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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.
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