal sexually assaulted the victim, the state relied heavily

on the testimony of Megan Clement, a DNA expert employed by LabCorp, who concluded that

the victim was a ―possible donor‖ of blood discovered on Mr. Leal‘s underwear. Tr. 16:665-66.

This was by far the most damaging evidence to emerge at trial, particularly since no blood

consistent with that of Ms. Sauceda was found on the outer clothing Mr. Leal wore on the night




                                               37
of her death. Tr. 15:454-55; 459-60; 490. The prosecution repeatedly argued that this evidence

proved beyond a reasonable doubt that Mr. Leal had raped and killed Ms. Sauceda:

        How did that blood get on his underwear? Why is that significant? Why did the
        State of Texas spend money to show you that there was blood on the defendant‘s
        underwear? Because, I submit to you that a defendant who is wearing only his
        underwear when he is beating this girl with this rock is in the course of
        committing a sexual assault. What else could it show? Why else would he have
        his pants off?

Tr. 16:825; see also id. at 798 (―He is the only one who has DNA, consistent with the victim, on

his underwear.‖10). And the prosecution went even further than their expert, arguing that the

DNA lab had found blood ―that could only have come from Adria Sauceda‖ on Mr. Leal‘s

underwear. Id. at 828-29 (emphasis added). ).            This was not only a misstatement of Megan

Clement‘s testimony, but her testimony revealed the fallacies in her method, and the

inconclusiveness of the results.

        Dr. Elizabeth Johnson, a forensic scientist formerly with the Harris County Medical

Examiner‘s Office, reviewed the testimony of Megan Clement and documents released by

LabCorp at the request of Mr. Leal. In an affidavit tendered in support of Mr. Leal‘s Chapter 64

request for access to DNA evidence, Dr. Johnson concluded that the protocol followed by Ms.

Clement was deeply flawed and that her testimony was highly misleading. First, LabCorp failed

to ensure that the blood samples were free from contamination:

        Samples from the victim‘s blouse11 and samples from the defendant‘s underwear
        were tested at LabCorp in the same runs and often were adjacent to one another.

10
  Of course, Mr. Leal‘s underwear was the only pair tested – despite the undisputed testimony that Ms.
Sauceda was raped by numerous men, none of whom were alleged to be Mr. Leal. None of these men
were ever charged or prosecuted, and the state noticeably failed to do any testing of the readily available
forensic evidence that would have proved the identity of the perpetrators.
11
  Because Dr. Johnson refers to the victim‘s item of clothing as a ―blouse‖, we will keep that designation
throughout this Memorandum of Law. However, as the annexed photograph of the piece of clothing
shows, what Dr. Johnson calls ―blouse‖ would more commonly be known as a sweater. App. F.



                                                    38
       It is poor laboratory practice to place samples collected from the victim in close
       proximity with samples collected from the suspect. In the event of careless
       handling and tube to tube carry over contamination of DNA, false results could be
       obtained that could incriminate the suspect. In this case the DNA on the victim‘s
       blouse proved to be hers and was in high concentration. By processing the blouse
       samples along with samples cut from the defendant‘s underwear, the possibility of
       obtaining falsely incriminating results is increased. This risk would be minimized
       or eliminated if the samples had been kept separate.

Ex. 21, Affidavit of Dr. Elizabeth Johnson, ¶ 8 (May 13, 2008).

       Second, ―testimony given by Ms. Clement was misleading because it focused only on the

possibility that only [Humberto Leal García, Mr. Leal‘s girlfriend, or the victim] could be the

source of the DNA that was detected. Testimony should have been given about the frequency of

occurrence of these DNA alleles in the general population since persons other than the victim,

defendant or his girlfriend could have been the source of the detected DNA.‖ Id. ¶ 9.

       Most important, the technology LabCorp used produced results that did not establish to

any degree of certainty that Adria Sauceda‘s blood was on Mr. Leal‘s underwear. The now

outmoded technology LabCorp used:

       was very limited in its power of discrimination. Using the Polymarker test,
       underwear sample-5 gave results such that no one in the population could be
       eliminated as a contributor of the DNA detected at four of the five loci tested.
       The Polymarker results for underwear samples -1 and -3 could not eliminate
       anyone in the population at three of five loci tested at reportable levels, however
       the fourth locus, GC, showed low level activity that included everyone in the
       population as a possible contributor.

Id. ¶ 10 (emphasis added).

       Had appointed counsel sought funding for an independent expert, they could have

effectively rebutted this equivocal and misleading evidence. Instead, their cross-examination

was ineffectual and failed to expose the flaws in LabCorp‘s testing methodology.

       Apart from the testimony of the DNA expert, the state relied on the following evidence to

support the allegation of sexual assault: (1) the testimony of a bite mark expert; and (2) a brown



                                               39
pullover belonging to the victim that was found in Mr. Leal's home. Neither piece of evidence,

however, established that Mr. Leal had sexually assaulted the victim.


                         iii.     Bite Mark Evidence Generally, as well as the Bite Mark
                                  “Evidence” Introduced Against Mr. Leal at Trial Specifically,
                                  Both Amount to Junk Science.

        At trial, the state presented the testimony of Dr. Alder, a so-called ―bite mark expert,‖

who testified that Mr. Leal‘s teeth had a unique pattern consistent with one of the bite marks

found on the victim's body. Tr. 16:714-717. Evidence available at the time could have, but was

not used to reveal the sham nature of Dr. Alder‘s testimony, and bitemark evidence in general.12

That evidence has only increased in the intervening years. For example, the National Research

Council of the National Academies recently released a study regarding forensic science in the

United States. Committee on Identifying the Needs of the Forensic Sciences Community,

National Research Council, Strengthening Forensic Science in the United States: A Path

Forward (2009) (―NAS Report‖). The NAS Report notes that the field of forensic odontology

lacks solid scientific foundations, that forensic odontologists apply inconsistent methodologies to

identify bite marks, and that ―[e]ven when using the guidelines, different experts provide widely

differing results and a high percentage of false positive matches of bite marks.‖ 13 NAS Report at

128; see also Ex. 22 (Affidavit of Charles Michael Bowers) (detailing scientific studies finding


12
   Dr. Michael Bowers, a Board Certified Forensic Dentist, Associate Professor, and Deputy Medical
Examiner, reviewed Dr. Alder‘s testimony and report, and provided an affidavit detailing the fallacies in
Dr. Alder‘s methods and testimony, and bitemark evidence generally. See Ex. 22, Affidavit of Dr.
Michael Bowers, App. E. As Dr. Bower notes: ―significant skepticism about the scientific validity and
basis for bite-mark matching has existed since it was accepted into evidence in People v. Marx, 126 Cal.
Rptr. (Cal. Ct. App. 1975),‖ App. E, p.2.
13
   ―The primary source of controversy relates to the absence of scientific and empirical underpinnings
associated with real scientific disciplines. . . . Real science is marked by factors that include a reliance on
the scientific method, the ability for other researchers to replicate the tests conducted, clear statements of
operational definitions, full exposition of research methodology and statistical analysis, and limits on the
extent to which subjectivity plays a role in rendering conclusions.‖ App. E, p.3 (citations omitted).



                                                      40
frighteningly high error rates in bitemark identification analysis). In light of these concerns, the

report concludes that bite mark analysis should not be used for the positive identification of

suspects in criminal proceedings. NAS Report at 128. In 2007, the New York Times reported

that ―[p]rosecutors have invoked bite-mark matches to secure convictions in numerous cases,

only to see these convictions overturned when DNA or other evidence has become available.‖

Fernanda Santos, Evidence From Bite Marks, It Turns Out, Is Not So Elementary, N.Y. TIMES,

Jan. 28, 2007, available at http://www.nytimes.com/2007/01/28/weekinreview/28santos.html.

―In fact, it is now widely recognized that bitemark analysis – when used to make ―positive‖

matches - masquerades as a reliable scientific discipline.‖ Ex. 22 at p.8

       Mysteriously, saliva samples from the alleged bite marks on Ms. Sauceda‘s body were

never tested, even though samples could have been subjected to DNA testing which could have

definitively identified the assailant. See Joseph L. Peterson & Anna S. Leggett, The Evolution of

Forensic Science: Progress Amid the Pitfalls, 36 STETSON L. REV. 621, 654 (2007) (citing case

in which DNA testing of saliva from bite-marks that were originally thought to be from the

suspect determined that the saliva sample actually had DNA of different origins). See also

Santos, N.Y. TIMES, Jan. 28, 2007; see also Andrew Pollack, A Revolution at 50: How the Arms

of the Helixes Are Poised to Serve, N.Y. TIMES, Feb. 25, 2003, at F5 (describing the exoneration

of Ray Krone after saliva tests disproved the testimony of state's bite-mark expert); Ex. 22 at 14-

17 (listing cases in which bitemark ―experts‖ identified a purported match between a defendant‘s

teeth and impressions on a victim‘s skin, only to be proven wrong by subsequent DNA testing).

In light of the undisputed evidence that the victim had been viciously gang raped on the evening

she was killed, the state's failure to obtain saliva samples and subject them to DNA testing is

both inexplicable and inexcusable.




                                                41
        Testimony introduced at the state post-conviction hearing further illustrated the flaws

inherent in the conclusions of state‘s witness Dr. Alder.           Dr. Paul Stimson, a forensic

odontologist, testified that at least four of the students in his dental school class—who took

impressions of their teeth as a school exercise—would leave bite marks similar to Mr. Leal‘s.

P.C. Tr. 5:81. As Dr. Bowers explains, none of the bitemark comparison principles necessary to

reach a scientifically defensible conclusion that Mr. Leal‘s teeth matched the purported

―bitemark‖ on Ms. Sauceda‘s skin ―can be considered as scientifically valid.‖ Ex. 22 at p.2.

Although Dr. Alder admits there are ―inconsistencies‖ between the impressions and exemplars of

Mr. Leal‘s teeth, he terms them ―explainable.‖ However, ―‗[e]xplainable inconsistencies‘ only

exist for use in comparison of dental radiographs and records to postmortem dental exams of

unknown persons. . . . If there are inconsistencies in a bitemark comparison, the default result is a

mis or non-match.‖ Ex. 22 at p. 8. In sum, ―Dr. Alder‘s assumptions, methods and opinions in

this case are scientifically unsupportable and are wholly unreliable.‖        Ex. 22, Affidavit of

Michael Bowers, App. E, p. 18.

        Neither the evidence regarding the general unreliability of bitemark evidence, nor the

evidence demonstrating the invalidity of the methods used by the state‘s bitemark ―expert,‖ were

introduced at trial.


                        iv.     Mr. Leal’s Parents Were Never Called as Witnesses to Explain
                               the Presence of Ms. Sauceda’s Blouse in Mr. Leal’s House.

        At trial, the state introduced the blouse worn by the victim on the night she was killed,

which was found in Mr. Leal‘s house. The defense failed to introduce the testimony of Mr.

Leal‘s parents, who would have provided an innocent explanation for the presence of the blouse

inside their home. At the state post-conviction hearing, Mr. Leal‘s father explained that he found

the blouse on the street early on the morning of the murder and put it into a pile of clothing to


                                                 42
donate to Mexico. P.C. Tr. 2:81. Mr. Leal‘s mother testified that she often took clothing to

Mexico and explained that she had intended to wash the shirt because it was ―dirty.‖14 Id. at 92-

93. Given the close proximity of the party, the site of the murder, and the Leal García home—

which was steps away from where the victim was gang raped and near where her body was

found—this testimony is entirely credible. Yet defense counsel never introduced this testimony

at trial.


                          v.     Others Had the Opportunity and Motive to Sexually Assault
                                 the Victim.

            It is undisputed that Ms. Sauceda was gang-raped by numerous men at the party the

evening before her murder. Tr. 13:29; 151. Her body was discovered only 100 yards east of the

party. Tr. 13:121. One of the men involved in the gang-rape—possibly Ralph Guerrero—

suggested that a foreign object be placed in the victim‘s vagina. Id. at 59. Guerrero later took

the victim‘s purse and threw it into a tree to prevent the police from discovering it. Id. at 42-44;

46-47; 62; 173-74. Tire castings taken from the scene of the murder did not match Mr. Leal‘s

car. P.C. Tr. 3:136. According to the medical examiner, it is possible that the beating Ms.

Sauceda suffered occurred at two distinct times with up to a 30-minute gap in between.

Tr. 15:631. This evidence casts serious doubt on Mr. Leal‘s guilt and suggests that one or more

of the rapists may have discovered her unconscious, whereupon they sexually assaulted her

again. The State‘s failure to prosecute any of the men at the party who were known to have

participated in the gang rape, failure to conduct any of the testing which would have linked those

men to the assault by forensic means, and the unreliable forensics they were forced to rely on to



14
 The attached photograph of the shirt in question demonstrates that it looks dirty, rather than bloody.
App. F.



                                                    43
pursue a capital case against Mr. Leal, all raise valid questions about Mr. Leal‘s guilt, and the

reasons for the state‘s decisions.


                          vi.   A Rational Jury Could Not Have Convicted Mr. Leal of
                                Kidnapping on the Basis of the Evidence Introduced at Trial.

        The state relied on two pieces of evidence to suggest that a kidnapping occurred. First,

the state argued that luminol testing revealed the presence of Ms. Sauceda's blood in Mr. Leal's

car, indicating, the state argued, that Ms. Sauceda had struggled to get away from him while still

inside the car, and, thus, Ms. Sauceda was being taken against her will. Second, the state argued

that because the location of the victim's body was not en route to her house, Mr. Leal must have

taken her there against her wishes. Tr. 16:793. ). Neither the state‘s evidence nor argument can

bear scrutiny,

        Police Officer Warren Titus testified that he had sprayed luminol on the interior of Mr.

Leal's car. According to Officer Titus, the luminol revealed the presence of blood. Tr. 14:293-

94. This, argued the prosecution, proved that Mr. Leal had kidnapped the victim. Tr. 16:793

("you have heard that there was blood in the car, blood that the defendant and/or his family

attempted to wipe up so that you would not see it, she was kidnapped"); 823 ("she bled all over

the inside of that door, as she tried to get out‖).

        In reality, the luminol testing proved nothing. Luminol is merely a presumptive test for

blood. Luminol cannot discern animal blood from human blood, and it also reacts to substances

that are not blood at all. See Filippo Barni et al., Forensic Application of the Luminol Reaction

as a Presumptive Test for Latent Blood Detection, 72 TALANTA 896, 905 (2007), available at

http://www.sciencedirect.com ("There is a wide range of environmental and pharmaceutical,

domestic and industrial substances which are able to affect luminol blood-induced

chemiluminescence . . . such as soils, detergents, bleaches, carpet, metal objects, tools, plastic


                                                      44
panels, wood, and vegetable compounds."). Scientists, lawyers, and courts have long known that

luminol cannot detect human blood and the research demonstrating luminol's fallibility was

available long before Mr. Leal's trial. See, e.g., Brenk v. State, 847 S.W.2d 1, 9 (Ark. 1993);

State v. Moody, 573 A.2d 716, 722 (Conn. 1990).

        Luminol testing is so unreliable, and can be so misleading to the jury, that courts

frequently exclude the results of luminol testing unless additional, confirmatory tests have been

done to determine the presence of human blood.15 As the Arkansas Supreme Court observed:

        Luminol reacts with certain metals and vegetable matters as well as blood, animal
        and human to give off a light blue luminescence similar to a luminescent watch
        dial. It is impossible to tell without follow-up testing which of the possible
        reactants is causing the reaction . . . . Additionally, luminol is not time specific.
        That is, a reaction will occur even many years after a reacting substance has been
        in place, so it is impossible to tell how long the substance that is causing the
        reaction has been in place.

Brenk, 847 S.W.2d at 9. Yet in this case no confirmatory tests were done, and there was no

blood found on Mr. Leal's jeans, boots, socks, red T-shirt, or on the floor mats of the Mercedes.

Tr. 15:454-55; 459-60; 490. ). Nonetheless, the State argued that the luminol testing revealed the

presence of Ms. Sauceda‘s blood. There is absolutely no scientifically defensible evidence

available – at trial or otherwise – that permits such a definitve argument. Yet both the argument

and the evidence were left unchallenged by trial counsel.

        There is likewise no evidence that Mr. Leal drove Ms. Sauceda anywhere against her

will. She was seen "willingly" entering Mr. Leal‘s car. Tr. 13:106. At the time, she was highly


15
  See, e.g., Brenk v. State, 847 S.W.2d at 9 (finding luminol testing inadmissible because "luminol tests
done without follow-up procedures are unreliable to prove the presence of human blood or that the
substance causing the reaction was related to the alleged crime"); State v. Daniels, 179 S.W.3d 273, 287
(Mo. Ct. App. 2005) (holding that the use of luminol testing without confirmatory scientific testing to
confirm a positive luminol test prejudiced the defendant's right to a fair trial); U.S. v. Hill, 41 M.J. 596,
602 (A. Ct. Crim. App. 1994) (holding that military judge ―erred in admitting the expert testimony on
Luminol testing of the appellant's PT uniform to show that there was blood on it").



                                                     45
intoxicated. Id. at 157-58. One witness testified that she could not explain where she lived when

he asked her, id., and another witness testified that he heard her giggling when she entered Mr.

Leal‘s car. Id. at 106. No foreign tissue was found underneath Ms. Sauceda's fingernails, which

further undermines the state's unsupported theory that the two struggled inside the car.

Tr. 15:463-64; 467; 634.

       The court recognized that this evidence was weak—so weak that it hesitated to instruct

the jury on the charge of kidnapping (notwithstanding the fact that the Court did not have before

it the full breadth of evidence indicating the profound unreliability of the luminol ―evidence‖

presented by the state). Tr.16:771. In sum, there was no reliable evidence to prove that a

kidnapping occurred – only the state‘s unsubstantiated arguments. Consular assistance would

have assured that trial counsel moved to preclude the luminol testing, and effectively countered

the state‘s threadbare ―proof‖ that Mr. Leal kidnapped Ms. Sauceda.



                      b.     Consular Assistance Would Have Resulted in the
                             Presentation of Powerful and Compelling Mitigation

       Unlike many death penalty cases, the prosecution had very little aggravating evidence to

convince a jury that Mr. Leal was the worst of the worst, and deserving of a sentence of death.

Mr. Leal had no criminal record, and was only 21 years old at the time of the offense. The

state‘s entire penalty phase case consisted of evidence that Mr. Leal had allegedly committed an

unadjudicated sexual assault, and testimony from a high school administrator that he had

behaved badly in school.

       Had they received the assistance of consular officials, defense counsel could have

rebutted both pieces of aggravating evidence and countered the state‘s characterization of Mr.

Leal with powerful and compelling mitigation. Since learning of Mr. Leal‘s plight, Mexico has



                                               46
funded a mitigation investigation in his case that has led to the discovery of evidence that would

have transformed the penalty phase defense, including Mr. Leal‘s childhood sexual abuse by a

parish priest, physical abuse at the hands of his parents, learning disabilities and brain damage.



                        i.      The Prosecution’s Aggravating Evidence Was Weak
                                Yet Uncontested by the Defense

        At the penalty phase, the state‘s main aggravating evidence was an alleged prior sexual

assault for which Mr. Leal was never arrested or charged.16 Inexplicably, the defense failed to

introduce evidence contained in the prosecution‘s file that would have substantially undermined

the testimony of the alleged victim in that case. Specifically, the police had interviewed a

witness, Joe Bernal, who told them that he had seen Mr. Leal and the alleged victim at a party

together:

     They were having a conversation, they were not kissing or anything like that, the only
     touching I saw them do was when she touched his arm. I saw them walking off together,
     but I don‘t know where they went. Later, they came back to the party together, and they
     were holding hands. I saw hickies all over Melissa‘s neck. They looked happy together.
     Melissa did not seem scared at all.

Ex. 23 (Statement of Joe John Bernal).

        The State‘s other significant penalty-phase witness, Hoyt Garner, has since been

discredited by his colleagues at South San Antonio High School. Mr. Garner, a former vice-

principal, testified that in his opinion Mr. Leal had ―no respect for authority‖ and would never



16
   As noted by the Inter-American Commission on Human Rights, ―using evidence of unadjudicated
crimes in this manner is, effectively to presume the defendant‘s guilt and impose punishment . . . through
a sentencing hearing rather than a proper and fair trial process accompanied by all of the substantive and
procedural protections necessary for determining individual criminal responsibility.‖ The Inter-American
Commission on Human Rights found that use of this unadjudicated offense during the punishment phase
of Mr. Leal‘s trial violated his rights to fair trial and due process under the American Declaration.
IACHR Report No 90-09 at 29 ¶ 145.




                                                   47
change. Tr. 17 at 8. However, Mr. Garner has been described as ―the most unprofessional

teacher‖ by his colleagues and was known for being physically rough with students. Other

teachers and school staff did not share Mr. Garner‘s opinions of Humberto Leal. Mr. Calhoun,

who later served as vice principal of Mr. Leal‘s high school, stated that he would have testified

in Mr. Leal‘s favor if asked. Ex. 24 (Interview Memo with Richard Calhoun). However, Mr.

Leal‘s trial attorneys failed to contact any of his teachers to ask them to testify on Mr. Leal‘s

behalf, and the jury never heard any of the evidence of Mr. Leal‘s positive achievements and

relationships with teachers in high school.

       Mr. Leal‘s appointed lawyers conducted no meaningful mitigation investigation, retained

no experts, and had no apparent penalty phase strategy—so their penalty phase defense was

predictably unfocused and slipshod. The sole expert called by the defense to testify regarding

Mr. Leal‘s mental state at the time of the crime was a court-appointed psychiatrist, Dr. Potterf,

who was not a member of the defense team, who was provided with no records regarding Mr.

Leal, who had no contact with his family and was not even interviewed by the defense prior to

giving testimony. P.C. Tr. Vol. 2, 17:13-15, 19:1-3, 4-10, 15-23 (Oct. 19, 1998).

       Originally retained by the court only to determine if Mr. Leal was competent to stand

trial, Potterf merely served to confirm the jury‘s erroneous perception that Mr. Leal represented a

future danger. First, Dr. Potterf testified that Mr. Leal suffers from alcohol dependence and

pathological intoxication, and that pathological intoxication, an incurable condition, can produce

a ―sudden change in mental status, to the extent that [the person] become[s] very aggressive,

very much out of contact with reality.‖ Tr. 17:78-79 (July 12, 1995). Second, when asked what

effect being ―repeatedly beaten‖ by his father would have on a boy, Dr. Potterf stated, ―[p]eople

who are treated like that tend to…develop into antisocial [personalities]‖ who are prone to ―not




                                                48
adhering to rules and regulations that ordinary people adhere to.‖      Tr. 17:82-83. Dr. Potterf

further stated that people with antisocial personality disorder are usually characterized as

dangerous. Tr. 17:84.

       In light of the jury‘s task at the sentencing stage, the damage caused by Dr. Potterf‘s

testimony far outweighed its benefits. In Texas, the jury must determine ―whether there is a

probability that the defendant would commit criminal acts of violence that would constitute a

continuing threat to society.‖ Tex. Code. Crim. Proc. Article 37.071, § (2)(b)(1). By testifying

that Mr. Leal might ―develop into‖ an antisocial personality who was ―dangerous,‖ Potterf

essentially answered the future dangerousness question for the jury.

       The defense also utterly failed to explore Mr. Leal‘s life history to provide a mitigating

explanation for his role in the crime. At trial, Mr. Leal‘s mother testified only briefly. Tr. 17:

132-135. His mother mentioned that she had spanked Humberto as a child, ―[s]ometimes lightly,

sometimes very strong,‖ and that he had a drinking problem, an assessment based on one

occurrence when Humberto passed out drinking beer. Tr. 17:133-134. Mr. Leal‘s brother,

Carlos, only testified as to Humberto‘s relationship with Melissa Ruiz, the alleged rape victim

whose testimony the prosecution used to show that Mr. Leal presented a continuing danger to

society. Tr. 17:128-130.




                        ii.   With the Assistance of Investigators and Experts Funded by
                              the Mexican Consulate, the Jury Would Have Heard
                              Compelling Mitigating Evidence That Would Have Persuaded
                              at Least One of Them Not to Vote for Death.

       With the investigative resources and expert funding provided by the consulate, effective

counsel could have presented a powerful case in mitigation. With Mexico‘s assistance, the

following mitigating evidence has come to light.


                                               49
        Both of Mr. Leal‘s parents grew up in slums outside of Monterrey, Mexico and were

brought up in homes where domestic violence was an accepted part of life.           His mother,

Francisca, and her six siblings were raised on a meager diet of soup and beans in a one-room

home. Francisca‘s father was murdered in jail when Francisca was seven. Francisca‘s mother

would beat the children violently with a belt when she was angry. Francisca met Mr. Leal‘s

father, Humberto Sr., when she was fourteen years old. Although Humberto Sr. came from a

family that was even more impoverished than her own, Francisca ran away to marry him when

she was just sixteen in order to escape her abusive mother. Unfortunately, Humberto Sr. was

also extremely violent towards Francisca, especially when intoxicated, and beat her once a week

throughout their marriage. Ex. 25 (Social History of Humberto Leal García).

       Francisca became pregnant with Humberto, her second child, when she was only 18 years

old. Due to the family‘s poverty, Francisca had very little to eat while she was carrying

Humberto. Malnutrition may have been a factor in Humberto‘s slow childhood development;

Francisca recalls that he began walking and talking later than other children.       Id.   When

Humberto was one and a half years old, the family moved to San Antonio, Texas. Humberto Sr.

spent all his time working as a mechanic to provide for his family, and left the child-rearing

responsibilities to Francisca. Francisca was young and felt isolated in a foreign country where

she did not speak the language. With no outside guidance on childrearing, Francisca fell into old

patterns of abuse with her own children, beating Humberto and his older sister Nancy with a belt.

On one occasion, she tied Nancy and Humberto to a tree by their legs and hit them when they

tried to escape. Francisca and Humberto Sr. also fought frequently in front of the children. Id.

Once, when Humberto tried to protect Francisca from his father, Humberto Sr. beat Humberto so

hard that Francisca called the police. Ex. 26, Offense report [File 0096 - 0100] (Nov. 8, 1988).




                                               50
    Francisca‘s isolation from the community and embarrassment over her inability to speak

English directly affected Humberto‘s education. As a child, he was required to repeat the first,

third, fifth, sixth, and ninth grades. Ex. 25. When he was in second grade his teachers suspected

he had serious learning disabilities and recommended him for special education. However,

because Humberto‘s parents refused to grant permission, his teachers were unable to test him and

place him in special education. Humberto also had a hard time socially in elementary school.

According to his brother Wally, who is one year younger than Humberto, neighborhood children

often mocked him for his strange name, appearance (one of Humberto‘s eyes appears lower than

the other), gait (Humberto fell down a flight of stairs when he was four and had reconstructive

foot surgery that required him to wear special shoes), and for being ―slow.‖

       To find a safe haven from the violence at home and in his neighborhood, Humberto

sought refuge in the church. He took communion classes at St. Clare church, where the nuns

would frequently scold him for misbehaving in class. As punishment, he was sent to Father

Federico Fernandez, the parish priest. Had the sisters known the sort of punishment that Father

Fernandez inflicted, they never would have allowed young Humberto to stray into his clutches.

       Dr. David Lisak, a clinical psychologist and expert in the field of male sexual abuse, has

examined Mr. Leal, who reluctantly reported the series of events when Humberto was in fourth

grade that culminated in his anal rape by Father Fernandez. Dr. Lisak reports:

       Mr. Leal described various incidents that occurred during these ―punishments‖ that are
       entirely consistent with how child abusers groom their victims. For example, Mr. Leal
       described how Father Fernandez would approach him from behind while he was bent
       over cleaning the pews. At first he would ―accidentally‖ bump into Mr. Leal, always
       touching him somewhere near his buttocks. At a later point the priest‘s touch became
       increasingly explicit. He would run his finger between Mr. Leal‘s buttocks.

       When Mr. Leal had to go to the storage supply closet to collect or return cleaning
       supplies, Father Fernandez would follow him and in the confined space of the closet run
       his hands over Mr. Leal‘s body. At other times, he would pull Mr. Leal to him as if to



                                               51
       hug him, but push Mr. Leal‘s face into his crotch in the course of doing so. He would
       also follow Mr. Leal into the bathroom and expose himself. At first, he would do so
       while urinating, but at a later point he would pull out his penis and tell Mr. Leal that one
       day his penis would also be big. At a later point he showed Mr. Leal photographs of
       penises…

       After exposing his penis to Mr. Leal several times, Father Fernandez began telling him to
       touch it. Using the tremendous authority and power vested in him as a priest, Father
       Fernandez told him that he would not get into trouble for doing so. When Mr. Leal began
       disclosing this phase of the abuse his voice became much more halting. At various points
       he had to stop speaking, and it was evident that he was experiencing both intense shame
       and anguish.

       Eventually, Mr. Leal disclosed that the abuse escalated to Father Fernandez rubbing his
       penis all over Mr. Leal‘s face. When I asked Mr. Leal if the priest had penetrated his
       mouth with his penis, Mr. Leal said that he could not remember. However, he did
       remember feeling wetness all over his face.

       Father Fernandez‘s sexual abuse of Mr. Leal culminated in a violent, anal rape. Mr. Leal
       could not remember where it occurred. His memories are fragments: feeling the priest‘s
       penis rubbing against his back and his buttocks; feeling the priest pushing his penis into
       his rectum; feeling intense pain in his rectum. Mr. Leal also remembered feeling searing
       pain in his rectum for days following the rape, especially when he defecated.

Ex. 27, Report of Dr. David Lisak, pp. 5-7.   Dr. Lisak explains that these repeated sexual

assaults caused unimaginable emotional and psychological pain and enduring trauma:

       Mr. Leal‘s disclosure was anguished, and at several points during his description of the
       sexual abuse he experienced physical sensations which, by his description, were very
       likely body memories associated with being raped by Father Fernandez. It was apparent
       that he was experiencing intense humiliation and shame, emotional states that at times
       were so intense that he could not continue speaking…

       The effects on Mr. Leal of being abused and raped by his parish priest were profound and
       lifelong. He has been plagued his entire life by chronic nightmares. In the nightmares,
       he is often surrounded by men and knows that something terrible is about to happen.
       Then he sees a penis in front of his face and in that instant he wakes up covered in sweat
       and feeling intense pain in his rectum.

       These nightmares are referred to as ―re-experiencing symptoms‖ and are a core part of
       the symptoms associated with Posttraumatic Stress Disorder (PTSD), the most common
       mental disorder that afflicts victims of serious trauma, such as childhood abuse, rape and
       combat. Even a single incident of rape can cause severe and long lasting PTSD. [citation
       omitted] The overwhelming terror and helplessness experienced at the time of the rape
       are re-experienced over and over through nightmares and intrusive memories and



                                               52
          flashbacks. With each re-experience, the brain is bathed in the same neurochemicals that
          flooded it at the time of the rape. Thus, victims of rape- including childhood rape- are
          effectively raped over and over again.

Id. at pp. 5, 10-11.

          Dr. Lisak explains that the trauma Humberto experienced as a result of his victimization

was severe and lasting:

          Childhood sexual abuse is devastating to the developing child. To a child like Mr. Leal,
          who is growing up in a home filled with violence and abuse, it is often catastrophic. And
          in Mr. Leal‘s case, the fact that he was abused and then raped by a Catholic priest, a man
          who represented the authority of the Church and was viewed as an emissary of God,
          profoundly magnified this trauma. The abuse and rape left Mr. Leal with lifelong scars.
          It ruptured his capacity to trust people, and cast him into a permanent state of confusion
          and doubt about his essential worth as a person and as a man.

Id. at pp. 14-15.

          Mr. Leal‘s account of his sexual abuse is corroborated by accounts of other victims.

Fernandez was charged with indecency with a child in 1988 after two neighborhood boys

accused him of having fondled them. See Ex. 28 (Police Reports from 1988 fondling incidents).

In 1983, he was charged with indecent exposure. Ex. 29 (Police Reports from 1983 indecent

exposure case). Four other victims have recently disclosed that they, too, were sexually abused

by Father Fernandez.17 Exs. 30 - 33. Sister Maria, who taught Humberto Leal‘s communion

classes, told other sisters in her order that the priest was an ―evil man.‖ She warned a parishioner

not to leave her children alone with Fr. Fernandez or drink anything that Fr. Fernandez gave her.

Ex. 34, ¶ 8. Sister Maria requested a transfer from St. Clare‘s, and eventually left the church

entirely. Ex. 34, ¶ 5; Ex. 35, ¶ 12. Shortly after Fr. Fernandez was criminally charged with

sexual abuse in 1988, Sister Maria sent a book dedication to her good friend in which she stated,




17
     The names of these victims and any identifying information have been redacted to protect their privacy.



                                                      53
―It‘s all over! The victory is won through Jesus Christ our Lord! Sister Maria later killed herself.

Ex. 36.

          According to Dr. Lisak, Mr. Leal‘s account is credible and consistent with other sexual

abuse survivors:

          It is my professional opinion, based upon my interview with Mr. Leal, my review of
          relevant materials, and my evaluation of Mr. Leal‘s disclosure that he was sexually
          abused by his parish priest by the age of 11 or younger. Mr. Leal‘s description of the
          priest‘s behavior, his description of his own symptoms and of the impact of the rape over
          time are all entirely consistent with the experience of victims of sexual abuse, and they
          leave no doubt that Mr. Leal has made a credible disclosure.

Ex. 27 at p. 14.

          Mr. Leal also suffers from brain damage, the effects of which were exacerbated by the

trauma of his sexual abuse and family violence. As a child, he sustained a number of traumatic

head injuries that went untreated. Once he fell backwards off a swing onto concrete and another

time he fell head first from the bed of a truck onto a concrete driveway. As a teenager, Mr. Leal

was involved in four automobile accidents and a motorcycle accident. According to Dr. Ricardo

Weinstein, a clinical psychologist retained by the government of Mexico, neuropsychological

tests indicate that Mr. Leal has significant damage to the frontal lobes of his brain. His scores on

subtests of the WAIS IV, which measure abstract reasoning and understanding of social norms,

place him within the mildly mentally retarded range. Dr. Weinstein also stated that Mr. Leal

scored in the second percentile rank on the NAB Executive Functions Index and the CNS Vital

Signs tests, and scored two standard deviations below the mean on the D-KEFS tests. A

Quantitative Electroencephalogram, or QEEG, showed ―abnormalities in his brainwave patterns‖

indicative of developmental and acquired brain dysfunction. All of these tests demonstrate that

Humberto has extensive damage to the frontal lobes of his brain, which direct the brain‘s

executive functions. Ex. 37, Affidavit of Dr. Ricardo Weinstein, ¶¶ 17-22.



                                                 54
       Dr. Weinstein‘s report attests that Humberto‘s frontal lobe dysfunction had pronounced

effects on his behavior. Frontal lobe dysfunction inhibited his ability to make decisions, foresee

the consequences of his actions, assess risk, and adjust to different social environments. In his

affidavit, Dr. Weinstein drew extensively on research on the effects of childhood abuse and

neglect on adults. He noted that adult survivors of childhood trauma, such as abuse and neglect,

may be ―significantly more vulnerable to the effects of stress.‖ Id. at ¶ 37.

       Dr. Weinstein also expressed concern about Mr. Leal‘s youth when he was convicted (he

was only 21 years old at the time of his arrest). He notes that ―[t]he frontal lobes are the last part

of the brain to develop and are not fully mature in males until they reach their early 20s,‖ and

that ―[m]ultiple studies show that this lack of maturity can impair executive functions, including

decision-making abilities and judgment.‖ Id. at ¶ 21.

       While Mr. Leal faced great challenges in his personal life as a result of a troubled home

life, developmental disabilities, sexual abuse, and neurological damage, he was never involved

with drugs or gangs like many other youths from his neighborhood. Neighbors remember him as

the most responsible of his siblings. He began working in his father‘s garage at age thirteen, and

would typically go straight to work after school.         Family and friends recall Humberto as

something of a loner, but talkative and eager to help others when he could, helping his younger

sister Angela with her homework and assisting other students in his vocational classes in high

school. Ex. 25 (Social History of Humberto Leal García).

       Several high school teachers remember him as being generally well behaved and friends

remember he was popular with his teachers. Mr. Leal formed personal relationships with his

guidance counselor, Joann Danklef, and his 9th grade geography teacher Sharon Trujillo, taking

an interest in their families and continuing to stay in touch for years after high school. When he




                                                 55
was unable to pass the Texas Assessment of Academic Skills tests required to graduate, Ms.

Danklef helped Humberto sign himself into special education when he turned eighteen and could

finally enroll without the consent of his parents. Ex. 25 (Social History of Humberto Leal

García). On his own initiative, and because of the positive relationships he built with his

teachers, Mr. Leal became the first member of his family to hold a high school diploma.

Graduating from high school was one of the proudest moments of Humberto‘s life.

        Testimony regarding these profound experiences would have provided the jury with

mitigating evidence to counter the state‘s portrayal of Mr. Leal as a monstrous and violent beast.

The evidence regarding Mr. Leal‘s sexual abuse, in particular, is profoundly humanizing. Had

the jury heard all of the mitigating evidence that could have been presented with consular

assistance, there is a reasonable likelihood that at least one juror would have voted to spare Mr.

Leal‘s life.

                         c.       Consular Assistance Would Have Facilitated a Plea
                                  Agreement

        Another crucial aspect of Mexican consular expertise is active intervention to facilitate

plea agreements. As Mexico noted in its brief to the International Court of Justice in Avena,

        Consular officers play two critical functions in the delicate, often protracted
        negotiations that lead to a plea bargain. First, consular officers meet with
        prosecutors, or present written submissions, that contain crucial mitigating
        evidence. Often, consular officers will have gathered this evidence themselves, in
        Mexico, after learning of the defendant‘s detention. The consulate commonly
        searches all archives and databases in Mexico to determine whether the defendant
        has a prior criminal record, and provides documentation of that search to defense
        counsel. Other times, consular officers will obtain school and hospital records that
        provide proof of a defendant‘s mental or physical condition. Sometimes, consular
        officers can explain cultural factors that mitigate the defendant‘s culpability.

Memorial of Mexico (20 June 2003), para. 63.            In the several years alone, Mexican consular

assistance has been crucial in averting capital sentences in hundreds of cases. See Gregory J.

Kuykendall,     Alicia        Amezcua-Rodriguez,    and     Mark    Warren,    Mitigation   Abroad:


                                                   56
Preparing a Successful Case for Life for the Foreign National Client , 36 HOFSTRA L. R. 1006,

1000 (2008). As early as 1990, in the Texas death penalty case of Mexican nationals Hector

Morales Villa and Omar Ayala Mendoza, consular assistance was crucial in obtaining a plea

agreement prior to trial. Ex. 17 at App. 3 (Affidavit of Victor Manuel Uribe). Mexican consular

officers are trained to recognize and emphasize the importance of the early development of

mitigating evidence (particularly evidence of mental impairments), precisely because of the

significance of that evidence in persuading prosecutors to exercise their discretion by not seeking

the death penalty. In a case like Mr. Leal‘s, where the defendant was 21 years old with no prior

criminal record or propensity for violence, and the evidence in support of capital murder was

strained at best, timely consular involvement could easily have resulted in a reduced charge.



                      d.      The Inter-American Commission Has Determined That
                              Mr. Leal Was Prejudiced by the Violation of the Vienna
                              Convention in His Case.

       The only body to consider Mr. Leal‘s claim of prejudice resulting from the Vienna

Convention violation, using the standard mandated by the Avena Judgment, concurs that he was

prejudiced by the violation. The competence and expertise of that body to reach that conclusion

cannot be questioned.      Indeed, the United States, appearing before the Inter-American

Commission, has itself argued that ―under the Charter of the OAS, the Commission has of course

the competence and responsibility to promote observance of and respect for the standards and

principles set forth in the American Declaration of the Rights and Duties of Man (―American

Declaration‖). The United States has consistently displayed its respect for and support of the

Commission in this regard, inter alia by responding to petitions presented against it on the basis

of the Charter and the Declaration.‖ Andrews v. United States, Case 11.139, Inter Am. C.H.R.,

Report No. 57/96, OEA/Ser.L/V/II.98, doc. 6 rev. ¶ 59 (1996). See also U.S. Views on the


                                                57
American Convention on Human Rights and the Inter-American Human Rights System,

Remarks by Victor Marrero, U.S. Permanent Representative to the OAS, presented to the

Committee on Juridical and Political Affairs, Organization of American States, October 20, 1999

(―We affirm no standard that we are not prepared to have applied to ourselves and our support is

for a process to which we ourselves have submitted.‖).

       On August 7, 2009, the Inter-American Commission on Human Rights found that the

United States had violated Articles I, XVIII and XXVI of the American Declaration of the Rights

and Duties of Man in Mr. Leal‘s case. Exhibit 2, Medellín. Ramírez Cárdenas and Leal García v.

United States, Case 12.644, Inter-Am. Comm‘n H.R., Report No. 90/09, OEA/Ser.L/V/II.135,

doc. 37 ¶ 157 (2009).      Further, after examining the evidence in the record before it, the

Commission determined that Mr. Leal was prejudiced by the violation of his rights to consular

notification and assistance. Specifically, the Commission found:

    It is apparent from the record before the Commission that, following [Mr.] Leal
    Garcia‘s conviction and sentencing, consular officials were instrumental in gathering
    significant evidence concerning their [his] character and background. This evidence,
    including information relating to [his] family life as well as expert psychological
    reports, could have had a decisive impact upon the jury‘s evaluation of aggravating and
    mitigating factors in [his] case[]. In the Commission‘s view, this information was
    clearly relevant to the jury‘s determination as to whether the death penalty was the
    appropriate punishment in light of [his] particular circumstances and those of the
    offense…

    The potential significance of the additional evidence in Mr. Leal García‘s case is
    enhanced by the fact that apart from the circumstances of his crime, the only
    aggravating factors against him consisted of evidence of an unadjudicated crime.
    Moreover, the petitioner made additional submissions based on evidence gathered
    before and after his conviction and sentencing, which raises serious doubts regarding
    the criminal conduct attributed to him. These elements confirm that the evidence
    gathered through the assistance of consular officials may have had a particularly
    significant impact upon the jury‘s determination of responsibility, or at the very least
    the appropriate punishment for Mr. Leal García.

Id. ¶¶ 128, 131 (2009). Based upon the foregoing, the Commission concluded that the United

States‘ obligation under Article 36(1) of the Vienna Convention to inform Mr. Leal of his right


                                              58
to consular notification and assistance constituted a fundamental component of the due process

standards to which he was entitled under the American Declaration, and that the State‘s failure to

respect and ensure this obligation deprived him of a criminal process that satisfied the minimum

standards of due process and a fair trial required by the Declaration. Id. ¶ 132.

       As to remedies, the Commission recommended that Mr. Leal‘s death sentence be vacated

and that he be afforded ―a new trial in accordance with the equality, due process and fair trial

protections, prescribed under . . . the American Declaration, including the right to competent

legal representation.‖ Id. ¶¶ 160(1), 169(1).



VI.    PRAYER FOR RELIEF

       WHEREFORE, Mr. Leal prays that this Court stay his execution to allow Congress a

meaningful opportunity to enact the Consular Notification Compliance Act, which would grant

Mr. Leal a right to review and reconsideration of his conviction and sentence in light of Texas‘

undisputed violation of Article 36 of the Vienna Convention on Consular Relations; grant a writ

of habeas corpus vacating his conviction and death sentence and discharging him from

confinement; and grant other relief, both in law and in equity, to which Petitioner may show

himself entitled.

       Petitioner respectfully requests that this petition be stayed and held in abeyance pending

the resolution of Mr. Leal‘s successive application for writ of habeas corpus in the Texas Court

of Criminal Appeals.



June 15, 2011                                   Respectfully submitted,

                                                _______________________
                                                SANDRA L. BABCOCK
                                                Texas Bar No. 01481700


                                                  59
Clinical Professor of Law
Northwestern University School of Law
357 E. Chicago Avenue
Chicago, Illinois 60611
(312) 503-0114 (tel.)
 (312) 503-2798 (fax)

MAURIE LEVIN
Texas Bar No. 00789452
University of Texas School of Law
Capital Punishment Center
727 East Dean Keeton
Austin, TX 78705
(512) 232-7795
(512) 232-9171 (fax)

Counsel for Petitioner




  60
                                 CERTIFICATE OF SERVICE

       I hereby certify that on this 15th day of June 2011, a true and correct copy of the
foregoing was served upon opposing counsel by electronic mail to:

       Edward Marshall
       Office of the Attorney General
       Capital Litigation Division
       300 W 15th Street
       Austin, TX 78701

Mr. Marshall consented to electronic service.


                                              Sandra L. Babcock




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