Juan Ignacio Blanco  


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Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: June 20, 1980
Date of birth: 1942
Victim profile: Oscar Frayre (service station mechanic)
Method of murder: Shooting
Location: El Paso County, Texas, USA
Status: Executed by lethal injection in Texas on January 30, 1987

Texas slayer dies in first execution of year

The New York Times

January 31, 1987

A man convicted of killing an automobile mechanic in a burglary was executed today after lawyers ignored his objections and made last-minute efforts to save him.

The man, Ramon Hernandez, 44 years old, became the first inmate to be executed in the United States this year. He was the 21st inmate in Texas to be put to death since the state resumed execution by lethal injection in 1982.

Mr. Hernandez ''did not want to be represented by attorneys'' because he thought he would lose the right to represent himself, Attorney General Jim Mattox said.

''He was a real good jailhouse lawyer - better than most,'' Mr. Mattox said. He told Mr. Hernandez early today that a final appeal to the Supreme Court had been denied.

Mr. Hernandez's rejection of legal aid had failed to deter his former trial lawyer, Richard Lovelace, from pressing his case in state and Federal courts. #5 to 2 Vote by High Court Mr. Lovelace's efforts delayed the execution about an hour. The Supreme Court rejected his appeal by a vote of 5 to 2, allowing the state to proceed with the execution.

Mr. Lovelace took the case to Federal District Judge Lucius Bunton and the United States Court of Appeals for the Fifth Circuit before going to the Supreme Court.

Mr. Hernandez also turned down an offer of help from State District Judge Peter Peca, who had sentenced him. Judge Peca spoke to the inmate by telephone for 90 minutes before refusing a stay.

''I'll always love you, you know that,'' Mr. Hernandez told his wife, Velma, after the needle was inserted. He was pronounced dead at 1:13 A.M.

He was convicted of shooting the mechanic, Oscar Frayre, in a 1980 burglary at a service station in El Paso that had closed for the night.

A former welder and community college student, Mr. Hernandez said drug use was responsible for his repeated brushes with the law that began at age 13. He served a three-year term in Texas prisons in the mid-1960's for drug possession and had Federal convictions for illegally transporting aliens.

''Nobody wants to die,'' he said in an interview this week. ''But sometimes people have to make a stand. I have a paramount right to represent myself. If I get a stay, I won't be making a stand. Seeing that I'm a human being, it's very important for me not to die. But at the same time, it's important for me to make a stand.''

Lawyers familiar with capital cases disputed Mr. Hernandez's position that accepting help from a lawyer would forfeit his right to represent himself.

''The guy has a whole misconception of the law,'' Will Gray, a lawyer, said. ''His point ain't going to help him. He can take his point to heaven with him.''


Texan executed for 1980 slaying

The New York Times

January 30, 1987

A former welder who had declined legal help was executed early this morning for the 1980 murder of a mechanic in a burglary at a service station.

The United States Supreme Court rejected a last-minute appeal early today to halt the execution. The court, in a hearing by telephone, voted 5 to 2. to reject lawyers' pleas for a stay.

The convict, Ramon Hernandez, 44 years old, of El Paso, was pronounced dead at 1:13 A.M. after an injection, said Attorney General Jim Mattox. He was the 21st Texas inmate to be executed since the state resumed the death penalty in 1982.

Earlier Thursday, a state judge and two Federal courts declined to stay the execution. A state prosecutor said Mr. Hernandez declined help in a telephone conversation with Judge Peter Peca of State District Court.

''The court asked if he wanted a stay and asked what he wanted and he apparently refused to do anything,'' Bill Zapalac, an Assistant Attorney General, said. ''The trial court recommended that relief be denied.''

Anyone can file on behalf of an inmate, ''but if the inmate refuses to have it considered, the court doesn't have to consider it,'' said Mr. Zapalac.

Richard Lovelace, who defended Mr. Hernandez at his trial, filed the request for a stay of execution, but Mr. Zapalac said Mr. Hernandez would not accept Mr. Lovelace as his attorney.

After speaking with Judge Peca, Mr. Hernandez was moved from his Death Row cell to a holding cell next to the death chamber while lawyers pressed appeals before Federal District Judge Lucius Bunton and the United States Court of Appeals for the 5th Circuit, in New Orleans.

''Nobody wants to die,'' Mr. Hernandez said in an interview this week. ''But sometimes people have to make a stand. I have a paramount right to represent myself.

Mr. Hernandez was convicted of killing Oscar Frayre in a 3 A.M. burglary at an El Paso service station on June 20, 1980.

Mr. Frayre was asleep at the closed service station when he was shot.


780 F.2d 504

Ramon Pedro Hernandez, Plaintiff-Appellant,
David Spencer, Detective Sergeant, Et Al., Defendants-Appellees.

No. 85-1175.

Federal Circuits, 5th Cir.

January 13, 1986

Appeal from the United States District Court for the Western District of Texas.

Before GEE, RANDALL, and DAVIS, Circuit Judges.

GEE, Circuit Judge:

Appellant Hernandez, convicted of murder in state proceedings and awaiting execution, appeals from a trial court order staying his civil rights suit against policemen who arrested him for the murder "until such time as the courts have made ultimate disposition of plaintiff's sentence of death and the issues raised in connection with the state proceedings in which said sentence was imposed."

His repetitious, forty-four page, handwritten complaint appears to assert that his arrest following the murder was illegal, that his residence was illegally searched, and that the defendants used unreasonable force and threats in connection with his arrest and consequent interrogation.

While it is possible to distil various civil rights claims from certain expressions in Hernandez' rambling complaint, most of these are inextricably intertwined with his challenge to the fact of his conviction or the gravity of his sentence. Such challenges, however labelled, are properly treated as habeas corpus matter. Jackson v. Torres, 720 F.2d 877 (5th Cir. 1983). As we noted in Torres,

The relief sought by the prisoner or the label he places upon the action is not the governing factor. Id. [Johnson v. Hardy, 601 F.2d 172 (5th Cir. 1979)] This Court has set out the following criterion:

On our reading of Wolff [v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)] and Preiser [v. Fleming, 651 F.2d 366 (5th Cir. 1981)] we reject the argument that the propriety of 1983 actions may be determined solely on the basis of the relief sought, i.e., actions for money damages may go forward while actions for injunctive relief from incarceration may not. We conclude from the Supreme Court cases that habeas corpus is the exclusive initial cause of action where the basis of the claim goes to the constitutionality of the state court conviction.

Fulford v. Klein, 529 F.2d 377, 381 (5th Cir. 1976) adhered to en banc, 550 F.2d 342 (5th Cir. 1977). Indeed, in Caldwell v. Line, 679 F.2d 494, 496 (5th Cir. 1982), this Court stated: "When a state prisoner attacks the fact or length of his confinement, the appropriate cause of action is a petition for habeas corpus, even though the facts of the complaint might otherwise be sufficient to state a claim under Section 1983."

720 F.2d at 879 (footnote omitted, emphasis added). Thus where factual allegations of a complaint could give rise either to habeas relief or to civil rights remedies, it is settled that the former must be first pursued to a conclusion and that the requirement of exhaustion cannot be evaded by casting the complaint in civil rights form.

Indeed, our authorities make clear that, as to such factual claims bearing a potential for dual remedies, not only state habeas remedies but federal ones as well must be exhausted before a Section 1983 action based upon them may proceed. Torres, supra at 879; Richardson v. Fleming, 651 F.2d 366, 375 (5th Cir. 1981).

In Texas, at any rate, problems of limitations do not arise as to such claims as Hernandez's because of the application to them of the Texas tolling statute. Miller v. Smith, 625 F.2d 43 (5th Cir. 1980) (on rehearing). Thus even had the trial court dismissed them, rather than merely holding them in abeyance as it did, limitations would not have run upon them.[fn1]

One of the claims deducible from Hernandez's pleading, however, is of a different kind: that for the use of unreasonable force in connection with and following his arrest. We have held that such a claim does not go to the underlying validity of his state conviction and that consequently exhaustion of state remedies as to it is not required. Delaney v. Giarrusso, 633 F.2d 1126 (5th Cir. 1981).

In Delaney, we were presented with two claims, both cast in Section 1983 form. As in today's case, one was a claim for illegal arrest, the other for use of excessive force in connection with it. The trial court decided each claim on the merits. We vacated the court's judgment on the former claim, noting that it was properly to be viewed as a habeas one requiring exhaustion, and remanded for a determination of whether it had been exhausted or not and for further appropriate proceedings in light of the determination. The second being properly brought as a civil rights claim, we affirmed the trial court's disposition of it. Had the trial court followed a similar course in handling today's case - severing the excessive force claim sua sponte and proceeding with the disposition of it, while holding the habeas-type claims in abeyance pending their exhaustion - we would have found no fault with its action.

Nor do we find fault with the course that the trial court did pursue. Presented with a confusing congeries of claims laid in one complaint, all arising from the same incident - some subject to exhaustion requirements and some not - the court determined to hold all in abeyance pending the qualification of each to proceed, so that all could be disposed of in one outing. Not only was this good judicial administration, but we perceive no obligation on the part of the busy trial judge to pick through such a mass of ambiguous matter, sorting out one type of claim from the other, and in effect acting as counsel for the pro se litigant in tailoring his claims, some for disposition, some for abeyance or dismissal. This was and is for the litigant, not the judge, to do; and it remains open to Hernandez to seek withdrawal of the excessive force claim and make it the subject of a separate complaint. Should he not do so, other things being equal, limitations will not run on it for the reasons we have stated; and it will be reached with the others in due course. Hernandez is the master of his pleadings and, subject to the requirements of Rule 11, Fed.R.Civ.P., may include in them whatever claims he wishes. The trial court is the master of its docket, however; and so long as Hernandez's pleading brigades together claims requiring exhaustion with claims not requiring it, the court may properly require that all be ready to proceed upon before it proceeds upon any.



[fn1] One may well question, as did our panel in its original opinion in Miller v. Smith, 615 F.2d 1037 (5th Cir. 1980), the rationality of tolling limitations upon such claims. As to imprisoned persons, the Texas tolling statute is a relic of the days when convicted felons were viewed as civilly dead and hence disabled from bringing suit. It is notorious that this is no longer the case and has not been for years; in 1976, for example, over 40% of the civil rights suits filed in Texas federal courts were prisoner cases. Miller, supra, at 1040. Texas has nevertheless failed to amend its tolling statute, Article 5535, Tex.Rev. Civ.Stat.Ann., in this respect; and Supreme Court authority mandates its literal application. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980).


809 F.2d 1136

Richard LOVELACE, Applicant and as Next Friend of Ramon
Pedro Hernandez, Petitioner-Appellant,
James A. LYNAUGH, Acting Director, Texas State Department of
Corrections, Respondent-Appellee.

No. 87-1065.

United States Court of Appeals,
Fifth Circuit.

Feb. 3, 1987.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, WILLIAMS and JONES, Circuit Judges.


Movant, Richard M. Lovelace, on January 29, 1987, sought a stay of execution on behalf of Ramon Pedro Hernandez. Lovelace has been Hernandez' court-appointed attorney who had served in the trial resulting in the capital sentence. After the trial Hernandez had requested to be permitted to proceed pro se, and when the sentencing took place in November 1986, Lovelace was allowed to withdraw as counsel.

The execution date for Hernandez was set for after midnight January 30, 1987. For several days before that date, Lovelace and members of Hernandez' family met with him and tried to get him to request a stay of execution and file a habeas corpus petition. He refused to do so. Finally, on January 29, movant Lovelace, without the approval of Hernandez, petitioned for habeas corpus and a stay of execution in the state district court. The ground for the petition was the basic claim that Hernandez had never understood that he had the right to act pro se. The state district court interviewed Hernandez by telephone resulting in findings of fact which reveal that through a series of questions and answers the court had made it completely clear to Hernandez that he had the right to ask for a stay on a pro se basis, that he could do so immediately and orally, and that he was not in any way bound by having had Mr. Lovelace and others as attorneys in times past. In this interview Mr. Hernandez declined several times to file any motions in his own behalf although the record is clear that the state district judge encouraged him to do so.

The state district court then denied habeas corpus, first on the ground that Lovelace did not have standing as "next friend" to petition on behalf of Hernandez, and second on the ground that Hernandez himself had clear understanding of his rights and had refused to take any steps to postpone his execution. The Texas Court of Criminal Appeals denied an appeal.

Having exhausted state remedies, movant Lovelace then moved for a stay of execution in the United States District Court at approximately 5:15 p.m. on January 29, 1987. The district judge was in another city trying cases and thus it took until after 11:00 p.m. to reach him. Sometime after 11:30 p.m., the district judge denied the stay. An oral motion for a stay of execution was then made by movant to this Court.

In the meantime this Court had been furnished with movant's motion and with the state's reply as well as transcripts of the sentencing hearing and thus was thoroughly conversant with the issues involved. We had also been furnished a copy of the findings of fact and conclusions of the law of the state district judge as described above.

We heard oral argument in a conference call, which revealed no information countering the findings of the state district court. This Court then denied the oral motion for a stay at 11:55 p.m. on January 29. The Court now understands that the punishment of death was carried out at approximately 1:00 a.m. on January 30, 1987.

The oral motion for a stay of execution was denied because the record is clear that as a matter of choice the prisoner under sentence of death chose not to undertake to file any motion for stay of execution or petition for habeas corpus either on a pro se basis or through the representation of movant Lovelace or any other attorney. The record reveals that Hernandez was a person of substantial intelligence, with a degree of at least junior college level, and was well versed in the criminal law and procedures as a result of his own studies over a period of years. He had originally requested to the jury assessing punishment that he be given the death penalty rather than a life sentence as a matter of preference. This record is totally bereft of any indication that Hernandez wished in any way to raise any further questions concerning his conviction and punishment in spite of a number of attempts by family and others to get him to do so.

This Court, therefore, had before it no motion for stay, no petition for habeas corpus, nor any other legal request by or with the authorization of Hernandez. Further, it must be concluded that Lovelace had no standing as a "next friend" to raise the issues over the opposition of the prisoner. "Next friend" petitions are permitted only if it is clearly demonstrated that the individual is unable to seek relief on his own behalf or is mentally incompetent to do so. Gilmore v. Utah, 429 U.S. 1012, 1014, 97 S.Ct. 436, 437, 50 L.Ed.2d 632 (1976). There is nothing in the record which casts any doubt upon the mental competence of Hernandez. There was, therefore, no justification for a petition or motion as next friend. Rumbaugh v. Procunier, 753 F.2d 395, 398 (5th Cir.1985).




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