Was petitioner denied the effective assistance of counsel?

QUESTIONS PRESENTED Five minors accused petitioner of sexual abuse in response to leading and suggestive questioning by their parents and repeated their accusations at petitioner’s trial. Petitioner’s trial counsel did not impeach them with prior inconsistent statements made either to a parent or a forensic interviewer. Counsel did not retain a psychologist to review the discovery and testify that the leading and suggestive questioning had the potential to contaminate the accusations (although he argued this). Petitioner was convicted and sentenced to 25 years in prison without parole. Petitioner sought habeas corpus relief on the basis of ineffective counsel. The state trial court denied an evidentiary hearing and ordered counsel to respond to the allegations by affidavit. The prosecutor privately suggested to counsel in writing what his responses should be. Counsel filed an affidavit that incorporated the prosecutor’s suggestions without disclosing their collusion. When petitioner discovered the deception, he again moved for an evidentiary hearing. The trial court denied a hearing, credited counsel’s statements in his affidavit, and entered findings of fact and conclusions of law recommending that relief be denied. The Texas Court of Criminal Appeals (TCCA) adopted the findings and conclusions as its own and denied relief without written order. The questions presented are: I. Was petitioner denied the effective assistance of counsel because trial counsel failed to impeach the complainants with ii QUESTIONS PRESENTED—Continued their prior inconsistent statements and failed to call a psychologist to testify that their parents had engaged in leading and suggestive questioning that had the potential to contaminate their accusations of sexual abuse? II. Did the state courts deny petitioner procedural due process by rejecting his substantial ineffective assistance of counsel claim without conducting a live evidentiary hearing, particularly in view of the fact that trial counsel’s affidavit was prepared in collusion with the prosecutor? iii RELATED CASES e §©State v. Cano, Nos. 14-026 and 14-031, 130th District Court of Matagorda County. Judgments entered November 6, 2014. ¢ Cano v. State, Nos. 13-15-0005-CR and 18-150007-CR, Thirteenth Court of Appeals of Texas. Judgments entered August 4, 2016. e Cano v. State, Nos. PD-1046-16 and PD-1048-16, Texas Court of Criminal Appeals. Judgments entered November 9, 2016. e Ex parte Cano, Nos. 14-026A and 14-031A, 130th District Court of Matagorda County. Judgments entered December 31, 2020. e Ex parte Cano, Nos. WR-92,266-01 and WR92,266-03, Texas Court of Criminal Appeals. Judgments entered June 16, 2021.