You are on page 1of 4

Case 1:08-cv-00720-TH Document 48 Filed 11/15/15 Page 1 of 4 PageID #: 1059

IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
GUSTAVO J. GARCIA,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent.

Civil Action No. 1:08-cv-720

RESPONSE OF ATTORNEY TO GARCIAS MOTION FOR NEW COUNSEL


Comes Now, Seth Kretzer, and files this Response to Garcias motion for new counsel
(Doc. No. 47).
As an initial matter, Mr. Garcias letter is correct that his certiorari petition is pending in
the Supreme Court. It is docketed as Gustavo J. Garcia v. Stephens, No. 15-6557. But he omits
that it was Mr. Kretzer and Mr. Volberding who filed this petition on October 14, 2015. A copy
of this petition is attached as Exhibit A and has previously been sent to Mr. Garcia. A copy of
the Courts docketing notice is attached as Exhibit B.
Mr. Garcia is also correct that his execution date has been set for February. But I do not
know what he means when he writes that there was full cooperation of my counsels with the state
prosecutors as the State is free to request an execution date from the presiding state judge once
the Fifth Circuits mandate issues. What Mr. Garcia may be suggesting is that he wanted a hearing
before the Collin County state judge in which the judge formally sets a date for execution. No such
hearing is required or necessary. Procedurally, no new claims or evidence could be presented at

Case 1:08-cv-00720-TH Document 48 Filed 11/15/15 Page 2 of 4 PageID #: 1060

such a hearing. Substantively, whether the execution warrant is signed in the courtroom or on the
judges desk makes no difference in the timing or method of the execution.
The gravamen of Mr. Garcias motion trains on the conflict issues arising from
Martinez/Trevino and its effect on cases where the same lawyer served as both counsel for the state
and federal habeas stages. Mr. Garcia seems to recognize that Mr. Kretzer was not counsel for the
state habeas stage, but rather was substituted in once the federal briefing was far along in the
process. In other words, Mr. Kretzer has no conflict since he did not have any involvement in the
state-level proceedings. As such, there would not seem to be the need for Speer/Mendoza counsel
which is utilized only when no conflict-free counsel already connected with the case can evaluate
the work of the state habeas lawyer.
Mr. Garcia is incorrect that any conflict by Mr. Volberding would be imputed to Mr.
Kretzer. As an initial matter, as Mr. Kretzer conducted his work, he was cognizant of any potential
Martinez/Trevino issues, and found none. Mr. Garcias letter does not state what ineffective
assistance of counsel contention he thinks anyone failed to raise. A lawyer cannot raise a generalize
ineffective assistance of counsel contention; indeed, to avail oneself of the Martinez/Trevino
exception, the petitioner must show some underlying failure of the trial counsel rather than the
state direct appellate lawyer or any subsequent attorney.
Moreover, Mr. Kretzer and Mr. Volberding are not law partners. They have never shared
a fee, have never shared an operating expense, have never referred any retained case (civil or
criminal) to one another, have no access to the others files, and live in different cities.
Mr. Garcia is incorrect that either Mr. Kretzer or Volberding have abjured the possibility
of any future appeal. To the contrary, Counsels would not hesitate to file a successor writ with the
Texas Court of Criminal Appeals were meritorious grounds to present themselves for such a writ.

Case 1:08-cv-00720-TH Document 48 Filed 11/15/15 Page 3 of 4 PageID #: 1061

We continue to represent Garcia on all issues. We will defend him to the end to the best of our
abilities and in accordance with applicable case law, statutes, rules, procedures and canons of
ethics.
Mr. Kretzer and Volberding also stand ready to file for clemency if the Supreme Court
rules adversely to Garcia. In sum, we will continue to work with Mr. Garcia in gathering any
information he wishes to include in his clemency application.
With this response, counsel provides a proposed order he recommends to the Court as this
issue may be litigated to the Fifth Circuit.
Respectfully submitted,

Seth Kretzer
LAW OFFICES OF SETH KRETZER
The Lyric Center
440 Louisiana Street; Suite 200
Houston, TX 77002
(713) 775-3050 (direct)
(713) 343-7210 (direct)
(512) 689-6759 (cell)
Skype: Seth.Kretzer
COUNSEL FOR GUSTAVO GARCIA
CERTIFICATE OF SERVICE
I certify that the foregoing document was filed on the ECF System on the 15th day of
November, 2015. I also certify that a copy was mailed to Mr. Garcia at the Polunsky Unit.

Seth Kretzer

Case 1:08-cv-00720-TH Document 48 Filed 11/15/15 Page 4 of 4 PageID #: 1062