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Ramon Pedro HERNANDEZ
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,
v.
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.
AFFIRMED.
*****
[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, v.
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.
PER CURIAM:
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).
