Monday, April 7, 2014
Media Advisory: Ramiro Hernandez scheduled for execution

AUSTIN –Pursuant to an order entered by the 216th District Court in Kerr County, Ramiro Hernandez a/k/a Ramiro Hernandez Llanas is scheduled for execution after 6 p.m. on April 9, 2014. In 2000, a Bandera County jury found Hernandez guilty of murdering Glen Lich during the course of committing or attempting to commit the offense of sexual assault of Lera Lich, and while in the course of committing or attempting to commit the offense of robbery of Lera Lich, and while in the course of committing or attempting to commit the offense of burglary of a habitation of Lera Lich with intent to commit theft and sexual assault.

FACTS OF THE CRIME

The U.S. District Court for the Western District of Texas described the murder as follows (citations omitted): Beginning late on the evening of October 14, 1997 and continuing into the early morning hours of October 15, 1997, petitioner bludgeoned to death his employer Glen Lich with a metal bar, then ransacked the Lich residence and repeatedly sexually assaulted Lich’s wife at knife-point.

Mrs. Lich testified at length during petitioner’s trial concerning petitioner’s activities on the night of her husband’s murder. She recounted, without contradiction by petitioner or any other witness, that (1) she met the petitioner when he arrived at the Lich residence in July 1997 to assist a carpenter who was helping to renovate the ranch house and other buildings, (2) petitioner worked at the Lich residence for about three weeks, (3) months later, around the beginning of October, 1997, petitioner telephoned her husband and negotiated an arrangement in which petitioner received room and board at the Lich residence in exchange for assisting Mr. Lich and others who were continuing the renovations, (4) on October 14, 1997, after petitioner had been staying at the Lich residence for about ten days, petitioner knocked on the door of the Lich bedroom around ten p.m. and Glen Lich went outside to talk with petitioner, (5) not long thereafter, Mrs. Lich looked up from reading the paper and saw petitioner on the porch outside the bedroom, (6) petitioner opened the door and entered the bedroom, covered in blood and holding a knife in his hand, (7) petitioner approached Mrs. Lich, held the knife to her neck, tore off her glasses, pulled off her clothes, and forced her on to the bed, (8) petitioner undressed himself and proceeded to have non-consensual […] intercourse with Mrs. Lich while holding the knife to her neck, […] (9) Mrs. Lich, who speaks very little Spanish tried to communicate with petitioner while she was being sexually assaulted but was only able to understand a few words petitioner spoke in English, (10) when she asked about her husband, petitioner responded in English with phrases such as “five hours,” “Laredo,” “five thousand dollars,” “ten thousand dollars,” and “my brother,” and in Spanish with “fifteen thousand dollars, then your husband will be back,” (11) after twice sexually assaulting Mrs. Lich, petitioner escorted her to the bathroom where he held her at knife point […], (12) petitioner then took her back to the bedroom, where he wrote down the numbers “10,000” and “15,000” on a piece of paper, (13) petitioner placed or attempted to place several telephone calls, finally reaching someone with whom petitioner had an angry conversation in Spanish, (14) petitioner then tore a towel into strips and tied Mrs. Lich […] to the bed and covered her face with a blanket, (15) Mrs. Lich was nonetheless able to see out of a corner of the blanket and witnessed petitioner ransacking the bedroom, placing jewelry and other items in a plastic bag, (16) in Spanish, petitioner threatened Mrs. Lich’s elderly mother, who was asleep nearby in a separate bedroom, (17) petitioner removed the blanket from Mrs. Lich and asked for the keys to the Lich’s Jeep, (18) Mrs. Lich nodded in the direction of the keys, (19) petitioner went outside and started the Jeep but, after a few minutes, turned off the engine, came back inside, and tied Mrs. Lich […] even more securely to the bed with wires, (20) petitioner made a second series of telephone calls, after which he yanked all the phones in the room off the hook, (21) then, petitioner went outside for a period of time, (22) petitioner came back inside, rummaged throughout the bedroom again, then untied Mrs. Lich and raped her at least two more times at knife point, (23) during the second series of sexual assaults, petitioner wore Glen Lich’s watch, Mrs. Lich’s grandmother’s wedding ring, and several of Mrs. Lich’s necklaces, (24) when Mrs. Lich asked petitioner about her husband, petitioner replied “two hours Laredo,” asked her if she wanted to live longer, instructed her not to call the police, and indicated she would see her husband again if she gave petitioner the money he had demanded, (25) petitioner threatened Mrs. Lich’s elderly mother and Mrs. Lich’s daughter, the latter by name, and (26) at one point, petitioner gestured with a syringe motion and said it was “okay with me.”

Lera Lich survived petitioner’s repeated sexual assaults and, when petitioner fell asleep following the second wave of such assaults, slipped out of his grasp and made her way to a neighboring residence in rural Kerr County. When sheriff’s deputies arrived at the Lich residence, they found petitioner sound asleep on the bed. When the sheriff’s deputies woke petitioner, he violently resisted arrest but was eventually subdued and arrested. Shortly after petitioner’s arrest, Kerr County Sheriff’s personnel took Lera Lich to the hospital, where a sexual assault kit was collected. Law enforcement officials searched the Lich residence and found Glen Lich’s body near a generator building. His skull had been battered beyond recognition.

On the morning of October 15, 1997, after having been given his Miranda warnings in Spanish, petitioner gave an audiotape recorded statement in Spanish to law enforcement officials in which he identified himself as “Reuben Salinas.” On the afternoon of the same day, when confronted again by law enforcement officers and given a second set of Miranda warnings in Spanish, petitioner admitted his name was Ramiro Hernandez and gave a second audiotape recorded statement in Spanish. As he had in his first statement, in his second statement, petitioner admitted he had struck Glen Lich “once” with a metal bar but, in his second statement, petitioner admitted for the first time that he had sexually assaulted Mrs. Lich “once.” Both of petitioner’s recorded statements and English translations of same were admitted into evidence during his examining trial but neither statement nor any transcription of same was offered or admitted into evidence during petitioner’s subsequent capital murder trial.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment. The State presented evidence that Hernandez was previously convicted of murder in Mexico and escaped from prison into Texas. The State also presented testimony that Hernandez had stabbed a man in a Kerrville bar and that he sexually assaulted a 15-year-old girl.

PROCEDURAL HISTORY

In November 1997, a Kerr County grand jury indicted Hernandez for murdering Glen Lich during the course of committing or attempting to commit the offense of sexual assault of Lera Lich, and while in the course of committing or attempting to commit the offense of robbery of Lera Lich, and while in the course of committing or attempting to commit the offense of burglary of a habitation of Lera Lich with intent to commit theft and sexual assault.

A Bandera County jury found Hernandez guilty of capital murder. After the jury recommended capital punishment, the court sentenced Hernandez to death. Judgment was entered Feb. 10, 2000.

On Dec. 18, 2002, the Texas Court of Criminal Appeals rejected Hernandez’s direct appeal and affirmed his conviction and sentence.

On June 27, 2003, the U.S. Supreme Court denied certiorari.

Hernandez also sought to appeal his conviction and sentence by filing an application for a state writ of habeas corpus with the Texas Court of Criminal Appeals. On Sept. 10, 2008, the appeals court denied Hernandez’s application for state habeas relief.

On Sept. 8, 2009, Hernandez filed a subsequent writ application in state court.

On Sept. 9, 2009, Hernandez attempted to appeal his conviction and sentence in the federal district court for the Western District of Texas. He also filed a motion to stay and abate.

On Nov. 25, 2009, the Court of Criminal Appeals dismissed the second writ citing the abstention doctrine.

On Jan. 15, 2010, the federal court agreed to stay and abate federal proceedings and Hernandez returned to state court to file his third state writ application.

On March 3, 2010, the Court of Criminal Appeals dismissed this writ.

On Sept. 23, 2011, the federal district court denied the petition for federal writ of habeas corpus.

On Aug. 2, 2013, the United States Court of Appeals for the Fifth Circuit affirmed the lower court’s determination of Hernandez’s mental retardation claim and denied his request for certificate of appealability on additional issues.

On Dec. 20, 2013, Hernandez filed a petition for writ of certiorari in the United States Supreme Court. The petition is currently pending.

On March 31, 2014, the United States Supreme Court denied certiorari on Hernandez’s petition.

Texas Execution Information Center by David Carson.

Ramiro Hernandez, 44, was executed by lethal injection on 9 April 2014 in Huntsville, Texas for murdering his employer and raping his wife.

In July 1997, Glen Lich hired a carpenter to renovate his house and some other buildings on his ranch in Kerrville, about 65 miles northwest of San Antonio. The carpenter and his assistant worked on the ranch for about three weeks. Around the beginning of October, the assistant, Ramiro Hernandez, phoned Lich looking for work. Lich hired Hernandez to do additional work at his ranch in exchange for letting him live in a cabin on the property.

On 14 October, after he had stayed at the Lich home for about ten days, Hernandez, then 28, knocked on the Liches' bedroom door at about 10 p.m., stating there was a problem with the generator. According to trial testimony given by Lich's wife, Lera, Mr. Lich, 48, went outside to talk with him. A little while later, Hernandez entered the bedroom, covered in blood and holding a knife in his hand. He approached Lera, held the knife to her neck, tore off her glasses and clothing, and forced her on the bed. He then raped her while keeping the knife at her neck. While he was raping her, she asked him about her husband. She did not understand when he spoke in Spanish, but she did hear him say in English, "fifteen thousand dollars, then your husband will be back." He also said the words "five hours," "my brother," and "Laredo."

After raping Lera twice, Hernandez escorted her to the bathroom at knifepoint. He then took her back to the bedroom. He wrote down the numbers 10,000 and 15,000 on a piece of paper. He then made several attempts at calling someone on the telephone. He finally reached someone, with whom he had an angry conversation in Spanish. Next, he tore a towel intro strips, tied Lera to the bed, and covered her face with a blanket. Peeking under the blanket, she could see Hernandez ransacking the bedroom, placing jewelry and other items into a plastic bag. He also threatened Lera's elderly mother, who was asleeep nearby in a separate bedroom, in Spanish. Next, he removed the blanket and asked Lera for the keys to her and her husband's Jeep. She nodded in the direction of the keys. He took them and went outside.

Hernandez started the Jeep, but after a few minutes, he turned off the engine and came back inside. Using wires, he tied Lera more securely to the bed. He made a second series of telephone calls, after which he yanked the cords out of all of the phones in the room. He went outside for a while, came back inside, and rummaged through the bedroom again. He then untied Lera and raped her at least two more times at knife point. She noticed that during this series of assaults, he was wearing several of her necklaces, her husband's watch, and her grandmother's wedding ring. When she asked him about her husband, he replied "two hours Laredo." He said that she would see her husband again if she gave him the money he demanded and if she wanted to live longer, she was not to call the police. He again threatened Lera's mother and also said the name of the Liches' daughter, threatening her. He also made a hand motion mimicking the injection of a syringe into his arm - an apparent reference to lethal injection - and said, "okay by me."

At some point, Hernandez fell asleep. Lera then slipped out and made her way to a neighbor's house. Sheriff's deputies found Hernandez asleep on the Liches' bed. He was arrested after a struggle. Glen Lich's body was found near a generator building on his property, about 60 feet from the house. His skull had been battered beyond recognition.

In an audiotaped statement, Hernandez admitted striking Mr. Lich "once" with a piece of steel rebar. He also admitted raping Mrs. Lich "once."

Lera Lich gave the above account of the crime at Hernandez's trial, which was moved from Kerr County to Bandera County. In addition, Hernandez's cousin testified that, two weeks before the murder, Hernandez said he was angry with the Liches and wanted to hurt them. He told the cousin that the Liches owned a vehicle that could be sold in Mexico.

Hernandez, also known as Ramiro Hernandez-Llanas, had a previous conviction for a 1989 bludgeoning murder in his hometown of Neuvo Laredo, Mexico. He was serving a 25-year prison sentence in Mexico when he escaped in 1996 or 1997. He then made his way to Kerrville. The state also presented evidence that Hernandez stabbed a man in a Kerrville bar and sexually assaulted a 15-year-old girl. The girl testified that she knew him as the brother of her friend. She accepted a ride from him, then he sexually assaulted her and threatened to kill her and her mother if she told anyone. While in jail awaiting his capital murder trial, Hernandez assaulted a jailer in the face with a shank when he didn't get eggs for breakfast. He was convicted of an aggravated assault with a deadly weapon and was given a 40-year sentence for that offense.

A jury found Hernandez guilty of capital murder in February 2000 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in December 2002.

In their appeals, Hernandez's lawyers raised claims that he was mentally retarded, that, as a citizen of Mexico, he was denied his consular rights, and that his execution with compounded pentobarbital could constitute cruel and unusual punishment. An evidentiary hearing was held on his retardation claim in 2006; the court found he was not retarded. In 2008, the U.S. Supreme Court sided with the state of Texas on the consular rights issue. And, the week before his execution, the U.S. Fifth Circuit Court of Appeals overturned a district judge's order halting Hernandez's execution on the pentobarbital claim.

The Liches' son attended Hernandez's execution. Hernandez's witnesses included a brother, a sister, and two friends. He raised his head from the gurney three times and blew kisses toward them. "I'm happy," Hernandez said in Spanish. "I am sorry for what I have done. ... I say this with a lot of love and happiness: I have no pain and no guilt. All I have is love." Hernandez's last statement lasted nearly five minutes. The lethal injection was then started. He was pronounced dead at 6:28 p.m.

Houston Chronicle

"Mexican national executed for 1997 Texas slaying," by Michael Graczyk. (AP April 9, 2014)

HUNTSVILLE, Texas (AP) — A man who escaped prison in his native Mexico while serving a murder sentence was executed in Texas on Wednesday for fatally beating a former Baylor University history professor and attacking his wife more than 16 years ago. Ramiro Hernandez-Llanas, 44, was lethally injected in the state's death chamber in Huntsville.

He was in the U.S. illegally when he was arrested for the October 1997 slaying of 49-year-old Glen Lich. Just 10 days earlier, Lich had given Hernandez-Llanas a job helping with renovations at his ranch near Kerrville, about 65 miles northwest of San Antonio, in exchange for living quarters.

Investigators said Hernandez-Llanas lured Lich from his house by telling him that there was a problem with a generator, then repeatedly clubbed him with a piece of steel rebar. Armed with a knife, he then attacked Lich's wife. She survived and testified against Hernandez-Llanas, who also had been linked to a rape and a stabbing. Strapped to a gurney inside the death chamber, Hernandez-Llanas asked for forgiveness. He also said he was at peace and thankful for being able to see relatives, and he urged them not to be sad.

"I'm happy... I am sorry for what I have done," he said, speaking in Spanish during a nearly five-minute final statement. "I'm looking at the angel of God."

ProDeathPenalty.Com

Ramiro Hernandez was sentenced to death for murdering author and former Schreiner College and Baylor University history professor Glen H. Lich on October 14, 1997 at his South Kerr County ranch. Hernandez had worked as a laborer on the ranch, assisting a carpenter with a renovation of the ranch house. After a short time, Hernandez was given free boarding at the ranch in exchange for his work.

Hernandez’s cousin testified that, two weeks before the murder and while speaking with Hernandez, Hernandez said he was angry with the Liches and wanted to hurt them and also told his cousin that the Liches owned a vehicle that could be sold in Mexico. The murder victim’s wife, Lera Lich, described the events that occurred on the day of the murder.

He then held the knife to Mrs. Lich's throat, took off her glasses and clothing, forced her onto the bed and raped her twice. When she asked about her husband, Hernandez told her that she would see Glen again if she gave Hernandez money. He made several phone calls, then bound Mrs. Lich by her hands and ankles to the bedposts with torn strips of towels, covered her head with a blanket, and proceeded to ransack the bedroom for jewelry and other valuables. Afterwards, he removed the blanket and insisted on obtaining the keys to the Liches’ vehicle. With Mrs. Lich still securely bound, he went outside, started the vehicle, and then turned it off. He returned, used wire to tighten Mrs. Lich’s fastens, and used the telephone again before yanking out the phones.

He then untied Mrs. Lich, raped her twice again, wearing her dead husband's watch and other items of jewelry he had found in the bedroom. Hernandez threatened that he would harm Mrs. Lich's sleeping mother in the adjoining room if Mrs. Lich called the police, and also threatened to hurt her daughter. He then wrapped his arms around her and appeared to fall asleep. Mrs. Lich was able to slip out of his grasp and escaped, running to a neighbor's house to call police. Hernandez was still asleep when police arrived and violently resisted but was eventually restrained and arrested.

Initially, Hernandez provided a false name. Hernandez eventually admitted to a down-played version of the events that night. During the trial, medical testimony was presented that depicted that Glen Lich was beaten and killed with a metal rebar beyond recognition.

At the punishment phase of the trial, jurors heard testimony that Hernandez raped a 15-year-old Kerrville girl in 1997, less than a year after escaping a 25-year prison sentence in his hometown of Nuevo Laredo, Mexico for a 1989 murder there. Another witness testified that she saw Hernandez stab an individual in an encounter in a bar that occurred prior to the Lich crime. That witness’s spouse was initially arrested for the stabbing but was subsequently released from custody after Hernandez took responsibility and later pled guilty to the stabbing. He spent four years in prison for an aggravated assault with a deadly weapon conviction.

While in prison awaiting trial for the murder of Glen, Ramiro stabbed and killed a female jailer and slashed another inmate's face with a razor blade. In prison, he was found with homemade weapons. The jurors took just five minutes to convict Hernandez, and subsequently sentenced him to death. UPDATE: In a final statement, Hernandez asked forgiveness from the victim's family and said he was at peace. Lich's son witnessed the execution and declined to speak with reporters afterward.

Daily Mail Online

'I have no pain and no guilt. All I have is love'
Mexican national executed for 1997 beating death of Texas man
Ramiro Hernandez-Llanas beat 49-year-old Glen Lich with a piece of steel rebar repeatedly
Lich had given Hernandez-Llanas a job at his ranch in exchange for free accommodations
Hernandez-Llanas was in the U.S. illegally and escaped from a Mexican prison
Seving time for a murder conviction
He is the sixth person executed in Texas this year

By Associated Press (22:40 EST, 9 April 2014)

A Mexican national who fatally beat a former Baylor University history professor in 1997 was executed Wednesday night in Texas. Ramiro Hernandez-Llanas, 44, was lethally injected in the state's death chamber in Huntsville.

In October 1997, while he was in the U.S. illegally, Hernandez-Llanas led 49-year-old Glen Lich from his house by telling him that there was a problem with a generator, then repeatedly clubbed him with a piece of steel rebar. Armed with a knife, he then attacked Lich's wife. She survived and testified against Hernandez-Llanas, who also had been linked to a rape and a stabbing.

Ramiro Hernandez-Llanas was executed by lethal injection Wednesday evening in Texas for the 1997 fatal beating a former Baylor University history professor. Ramiro Hernandez-Llanas was executed by lethal injection Wednesday evening in Texas for the 1997 fatal beating a former Baylor University history professor. Just 10 days before the murder, Lich had given Hernandez-Llanas a job helping with renovations at his ranch near Kerrville, about 65 miles northwest of San Antonio, in exchange for living quarters.

Strapped to a gurney inside the death chamber, Hernandez-Llanas asked for forgiveness. 'I'm happy... I am sorry for what I have done,' he said, speaking in Spanish during a nearly five-minute final statement. 'I'm looking at the angel of God.' He blew kisses to family members and also thanked prison officers and the warden.'I say this with a lot of love and happiness: I have no pain and no guilt. All I have is love,' he said. As the lethal concoction took effect, he snored loudly twice, then appeared to go to sleep. He was pronounced dead 11 minutes later, at 6:28 p.m.

Hernandez-Llanas was the second Texas inmate to receive a lethal injection of a new supply of pentobarbital. Texas Department of Criminal Justice officials have refused to identify the source of the powerful sedative, contending secrecy is needed to protect the drug's provider from threats of violence from capital punishment opponents. Texas and other states that have the death penalty have been scrambling for substitute drugs or new sources for drugs for lethal injections after major drugmakers — many based in Europe with longtime opposition to the death penalty — stopped selling to prisons and corrections departments. Hernandez-Llanas' appeals were exhausted, and the Texas parole board on Tuesday refused to delay his death sentence or commute it to life in prison.

The injection gurney in the execution chamber at the Walls Unit prison in Huntsville, Texas where Ramiro Hernandez-Llanas was executed Wednesday evening. The injection gurney in the execution chamber at the Walls Unit prison in Huntsville, Texas where Ramiro Hernandez-Llanas was executed Wednesday evening.

On Wednesday, the Mexican government's Ministry of Foreign Affairs released a statement condemning the execution. 'This is the fourth case of a Mexican being executed in clear violation of the judgment of the International Court of Justice,' the ministry said. 'The Government of Mexico expresses its most vigorous protest at the failure to comply.'

Hernandez-Llanas was in Texas after escaping from a Mexican prison, where he was serving a 25-year sentence for a 1989 bludgeoning murder in Nuevo Laredo. He was linked to the rape of a 15-year-old girl and a stabbing in Kerrville. While awaiting trial, evidence showed he slashed another inmate's face with a razor blade. In prison, he was found with homemade weapons.

'This is exactly why we have the death penalty,' Lucy Wilke, an assistant Kerr County district attorney who helped prosecute Hernandez-Llanas, said ahead of the execution. 'Nobody, even prison guards, is safe from him.' Hernandez-Llanas was the sixth prisoner executed this year in Texas, the nation's busiest death penalty state.

Mexico Gulf Reporter

"Texas executes Ramiro Hernández Llanas, over protests; U.S. death penalty litigation tracks a new course - now it's all about the chemicals used." (Wednesday, April 9, 2014)

Guadalajara - For the second time this year the state of Texas has executed a Mexican national in its Huntsville death chamber, despite protests from this country, Amnesty International and other organizations. Ramiro Hernández Llanas, 44, was pronounced dead shortly after 6:00 p.m., the appointed hour for executions in Texas.

Hernández, who spent almost 15 years on death row, was convicted of the Oct. 15, 1997 murder of a rancher in Kerr County, in the Texas Hill Country, where he worked as a hired hand. After bludgeoning 49 year old Glen Lich to death with a steel bar, Hernández repeatedly raped the wife of the former Baylor University history professor. Community opinion on the case ran so high that the defense applied for and received a change of venue to another county. But it made no difference. During the sentencing phase of the case, the jury deliberated only minutes before returning a verdict which set execution as the penalty.

On Mar. 31 the U.S. Supreme Court refused to consider Hernández' final appeal, based on his low level of intellectual functioning. His attorneys told the court that his I.Q. was 70. But two days later a federal judge in Texas granted Hernández a stay of execution, based upon legal issues surrounding the state's lethal injection protocol. In recent months Texas and other states with capital punishment have found it increasingly difficult to procure the necessary pharmaceuticals. Many U.S. manufacturers no long offer the products once used, and member states of the European Union forbid the sale of chemicals intended for executions, particularly to American buyers. Texas and other jurisdictions have been forced to turn to small U.S. suppliers, generally refusing to identify them because of alleged security concerns. The Texas judge ruled on Apr. 2 that Hernández' execution could not be carried out until the state provided full particulars of its protocol and identified the pharmaceutical provider. But on Apr. 7 the U.S. Court of Appeals for the Fifth Circuit, based in New Orleans, vacated those orders and gave the Texas Dept. of Corrections permission to proceed. The same day the Texas Board of Pardons and Paroles voted unanimously not to recommend clemency, a prerequisite before the governor could have commuted Hernández' sentence. Mexican Human Rights Comm'n. gearing up for next Texas execution.

Texas told the Fifth Circuit judges that pentobarbital was one of the drugs which would be used, and that it had acquired its stock from an established U.S. compounding pharmacy. The court ruled that TDOC did not have to identify the supplier. Pentobarbital is sometimes sold under the brand name Nembutal, manufactured and trademarked by the Danish pharmaceutical company Lundbeck. Lundbeck specifically prohibits the sale of Nembutal to prisons or corrections departments for the purpose of executions. U.S. courts have approved use of the generic chemical in death penalty cases, however. Hernández' attorneys did not appeal the Fifth Circuit ruling to the U.S. Supreme Court, which typically would have been the final step. Last week the high court justices rejected the appeal of another Texas inmate which presented identical lethal injection protocol issues. He was executed Apr. 3.

On Jan. 22 former Morelos resident Édgar Tamayo Arias was put to death in Huntsville for the 1994 murder of a Houston police officer. That case attracted great attention in this country because of a 2004 International Court of Justice (ICJ) decision which said that 51 Mexicans under death sentence in American state courts had been convicted in violation of consular assistance guarantees under the Vienna Convention on Consular Relations (VCCR), a decades old treaty signed by Mexico, the United States and dozens of other nations. But in a 2008 opinion the U.S. Supreme Court ruled that the ICJ decree was not binding on state courts, which follow their own rules of criminal procedure. Congress has never implemented the ICJ decree by passing enabling legislation which would compel states to abide by it. Mexican's approaching date with Texas death chamber poses international risks for U.S.. Although Hernández was on death row when the ICJ delivered its 2004 ruling, the principal issue in his litigation was mental status. His impending execution attracted attention in this county, but far less than in Tamayo's case two months ago. The question of whether Hernández received prompt assistance from Mexican consular officials remains in dispute.

Hernández was born and raised in the border state of Tamaulipas, where drug war violence is daily fare. He entered the U.S. illegally and had a record of prior offenses. His 75 year old mother and siblings arrived to see him for the last time this morning. "Ramiro is ready to come home," a sister said.

CBSNews

"Texas executes Mexican national for 1997 murder." (AP April 10, 2014, 10:55 AM)

HUNTSVILLE, Texas - A man who escaped prison in his native Mexico while serving a murder sentence was executed in Texas on Wednesday for fatally beating a former Baylor University history professor and attacking his wife more than 16 years ago. Ramiro Hernandez-Llanas, 44, was lethally injected in the state's death chamber in Huntsville.

He was in the U.S. illegally when he was arrested for the October 1997 slaying of 49-year-old Glen Lich. Just 10 days earlier, Lich had given Hernandez-Llanas a job helping with renovations at his ranch near Kerrville, about 65 miles northwest of San Antonio, in exchange for living quarters. Investigators said Hernandez-Llanas lured Lich from his house by telling him that there was a problem with a generator, then repeatedly clubbed him with a piece of steel rebar. Armed with a knife, he then attacked Lich's wife. She survived and testified against Hernandez-Llanas, who also had been linked to a rape and a stabbing.

Strapped to a gurney inside the death chamber, Hernandez-Llanas asked for forgiveness. He also said he was at peace and thankful for being able to see relatives, and he urged them not to be sad. "I'm happy... I am sorry for what I have done," he said, speaking in Spanish during a nearly five-minute final statement. "I'm looking at the angel of God." He raised his head from the gurney three times and blew three loud kisses toward a brother, a sister and two friends watching through a window. He also thanked prison officers and the warden. "I say this with a lot of love and happiness: I have no pain and no guilt. All I have is love," he said. As the lethal drug took effect, he snored loudly twice, then appeared to go to sleep. Within seconds, all movement stopped. He was pronounced dead 11 minutes later, at 6:28 p.m.

Lich's son, who also witnessed the execution, declined to speak with reporters afterward.

Hernandez-Llanas was the second Texas inmate to receive a lethal injection of a new supply of pentobarbital. Texas Department of Criminal Justice officials have refused to identify the source of the powerful sedative, contending secrecy is needed to protect the drug's provider from threats of violence from capital punishment opponents. The U.S. Supreme Court backed the state's position in a related case last week. Texas and other states that have the death penalty have been scrambling for substitute drugs or new sources for drugs for lethal injections after major drugmakers - many based in Europe with longtime opposition to the death penalty - stopped selling to prisons and corrections departments. Hernandez-Llanas' appeals were exhausted, and the Texas parole board on Tuesday refused to delay his death sentence or commute it to life in prison.

He was among more than four dozen Mexican citizens awaiting execution in the U.S. when the International Court of Justice in The Hague, Netherlands, ruled in 2004 that they weren't properly advised of their consular rights when arrested. A measure mandated by the U.S. Supreme Court to enforce that ruling has languished in Congress. On Wednesday, the Mexican government's Ministry of Foreign Affairs released a statement condemning the execution. "This is the fourth case of a Mexican being executed in clear violation of the judgment of the International Court of Justice," the ministry said. "The Government of Mexico expresses its most vigorous protest at the failure to comply." But that issue never surfaced in Hernandez-Llanas' appeals, which focused primarily on claims that his mental impairment made him ineligible for the death penalty. Testimony from psychiatrists who said he was not mentally impaired and would remain a danger was faulty, his attorneys argued.

According to trial testimony, Hernandez-Llanas was arrested just hours after attacking Lich and his wife. He was sleeping in bed with his arm wrapped around the terrorized woman, who managed to wriggle from his grasp and restraints without waking him and call police. Evidence showed Hernandez-Llanas was in Texas after escaping from a Mexican prison, where he was serving a 25-year sentence for a 1989 bludgeoning murder in Nuevo Laredo. He was linked to the rape of a 15-year-old girl and a stabbing in Kerrville. While awaiting trial, evidence showed he slashed another inmate's face with a razor blade. In prison, he was found with homemade weapons.

"This is exactly why we have the death penalty," Lucy Wilke, an assistant Kerr County district attorney who helped prosecute Hernandez-Llanas, said ahead of the execution. "Nobody, even prison guards, is safe from him." Hernandez-Llanas was the sixth prisoner executed this year in Texas, the nation's busiest death penalty state.

Ex parte Hernandez, Not Reported in S.W.3d, 2006 WL 1174311 (Tex. Crim. App. 2006). (State Habeas)

PER CURIAM.

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.071, Tex.Code Crim. Proc.

On February 10, 2000, applicant was convicted of the offense of capital murder. The jury answered the special issues submitted pursuant to Article 37.071, Tex.Code Crim. Proc., and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Hernandez v. State, No. 73,776 (Tex.Crim.App.2002) (not designated for publication).

In his application, applicant presents thirty-seven allegations challenging the validity of his conviction and resulting sentence. In his twelfth allegation, applicant claims that his death sentence violates the U.S. Constitution because he is mentally retarded, citing Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The trial court made findings of fact and conclusions of law recommending that the application be denied. However, the trial court did not hold a live hearing to consider the testimony regarding the mental retardation issue. In this case, we find that a live hearing is necessary because both applicant and the State rely heavily upon affidavits filed by experts and other persons who did not testify at trial and hence have not been subject to cross-examination. Thus, this cause is remanded to the trial court for a live hearing so that the parties can present evidence regarding the mental retardation issue.

Because this Court does not hear evidence, Ex parte Rodriguez, 169 Tex.Crim. 367, 334 S.W.2d 294 (Tex.Crim.App.1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 90 days of the date of this order.FN1 A supplemental transcript containing the transcription of the court reporter's notes from the hearing and the trial court's findings of fact and conclusions of law shall be returned to this Court within 120 days of the date of this order.FN2

FN1. In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court. FN2. Any extensions of this time period should be obtained from this Court.

IT IS SO ORDERED THIS THE 3RD DAY OF MAY, 2006. Judge HERVEY not participating.

Hernandez v. Stephens, 537 Fed.Appx. 531 (Tex. Crim. App. 2013). (Habeas)

Background: Following affirmance of his conviction in state court for capital murder, petitioner filed petition for federal habeas relief, which was based in part on claim that he was mentally retarded. The United States District Court for the Western District of Texas, Xavier Rodriguez, J., 2011 WL 4437091, denied petition. The same court, Rodriguez, J., 2012 WL 394597, subsequently denied petitioner's motion to alter or amend judgment. Petitioner appealed, and requested to expand certificate of appealability.

Holdings: The Court of Appeals held that: (1) state court's finding that petitioner was not mentally retarded was not unreasonable application of clearly established federal law; (2) state court could consider more than petitioner's IQ in determining whether he was mentally retarded; (3) certificate of appealability would not be granted with respect to ineffective assistance claim; (4) certificate of appealability would not be granted with respect to conflict-free counsel claim; and (5) certificate of appealability would not be granted with respect to claim based on admission of prior conviction. Affirmed.

Before SOUTHWICK, HAYNES, and HIGGINSON, Circuit Judges. PER CURIAM:

A Texas state court jury convicted Ramiro Hernandez of capital murder. He was sentenced to death. A federal district court denied his application for habeas relief, which was based in part on the claim that he is mentally retarded.FN1 Hernandez was granted a certificate of appealability on that claim, and he also seeks to expand the certificate for three other claims. We AFFIRM the denial of his application and DENY his request to expand the certificate.

FN1. The American Psychiatric Association's fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM–5), uses the term “intellectual disability (intellectual developmental disorder)” in place of the term “mental retardation” and de-emphasizes IQ scores as determinants of this condition. We are bound by the United States Supreme Court precedent on the legal issue, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). This court's changing terminology on its own serves little purpose other than to create ambiguity.

PROCEDURAL HISTORY

In 2000, Hernandez was convicted in Texas state court of murdering his employer, Glen Lich. The jury decided that his sentence should be death. In an unpublished opinion, the Texas Court of Criminal Appeals affirmed both his conviction and sentence on direct appeal. Hernandez v. State, No. 73,776 (Tex.Crim.App. Dec. 18, 2002). Hernandez then sought habeas relief from the state district court, alleging in part that he was mentally retarded and his execution would violate the Eighth Amendment. After an evidentiary hearing ordered by the Texas Court of Criminal Appeals, the state district court, on May 20, 2008, determined that Hernandez was not mentally retarded. The Court of Criminal Appeals adopted the district court's findings of fact and conclusions of law and denied Hernandez any relief. Ex parte Hernandez, No. WR–63282–01, 2008 WL 4151813, at *1 (Tex.Crim.App. Sept. 10, 2008).

In United States district court, Hernandez applied for relief under 28 U.S.C. § 2254. On January 15, 2010, the court stayed the suit to permit exhaustion of state remedies on all unexhausted claims. Hernandez returned to state court and filed his third application for relief, claiming he was denied the right to conflict-free counsel. The Court of Criminal Appeals dismissed his application as an abuse of the writ. Ex parte Hernandez, No. WR–63282–03, 2010 WL 1240353, at *1 (Tex.Crim.App. Mar. 31, 2010).

Returning to federal court, Hernandez claimed that (1) because he suffered from mental retardation, his execution would be unconstitutional; (2) he received ineffective assistance of counsel because of a failure to investigate and present mitigating evidence; (3) his counsel operated under a conflict of interest; and (4) the trial court's admission of documents that detailed a conviction of murder and escape from custody in Mexico was error because the criminal justice system in Mexico did not afford the same rights as were provided in the United States. In a thorough opinion, the district court denied Hernandez's application, granted a certificate of appealability on his mental retardation claim, and denied a certificate of appealability on all other claims. Hernandez v. Thaler, No. SA08–CA–805–XR, 2011 WL 4437091, at *59 (W.D.Tex. Sept. 23, 2011). Hernandez appeals the denial of his retardation claim and also seeks a certificate of appealability on his three other claims.

DISCUSSION
A. Atkins Claim of Mental Retardation

A federal court may grant an application under Section 2254 if the state court's adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A different standard applies to the review of a state court's factual findings, which we will identify and discuss later. The district court denied habeas relief after reviewing the state-court records. On appeal, we conduct an independent review and apply the same Section 2254 standards to the state court's decision as did the federal district court. See Chester v. Thaler, 666 F.3d 340, 343–50 (5th Cir.2011). The Eighth Amendment prohibits the execution of a criminal offender who is mentally retarded. Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The states are left with “the task of developing appropriate ways to enforce the constitutional restriction.” Id. at 317, 122 S.Ct. 2242.

Post- Atkins, the Texas Court of Criminal Appeals defined mental retardation as containing three elements: “(1) significantly subaverage general intellectual functioning; (2) accompanied by related limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18.” Ex parte Briseno, 135 S.W.3d 1, 7 (Tex.Crim.App.2004) (citations and quotation marks omitted). The court required “significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.” Id. An IQ of about 70 or below was said to be “significantly subaverage.” Id. at 7 n. 24. An applicant bears the burden of proving his mental retardation by a preponderance of the evidence. Id. at 12. Failure to satisfy even one of the three elements of the Briseno definition results in the denial of the claim. Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir.2006).

The Court of Criminal Appeals has listed specific evidentiary factors which may be relevant to the analysis of mental retardation. Briseno, 135 S.W.3d at 8–9.FN1 We have held that the Briseno definition and evidentiary factors are not an “unreasonable application” of the Supreme Court's Atkins opinion, and neither are the factors “contrary to” clearly established federal law. Chester, 666 F.3d at 347–48. Citing Chester, Hernandez acknowledges that he does not, indeed cannot, challenge in this court the consistency of the Briseno factors with Atkins. He does argue, though, that after the state district court cited Briseno, it never listed all the factors when considering his habeas petition. His argument is that even though Texas has developed a constitutionally adequate analysis to apply to Atkins claims, the state district court unreasonably applied Atkins because the court did not fully use the evidentiary factors. Instead, Hernandez claims that the court's consideration of the factors was “one-sided,” discussing only those that undermined the claim of retardation. The Court of Criminal Appeals adopted the state district court's factual findings and legal conclusions, so the alleged defect would apply to the appellate decision as well.

FN1. The evidentiary factors listed in Briseno are these: Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was mentally retarded at that time, and, if so, act in accordance with that determination? [2] Has the person formulated plans and carried them through or is his conduct impulsive? [3] Does his conduct show leadership or does it show that he is led around by others? [4] Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? [5]Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject? [6]Can the person hide facts or lie effectively in his own or others' interests? [7]Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose? Briseno, 135 S.W.3d at 8–9.

This argument, though, is better understood as a challenge to the state district court's consideration of the facts, such as by allegedly examining only part of the evidence. We will consider the completeness of the state district court's application of Briseno to the facts in our discussion of the evidence. We conclude now that the state district court decision was neither contrary to nor involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.

Hernandez also argues that the state court's decision on the merits of his mental retardation claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Because the Texas Court of Criminal Appeals denied Hernandez's habeas application by adopting the state district court's findings and conclusions, we review the state district court's decision. See Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir.1998). We review the state court's ultimate conclusions, not the state court's opinion that explains its decision. Maldonado v. Thaler, 625 F.3d 229, 239 (5th Cir.2010).

The court will presume that the state district court's findings of fact are correct; the applicant has the burden to rebut that presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The relevant opinion by the state district court was on May 20, 2008. The court entitled its decision as “Supplemental Findings of Fact and Conclusions of Law,” and it attached as additional, re-adopted findings the court's decision of March 7, 2006, when it initially considered the Atkins claim. The court found that Hernandez “was not mentally retarded because the evidence failed to show [he] had a significantly subaverage general intellectual functioning.” This finding of fact is entitled to the Section 2254(e)(1) presumption of correctness. We examine the evidence the state court had before it.

At a state court hearing, Dr. Gilbert Martinez, a licensed psychologist, testified that he personally performed neuropsychological evaluations on Hernandez before the punishment phase of the trial in 2000 at a detention facility in Kerr County, Texas, in order to explore Hernandez's cognitive and mental functioning. Dr. Martinez administered a nonverbal portion of the third edition of the Wechsler Adult Intelligence Scale (“WAIS–III”),FN2 and Hernandez scored a 54. Dr. Martinez also administered the second edition of the Test of Nonverbal Intelligence (“TONI”), and Hernandez scored a 57 when scaled to American norms.

FN2. The United States Supreme Court has described this test as “the standard instrument in the United States for assessing intellectual functioning.” Atkins, 536 U.S. at 309 n. 5, 122 S.Ct. 2242.

Another licensed psychologist, Dr. Antonio Puente, evaluated Hernandez while he was incarcerated in 2003. Dr. Puente administered a comprehensive version of the TONI, and Hernandez scored a 52. In 2006, Dr. Puente administered a full-scale version of the WAIS–III, which included verbal testing, and Hernandez scored a 70 when his results were scaled to Mexican norms. Hernandez scored an 87 on the performance portion of the test and a 66 on the verbal portion. During their testimony, both psychologists referenced an additional TONI given in 1999 by a master's level psychological associate for inmate-screening purposes in the Texas Department of Criminal Justice. Hernandez scored an 83 on this test, but Dr. Puente testified that the test was outdated and not considered reliable. Neither Dr. Martinez nor Dr. Puente believed Hernandez was intentionally performing poorly on the tests, but Dr. Martinez explained that passive motivational reasons could have caused the below-average scores.

In addition to the psychological examinations, a psychiatrist named Dr. Robert Cantu evaluated Hernandez in 1998 to determine whether he was competent to stand trial. Dr. Cantu diagnosed Hernandez with schizophreniform disorder, the symptoms of which include an impaired perception of reality, but Dr. Cantu ultimately concluded Hernandez was competent to stand trial. The psychiatrist believed Hernandez was “pretending not to understand or not to know in an effort to look bad” and formed a definite opinion that he was intentionally underperforming during his evaluation.

Dr. Michael Arambula, also a practicing psychiatrist, evaluated Hernandez prior to his trial to determine his mental state at the time of the offense. The psychiatrist diagnosed Hernandez as having a mood and thought disorder as the result of drug use and a closed-head injury. The psychiatrist testified he did not see signs that Hernandez was malingering during the evaluation, explaining that a person who is malingering often will give responses that are beneficial to the case; here, Hernandez revealed he was involved in a prison gang, information Dr. Arambula pointed to as an example of what might be unhelpful if presented to a jury.

Another practicing psychiatrist, Dr. Richard Coons, who did not personally interview Hernandez, examined the medical data from the two psychologists' evaluations. Dr. Coons explained that Dr. Puente's WAIS–III examination was the only evidence of a full-scale evaluation for intelligence. After reviewing the examination data and exploring Hernandez's adaptive behavior, Dr. Coons concluded that Hernandez was not mentally retarded.

Dr. Coons was concerned with unexplained inconsistences in the tests' subscores, particularly the disparity between the performance scores of 54 and 87 between the examinations by Dr. Martinez and Dr. Puente. In addition, Dr. Coons testified that some of the tests were incorrectly administered and scored, potentially causing high-scoring results to be disregarded. He expressed concern that some testing on which Hernandez performed very well was not considered. Dr. Coons further believed that motivational variables likely played a role in the below-average scores Hernandez received from the two psychologists' examinations, but Dr. Coons did not affirmatively conclude that Hernandez was malingering on the IQ tests.

In addition to considering this evidence on intellectual functioning, the state district court considering the habeas petition also determined “there was no evidence of significant limitations in adaptive functioning” and listed adaptive-skill areas. In reaching its determinations, the state district court acknowledged the caselaw in Briseno. The first Briseno factor concerns whether those who knew Martinez in his developmental years thought he was mentally retarded. Family and acquaintances from Mexico testified that he was abused as a child and lived in dangerous conditions near a waste-disposal site. Evidence showed that Hernandez as a child had trouble following directions, frequently fell asleep, received only a third-grade education, did not interact well with other children, could not count money, and appeared to have hygiene difficulties. There was only slight testimony, though, about whether those who knew Hernandez in his youth believed he was mentally retarded at that time.FN3

FN3. Hernandez's sister first wrote a statement to the trial court that she did not believe Hernandez was “mentally retarded” but subsequently stated at the state district court's evidentiary hearing that her understanding of that term had changed. She did not disavow her factual testimony, though.

Regarding the third factor, which involves whether he is a leader or instead is easily led by others, one of Hernandez's sisters testified that he had trouble using public transportation. Yet, there was evidence that Hernandez was able to escape from police custody in Mexico and enter the United States where he subsequently gained employment on a ranch in Kerr County, Texas. Another sister explained that she lived in Texas and occasionally visited with Hernandez. She testified that Hernandez did not make much money at his employment on the ranch because he also received room and board in exchange for his services. His sister said she sometimes would take Hernandez to the grocery store, but at other times Hernandez sent others to the store for him.

As for the fourth factor regarding his ability to respond to external stimuli, testimony from Hernandez's relatives provided the state district court with some evidence of irrational responses during his childhood. One example was that Hernandez was shown how to separate different recyclable materials, but he instead placed all the recyclables together. On the other hand, Hernandez was able to request specific types of food during his incarceration because his usual fare was disagreeable.

In regard to the fifth factor, which concerns whether he responds coherently to questions, Dr. Martinez testified that Hernandez would discuss unrelated topics when asked a direct question. Even so, a Texas law-enforcement officer testified that during his post-homicide interview with Hernandez in October 1997, Hernandez received and directly responded to warnings, questions, and requests. The state district court determined that “[t]his was not consistent with the ability and conduct of a person who was mentally retarded.”

The second, sixth, and seventh factors involve the ability generally to plan and follow through, to lie or otherwise hide facts, and to use planning and complex execution in the actual capital offense. There is evidence to support a finding that Hernandez formulated a plan to murder his employer at the ranch house and carried out that plan. Hernandez's cousin testified that, two weeks before the murder and while speaking with Hernandez, Hernandez said he was angry with the Liches and wanted to hurt them. Hernandez also told his cousin that the Liches owned a vehicle that could be sold in Mexico.

The murder victim's wife, Lera Lich, described the events that occurred on the day of the murder. On the evening of October 14, 1997, the Liches were in their home when Hernandez knocked on the porch door. Mr. Lich went outside. After a short conversation, the two men walked away from the house. Then Hernandez killed Mr. Lich by bludgeoning him with a metal bar. Hernandez returned to the house and raped Mrs. Lich at knife-point. He told her that she would see Mr. Lich again if she gave Hernandez money. He bound Mrs. Lich to the bedposts, covered her head with a blanket, and proceeded to steal jewelry. Afterwards, he removed the blanket and insisted on obtaining the keys to the Liches' vehicle. With Mrs. Lich still securely bound, he went outside, started the vehicle, and then turned it off. He returned, used wire to tighten Mrs. Lich's fastens, and used the telephone. He then untied Mrs. Lich, raped her again, and threatened that he would harm her sleeping mother in the adjoining room if Mrs. Lich called the police. He then wrapped his arms around her and appeared to fall asleep. Mrs. Lich was able to break free and find help. After being arrested by police on October 15, Hernandez provided a false name.

After reviewing the evidence and making detailed findings of fact, the state district court concluded that Hernandez was not mentally retarded. The court held that (1) “the evidence failed to show that [Hernandez] had a significantly subaverage general intellectual functioning,” (2) “there was no evidence of significant limitations in adaptive functioning in any of the [enumerated] skill areas,” and (3) “there is no credible evidence that any mental retardation manifested during the developmental period.” The court apparently used proposed findings and conclusions submitted by the State. The Court of Criminal Appeals “adopt[ed] the trial court's findings and conclusions and den[ied] the [state habeas] application.”

Hernandez argues the persuasiveness of the findings are suspect because the state district judge struck through many of the suggested findings that would explicitly find specific government witnesses more credible than defense witnesses. The judge did not delete all the credibility findings. More importantly, he specifically readopted and attached as an exhibit the findings made two years earlier on these issues. In the 2006 findings, the district judge made choices about the credibility of those expert witnesses and the relevance of their evidence that continued to apply to his reasoning in 2008.

In Texas, a finding of mental retardation may be based in part on an IQ test, but the scores an individual receives “are necessarily imprecise and must be interpreted flexibly.” Clark, 457 F.3d at 444. “[A] person whose IQ tests below 70 may not be mentally retarded.” Lewis v. Thaler, 701 F.3d 783, 792 (5th Cir.2012) (quoting Briseno, 135 S.W.3d at 7 n. 24). The Court of Criminal Appeals has “indicated that a full-scale IQ score should provide the basis for any assessment of intellectual functioning.” Maldonado, 625 F.3d at 240 (citing Ex parte Hearn, 310 S.W.3d 424, 431 (Tex.Crim.App.2010)). Further, the state court may consider testimony from an expert who did not personally administer Hernandez's IQ test. See Lewis, 701 F.3d at 795. The state court may also “discount ... scores due to the incentive to malinger.” Taylor v. Quarterman, 498 F.3d 306, 308 (5th Cir.2007).

The state district court properly considered more than Hernandez's IQ in determining whether he was mentally retarded. See Lewis, 701 F.3d at 792–93. Although his IQ scores were within the range of mental retardation, other evidence undermined the precise accuracy of those scores. When scaled to Mexican norms, Hernandez scored exactly 70 on the one full-scale WAIS–III test. Other tests discussed by the state district court either did not evaluate Hernandez's verbal performance or were to be used only for screening purposes. Dr. Coons testified as to his concern about the accuracy of the IQ evaluations because of their administration, particularly pointing out that Dr. Puente did not incorporate sub-tests on which Hernandez scored highly due to the absence of comparative norms. The state district court found that Hernandez's “conversation and communication skills [we]re inconsistent with a diagnosis of mental retardation and decline[d] to find Dr. Puente's [contrary] explanations to be credible.” The court reiterated this point in its supplemental findings, noting that “the opinions offered by Dr. Puente as to adaptive behavior are not supported by the evidence”—contrasting them with the contrary opinions of Dr. Coons, which, it found, were “supported by the evidence.” Evidence further established that Hernandez's motivation to score lower could have been a factor in the test results. Further, the state district court was presented with evidence of Hernandez's adaptive functioning that, the district court found, weighed against a finding of mental retardation.FN4 See Briseno 135 S.W.3d at 8.

FN4. Although it did not refer to them as Briseno factors, the state district court made detailed findings regarding Hernandez's ability to act rationally, communicate effectively, care for himself, maintain employment, assess right from wrong, follow rules, formulate plans and carry them through, and use deception to further his own interests. The court found that the capital offense and previous offenses involved forethought and planning. It considered his sister's affidavit in which she stated that during Hernandez's childhood years, he “functioned like a person of average intelligence,” “[took] care of himself,” “bathed and dressed in clean clothes,” “had no problem managing his money,” “exhibited normal tendencies as to personal hygiene and managing his affairs,” “attended school for approximately the same length of time as she did,” and “had no problem maintaining employment.” It considered affidavits from Hernandez's trial counsel in which Attorney Pickell stated that he did not observe, in his “lengthy and intense involvement with Mr. Hernandez, the significant impairment in memory, judgment and language functioning which Dr. Martinez described”; and Attorney Garcia described Hernandez as functionally capable with average adaptive behavior.

We disagree with Hernandez that the state court neither examined all the evidence nor applied the Briseno factors fairly. The Court of Criminal Appeals adopted the state district court's findings and thereby approved the lower court's credibility choices—some explicit, some implicit—and weighing of the evidence. Though there were significant factual questions about Hernandez's possible mental retardation, Hernandez has not rebutted the presumption of correctness given to the findings by clear and convincing evidence. We cannot conclude that the state court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d)(2). There was no error in the district court's denial of Hernandez's Atkins claim based on the finding that he was not mentally retarded. FN5. Because of this conclusion, we need not address the arguments as to whether the onset of Hernandez's alleged mental retardation occurred prior to the age of 18.

B. Motion to Expand the Certificate of Appealability

Hernandez received a certificate of appealability only on his Atkins claim. He seeks a certificate on his other claims, which requires that he make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Hernandez must demonstrate “that reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotation marks omitted). We examine each of his remaining claims using this standard.

1. Ineffective Assistance of Counsel

Hernandez first argues he received ineffective assistance of counsel because his attorneys failed to investigate and present mitigating evidence of Hernandez's childhood during the penalty phase of trial. To show he was deprived of the right to effective assistance of counsel, Hernandez had to prove (1) his “counsel's performance was deficient,” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficiency may exist if counsel failed “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). The issue is “whether the investigation supporting counsel's decision not to introduce mitigating evidence of the defendant's background was itself reasonable.” Clark v. Thaler, 673 F.3d 410, 418–19 (5th Cir.), cert. denied, ––– U.S. ––––, 133 S.Ct. 179, 184 L.Ed.2d 90 (2012). Even if Hernandez showed deficient performance, he was also required to prove “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

The state court denied habeas relief on Hernandez's claim that he received ineffective assistance of counsel because of a “failure to properly investigate and present the defenses in the case, as alleged in the Petition.” Consequently, a federal court may not grant habeas relief unless the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law,” or the decision “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). When we apply the standards of both Strickland and Section 2254(d) together, our “question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington v. Richter, –––U.S. ––––, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). As an initial matter, Hernandez fails to show how the state court's decision was contrary to federal law or involved an unreasonable application of it. The state court determined, “The applicant was not denied effective assistance of counsel ... based on the alleged failure of counsel to conduct meaningful mitigation investigation, as the evidence indicates there was a reasonable investigation conducted.” That is the correct inquiry. Clark, 673 F.3d at 418–19.

Evidence presented to the state district court revealed that Hernandez was personally interviewed by three doctors who learned about his history, including his abusive and deprived childhood. All three experts testified at trial and presented evidence of their evaluations to the jury. Evidence also showed that counsel employed someone to travel to Mexico and interview Hernandez's mother and two siblings, each of whom provided written declarations. The interviews revealed detailed information about Hernandez's violent childhood circumstances and behavioral abnormalities. His brother stated that Hernandez's counsel never contacted him before trial. His mother declared she did not remember whether counsel called her before the trial began. Yet, Hernandez's sister said counsel spoke with her before trial about whether she could provide information that would help Hernandez, and counsel sought to have Hernandez's mother attend the trial.

Counsel filed an affidavit with the court and explained that both Hernandez's sister and mother refused to attend the trial. Further, counsel did not believe it was in Hernandez's best interest to call his second sister as a witness because she both refused and provided uncomplimentary statements about Hernandez in a previous interview. Counsel's strategy was to use experts to explain Hernandez's behavior instead of excuse it. Accordingly, we cannot conclude that jurists of reason would debate whether there was a “reasonable argument that counsel satisfied Strickland's deferential standard.” Richter, 131 S.Ct. at 788. There is a reasonable argument that Strickland was satisfied, and Hernandez has failed to make the requisite showing for a certificate of appealability under 28 U.S.C. § 2253(c)(2).

2. Conflict–Free Counsel

Hernandez next argues he was deprived of his right to conflict-free counsel because of his counsel's prior representation of a client whose spouse testified at trial. Hernandez first raised this issue in his third state-habeas petition, which the Texas Court of Criminal Appeals dismissed as an abuse of the writ. The federal district court held that this state procedural default barred his claim, and the court alternatively denied the claim on its merits. Hernandez must show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling” and “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack, 529 U.S. at 478, 120 S.Ct. 1595.

A federal court is barred from reviewing a procedurally defaulted claim unless there is “cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).FN6 Hernandez argues that his state-habeas counsel's performance caused the procedural default. In Coleman, the Court held that such error “cannot constitute cause to excuse the default in federal habeas” proceedings. Id. at 757, 111 S.Ct. 2546. The Court has recognized an equitable exception to this rule in cases in which the inmate was legally barred from raising ineffective assistance claims on direct appeal from his state conviction, and counsel was ineffective in the initial state-habeas proceeding. Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 1315, 1320, 182 L.Ed.2d 272 (2012). The Court recently held that the Martinez exception is applicable to Texas inmates who had little practical opportunity to raise ineffective assistance claims on direct appeal, despite not being legally barred from doing so. Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 1921, 185 L.Ed.2d 1044 (2013) (overruling Ibarra v. Thaler, 687 F.3d 222 (5th Cir.2012)).

FN6. Hernandez may also “demonstrate that failure to consider the claims [would] result in a fundamental miscarriage of justice,” id., but he forfeited this argument in the district court and on appeal.

Even after this clarification of Martinez, Hernandez's claim fails because he has not shown any actual prejudice to excuse the procedural default. To show “actual prejudice,” a petitioner “must establish not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir.2008); see Barrientes v. Johnson, 221 F.3d 741, 769 (5th Cir.2000). A witness testified that she saw Hernandez stab an individual in an encounter that occurred prior to the crime for which Hernandez was being tried. That witness's spouse was initially arrested for the stabbing but was subsequently released from custody after Hernandez took responsibility and later pled guilty to the stabbing. One of Hernandez's attorneys in his capital murder case previously represented the witness's spouse. Thus, Hernandez argues this former representation prevented his counsel from aggressively challenging the witness's testimony in the capital murder trial.

To prove a Sixth Amendment violation, Hernandez would be required to show “that an actual conflict of interest adversely affected counsel's performance.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir.2000). An “actual conflict” means counsel was “compelled to compromise his or her duty of loyalty or zealous advocacy.” Id. Hernandez must establish an “adverse effect,” which may be shown by “evidence that some plausible alternative defense strategy or tactic could have been pursued, but was not because of the actual conflict.” Id. (quotation marks omitted).

Hernandez's argument fails because he is not able to make the requisite showings and does not establish prejudice for his procedural default. Applying the underlying standards, Hernandez does not show that he was prepared to recant his responsibility for the stabbing or withdraw his guilty plea for which he was currently imprisoned. He offers no evidence that counsel did not present admissible evidence or pursue an alternative defense strategy because of an actual conflict. In fact, Hernandez's co-counsel at trial cross examined and impeached the eyewitness's testimony by showing she originally told police she did not see who committed the stabbing. Accordingly, Hernandez has not shown that jurists of reason would debate the district court's procedural ruling and is therefore denied a certificate of appealability on this claim. See Slack, 529 U.S. at 478, 120 S.Ct. 1595.

3. Prior Conviction

Finally, Hernandez argues the state trial court erred by admitting documentation of his prior Mexican conviction because such conviction was unreliable. He contends the state district court's explanation for its denial of relief runs contrary to and involved an unreasonable application of Supreme Court precedent. He does not, though, make the required showing that reasonable jurists could disagree with the district court's conclusion that any error was harmless in light of the other admitted evidence that showed he previously committed murder and was imprisoned in Mexico.

The district court's denial of relief is AFFIRMED. Hernandez's motion to expand the certificate of appealability is DENIED.

Sells v. Livingston, _ F.3d _, 2014 WL 1357039 (5th Cir. 2014). (Stay)

Background: Defendant was convicted and sentenced to death in state court for capital murder. The United States District Court for the Southern District of Texas enjoined the state from executing defendant. State appealed.

Holding: The Court of Appeals held that defendant was not entitled to preliminary injunction. Motion to vacate stay of execution granted; preliminary injunction reversed.

Before SOUTHWICK, HAYNES, and HIGGINSON, Circuit Judges. PER CURIAM:

The district court on April 2, 2014, enjoined the State of Texas from executing Tommy Lynn Sells or Ramiro Hernandez. The State appealed. Another panel of this court reversed the injunction as to Sells. As to Hernandez, we REVERSE the district court's order and GRANT the motion to vacate the stay of execution.

BACKGROUND

In 2000, Hernandez was convicted and sentenced to death in Texas state court for murdering Glen Lich. Hernandez was employed by Glen Lich and had been living in a cabin on the Lich property as part of his compensation. The evidence at trial established that on October 14, 1997, Hernandez knocked on the door of the Lich's house and Glen went outside with him. Lera Lich, Glen's wife, saw them walk away from the house. A short time later, Hernandez returned to the door of the main house and entered. Lera noticed he had blood on his hands and face and a knife in his hand. Hernandez held the knife to Lera's neck and sexually assaulted her twice. Hernandez then made a phone call, tied Lera to the bed with towels he had torn up, and covered her head with a blanket. Hernandez asked for the keys to Lera's vehicle, went outside and started the vehicle, but turned the ignition off a few minutes later. He went back into the house, made more calls, and sexually assaulted Lera again. Hernandez continually threatened to harm Lera's mother, who was in another room asleep. Hernandez then fell asleep on the bed with Lera. She escaped as he slept, ran to a neighbor's house, and called law enforcement.

Two deputies arrived at the Lich home to find Hernandez still sleeping in Lera's bed. They arrested him and found Glen's body on the ground behind a shed on the property. The medical examiner testified Glen had been bludgeoned with a crow bar and his death caused by traumatic injury to the head and brain. DNA analysis showed the blood on Hernandez's hands and pants was consistent with that of Glen Lich. Hernandez was indicted, convicted after a jury trial of capital murder, and sentenced to death. He appealed his conviction and sentence and sought habeas relief in both state and federal courts. See Hernandez v. Stephens, 537 F. App'x 531, 533–34 (5th Cir.2013) (detailing the procedural history of Hernandez's case starting with his conviction).

On April 1, 2014, Hernandez and another death-row inmate, Tommy Lynn Sells, filed a Section 1983 complaint in the United States District Court for the Southern District of Texas. They sought a TRO to stay their imminent executions. They also sought to have the State ordered to disclose information about the lethal drugs that would be used to execute them. On April 2, the district court granted a temporary injunction, required the disclosure under an acceptable protective order and a stay of execution until after disclosure. The State immediately appealed the order as to both death-row inmates. As to Sells, another panel of this court vacated the stay of execution and reversed the preliminary injunction. Sells v. Livingston, No. 14–70014, USDC No. 4:14–CV–832 (5th Cir. Apr. 2, 2014, revised April 4, 2014). The Supreme Court denied a stay and Sells was executed on April 3. See Sells v. Stephens, No. 13–8284 (Apr. 3, 2014) (order denying cert.).

DISCUSSION

This panel is not bound by the Sells panel's decision because it was not a published opinion. We are, though, convinced by its reasoning. The claims of both inmates were brought in a common complaint under Section 1983, and ruled upon by the district court in a single order. No distinctions between the two inmates relevant to the issues before us have been argued by anyone.

We review a preliminary injunction for abuse of discretion. Janvey v. Alguire, 647 F.3d 585, 591–92 (5th Cir.2011). The determinative issue before both panels is whether this preliminary injunction and stay of execution granted to Hernandez and Sells was based on a showing of “a substantial likelihood of success on the merits” and that the balance of harms tip in their favor. See Tamayo v. Stephens, No. 14–70003, 2014 WL 241744, at *3 (5th Cir. Jan.22, 2014) (citing Adams v. Thaler, 679 F.3d 312, 318 (5th Cir.2012) (stay of execution), and Janvey, 647 F.3d at 595 (preliminary injunction)). The elements a plaintiff must establish to secure a preliminary injunction are a likelihood of success on the merits, a substantial threat of irreparable injury, that the threatened injury outweighs any harm that will result if the injunction is granted, and that the injunction will not disserve the public interest. Janvey, 647 F.3d at 595.

The information both inmates seek, as the Sells panel described it, is the source of the pentobarbital, documentation reflecting the purchase of the drug, the timing and means of storage of the drug, the date of manufacture/mixing of the drug, any lot numbers which may exist, the raw ingredients used to make the drug and the source of same, the testing that was conducted on the drug and the results of that testing, and the laboratory and names of its personnel which conducted the testing. Sells, No. 4:14–CV–832, at *4. Further, the Sells panel explained what the State has already disclosed:

The State has ... provided [that] the execution will be carried out consistent with the Texas Department of Criminal Justice's Execution Procedure established on July 9, 2012, and implemented in the seven most recent executions. Under this procedure, the TDCJ will administer a five-gram dose of pentobarbital obtained from a licensed compounding pharmacy within the United States. The batch from which the dose will be taken has been tested by an independent laboratory. That test revealed that it has a potency of 108%, and is free of contaminants. Hernandez is scheduled to be executed in accordance with execution procedures promulgated by the TDCJ on July 9, 2012, and known by counsel. The State of Texas has used pentobarbital in thirty executions, and other states have used the drug. The single-drug protocol is valid. Thorson v. Epps, 701 F.3d 444, 447 n. 3 (5th Cir.2012).

The district court interpreted a recent decision of this court to require that the inmates be provided the requested information. See Whitaker v. Livingston, 732 F.3d 465 (5th Cir.2013). In that decision we held that there must be some proof, not just hypothetical possibilities, that the execution process was constitutionally defective:

They must offer some proof that the state's own process—that its choice of pharmacy, that its lab results, that the training of its executioners, and so forth, are suspect. Plaintiffs have pointed to only hypothetical possibilities that the process was defective. Id. at 468. The district court here decided that the State must provide the information needed to determine whether the showing under Whitaker could be made. The district court held that only upon receiving further details about the drugs could specific objections to the execution process be articulated.

The Sells panel reversed. It determined that Whitaker did not create disclosure requirements but had held “no more than petitioner had failed to show a likelihood of success that his 14th and 8th Amendment rights would be violated.” Sells, No. 14–70014, at *5. We agree. Our interpretation of Whitaker is guided by the holdings of a slightly earlier decision of this court. See Sepulvado v. Jindal, 729 F.3d 413 (5th Cir.2013), cert. denied, ––– S.Ct. ––––, 2014 WL 284957 (Apr. 7, 2014). There, an inmate argued the State must disclose its execution protocol in order for the court to determine whether the protocols satisfied his due process rights. Id. at 418. The court disagreed because the assertion of a necessity for disclosure “does not substitute for the identification of a cognizable liberty interest.” Id. at 419. No appellate decision had yet held that obtaining information about execution protocols was a liberty interest, which meant that failing to disclose could not be a due-process violation. Id. at 419–20.

A death-row inmate is entitled to an injunction if he points to “ some hypothetical situation, based on science and fact, showing a likelihood of severe pain.” Whitaker, 732 F.3d at 468. Hernandez speculates that because the State has a new source of compounded pentobarbital, there are unknowns regarding possible contamination and improper compounding. “[M]ere speculation is not enough.” Id. at 469. Hernandez has failed to demonstrate a likelihood of success on the merits.