Tercero, Bernardo Aban, WR-62,593-02

Background

Bernardo Adan Tercero was convicted of capital murder in Harris County, Texas, and sentenced to death (trial Oct. 2000); execution date set for Aug. 26, 2015.
Initial state habeas counsel (Richard Wheelan) filed an 11.071 application that was largely record‑based and conducted minimal extra‑record investigation; Tercero later filed a pro se supplement alleging, inter alia, ineffective assistance of trial counsel for failing to conduct meaningful mitigation investigation.
This Court dismissed Tercero’s pro se supplement as an abuse of the writ (successive application) in 2005; Tercero then pursued federal habeas litigation, which was denied in part on procedural default grounds.
New counsel (Walter Long) asks the Court on its own motion to reconsider the prior state habeas dismissal, arguing (1) Wheelan’s 11.071 performance violated statutory duties under art. 11.071 §3(a) to investigate extra‑record facts before filing the initial application, and (2) trial counsel were ineffective at punishment for failing to develop mitigation.
Newly developed mitigation evidence (Nicaragua records, witness declarations, and a recent neuropsychological evaluation) allegedly shows poor schooling, family mental‑illness history, childhood pesticide exposure, severe executive functioning deficits, and an IQ around the low 80s—supporting both mitigation and potential incompetency concerns.

Issues

Issue	Plaintiff's Argument (Tercero)	Defendant's Argument (State)	Held (Requested)
Whether state habeas counsel met statutory duty under Art. 11.071 §3(a) to investigate extra‑record facts before filing initial 11.071 application	Wheelan failed to conduct the required expeditious extra‑record investigation (billing shows only record review and minimal contacts), so his initial filing was inadequate and cannot be imputed to bar later claims	The State previously treated the pro se supplement as a successive/abuse‑of‑writ filing and relied on procedural bars; Graves limits relief for habeas counsel‑based claims	Court should find Wheelan’s 11.071 performance inadequate under §3(a) and reconsider the earlier dismissal (reopen the pro se supplement)
Whether Ex parte Graves should be revisited or modified in light of Martinez/Trevino to allow a state‑level exception when initial state habeas counsel is ineffective	Trevino/Martinez show that deficient state habeas counsel can be cause to excuse procedural default for trial IAC claims; Graves should be narrowed so Texas applicants get an analogous state‑law remedy	The State relies on Graves and Section 5 abuse‑of‑the‑writ rule to preserve finality and bar successive claims	Court should reconsider Graves’ reach and allow a narrow exception to §5 where initial 11.071 counsel forfeited substantial trial IAC claims
Whether trial counsel rendered constitutionally ineffective assistance at punishment by failing to investigate and present mitigating evidence	Trial counsel failed to obtain a social history, secure mitigation specialists timely, or collect documentary evidence (school, medical, family mental‑health records), causing prejudice given newly developed mitigation and neuropsychological results	The State argued trial counsel did present mitigation (family witnesses, Hurricane Mitch service) and that the record‑based evidence and witness credibility supported punishment outcome	Court should permit litigation of the IAC mitigation claim on the merits (reopen habeas) because there is a reasonable probability of a different sentence if proper mitigation had been presented
Whether newly developed neuropsychological and documentary evidence (IQ, executive deficits, exposure, family history) establishes prejudice or other relief (competency/Atkins‑type concerns)	New testing shows significant executive dysfunction and borderline IQ, reframing culpability and supporting prejudice and competency concerns; such evidence was not developed at trial due to counsel failures	The State previously contested exhaustion and default; no ruling yet on competency in this filing (46.05 motion noted separately)	Court should consider the new evidence as grounds to reopen review, stay execution, and allow development of competency and mitigation claims

Key Cases Cited

Martinez v. Ryan, 132 S. Ct. 1309 (2012) (deficient state postconviction counsel can supply cause to excuse procedural default of trial IAC claims in federal habeas)
Trevino v. Thaler, 133 S. Ct. 1911 (2013) (applies Martinez equitable exception to Texas cases under certain circumstances)
Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002) (interpreting competent counsel under art. 11.071; Court urged to revisit Graves here)
Strickland v. Washington, 466 U.S. 668 (1984) (governs ineffective assistance of counsel standard)
Wiggins v. Smith, 539 U.S. 510 (2003) (prejudice and duty to investigate mitigating evidence)
Ex parte Gonzales, 204 S.W.3d 391 (Tex. Crim. App. 2006) (Texas case finding trial counsel ineffective for failing to investigate child abuse and mental health mitigation)
Rompilla v. Beard, 545 U.S. 374 (2005) (counsel’s duty to investigate and use available records for mitigation)