shot and killed a Dallas police officer on Jan. 16, 1983. Officer
John R. Pasco noticed Montoya carrying a weapon down the street.
When Pasco attempted to take the gun away, Montoya shot him in the
head. Pasco died about six hours later at a hospital.
Montoya, a 38-year-old Mexican citizen, was
arrested about 45 minutes after the shooting just blocks down the
street. Montoya, who was unemployed when he committed the crime, had
prior convictions for weapons possesion and burglary.
After being convicted, Montoya was scheduled to
be executed on Jan. 26, 1993. Instead, he received a reprieve just
seven hours before his proposed execution.
On March 25, 1993, however, Montoya was finally
executed. "I just got away with one date last month and now I have
another one," Montoya said.
In his final words, Montoya told his father, Paz
Montoya, "May God help us." In return, the elder Montoya said, "May
God help you, too." With that, the inmate simply said, "I'm ready."
A prison official confirmed that Montoya died at
12:18 a.m. Because Montoya was not an American citizen, much
controversy surrounded the case. Texas Gov. Ann Richards rejected
pleas from Mexican President Carlos Salinas de Gortari and the
"Mexico considers that the death penalty is an
excessive punishment that cannot be justified from the punitive
point of view nor the prevention of crime," Salinas said. The
maximum sentence possible in Mexico is life in prison.
Montoya was the first Mexican executed in more
than a half-century.
"The day a Mexican is executed, it will impact
our society enormously," Andres Rozental, senior Under Secretary of
Foreign Affairs, said in an interview a year before the execution. "Given
NAFTA, given the closeness of the relationship at this point, it
would be very difficult to convince Mexicans why this would be
Montoya's execution brought about riots not only
outside the prison walls, but also in Mexico. Several American
inmates in Mexico had to be taken to a safe place for fear they
would be murdered by Mexican inmates.
Ken Carden, one of the deputy district attorneys
who prosecuted Montoya, described him as "one of the most dangerous
individuals I have ever met. I believe there are some people who are
wolves masquerading in human clothing."
As far as the people Montoya affected with the
slaying, one would rather forget the incident than continue to feel
the hate. Kay Pasco, mother of the victim, spoke out about Montoya's
execution. "At first, I couldn't wait for Montoya to receive the
death penalty," she said. "I probably hated every inch of his body.
But then over the years, I have no feeling at all for the man. After
a while, he's just a name."
Texas Executes a Mexican Killer, Raising a
Furor Across the Border
The New York Times
March 26, 1993
A Mexican convicted of
killing a Dallas police officer 10 years ago
was executed by lethal injection early this
morning, drawing a rebuke from the
Government of Mexico.
Ramon Montoya, 38, became
the first Mexican executed in Texas in 51
years. Two days earlier the state executed a
native of the Dominican Republic, Carlos
Santana, despite protests from his native
Today's execution was
front-page news across Mexico, where human
rights groups questioned the fairness of the
trial and accused the American justice
system of racism. In San Luis Potosi, Mr.
Montoya's home state in central Mexico,
officials said 21 American prisoners had
been transferred to a safe place for two
weeks because they had reported threats from
Mexican inmates over the execution.
Execution Toll Reaches 197
Mr. Montoya's case drew
pleas of mercy from Mexico and the Vatican.
He came within seven hours of being executed
on Jan. 27, but Justice Antonin Scalia
issued a reprieve to allow the full Supreme
Court to decide whether to hear an appeal.
On Wednesday the Court rejected an appeal,
which contended that Mr. Montoya's
confession had been improperly obtained.
Mr. Montoya, who was one
of nine Mexicans on death row in Texas, was
the 56th person executed in the state and
the 197th nationwide since 1976, when the
Supreme Court reinstated capital punishment.
He was convicted of
fatally shooting Officer John Pasco, 27, on
Jan. 16, 1983. Officer Pasco was shot as he
tried to disarm Mr. Montoya, who said the
gun went off when he fell while trying to
discard it and avoid arrest.
Police records indicated
that Mr. Montoya was trying to avoid his
12th arrest in eight years and the
possibility of deportation to Mexico.
His last words were to
his father, Paz Montoya. "May God help us,"
he said. "I'm ready."
"May God help you, too,"
his father replied, then watched impassively
as the execution was carried out. Mr.
Montoya died seven minutes after a lethal
mix of drugs was injected, prison officials
Outside the prison, more
than two dozen protesters held candles and
chanted in Spanish, "Justice!" and "Life,
Within minutes of Mr.
Montoya's death Mexico's Foreign Ministry
issued a statement saying it "profoundly
laments" the execution "and reiterates its
opposition to the application of capital
punishment as cruel and inhumane."
988 F.2d 11
James COLLINS, Director, Texas Department of Criminal
Institutional Division, Respondent-Appellee.
United States Court of Appeals,
March 24, 1993.
Appeal from the United States
District Court for the Northern District of Texas.
Before POLITZ, Chief Judge, JOLLY,
and JONES, Circuit Judges.
Montoya, scheduled to be executed after midnight tonight,
Wednesday, March 24, 1993, has applied to this court for a
certificate of probable cause to appeal. Concurrently, he seeks
leave to appeal in forma pauperis and a stay of execution. This
is his second appearance in our court, his earlier habeas appeal
having been considered and denied in Montoya v. Collins, 955
F.2d 279 (5th Cir.1992), reh'g denied, 959 F.2d 969, cert.
denied, --- U.S. ----, 113 S.Ct. 820, 121 L.Ed.2d 692 (1992). We
deny CPC and a stay.
This court lacks jurisdiction
to hear an appeal in this case unless a certificate of probable
cause is granted. Fed.R.App.P. 22(b). To obtain a certificate of
probable cause, Montoya must "make a substantial showing of the
denial of a federal right." Barefoot v. Estelle, 463 U.S. 880,
893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To sustain
this burden, Montoya "must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve
the issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further." Barefoot,
463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4.
The procedural background of
this case is related in the Fifth Circuit's above-cited previous
opinion. After the decision in that appeal, Montoya was
scheduled for execution before sunrise on January 27, 1993, and,
having unsuccessfully proceeded for a second time through the
state courts on a habeas petition, was granted a stay by the
Supreme Court on January 26, pending disposition of his petition
of certiorari. On February 22, 1993, the Supreme Court denied
certiorari review and, on February 23, the trial court
rescheduled Montoya's execution for March 25, 1993.
In this, his second federal
habeas petition, Montoya raises a variant of the issue that the
state and federal courts have previously rejected: that his
Sixth Amendment rights were violated because "the state
knowingly questioned the petitioner after he was represented by
counsel in the absence of his counsel." In our previous opinion,
we described his challenge as follows:
Montoya argues first that his
interrogation by the Dallas Police Department violated his right
to counsel under the Sixth Amendment and the prophylactic rule
of Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d
Montoya, 955 F.2d at 282.
Montoya's petition, filed in federal district court on March 23,
1993, as much as admits duplication, as it states:
The petitioner recognizes that
the Federal Courts frown upon successor petitions filed in state
habeas corpus proceedings. However, the issue presented here was
raised in an earlier petition and the decision at that time was
based upon the petitioner's failure to affirmatively assert his
right to counsel at the magistrate's hearing. This Court [sic],
nor did any other court, reach the issue that the questioning of
a defendant after he was represented by counsel once the Sixth
Amendment rights had attached was a violation of his
constitutional rights. This petition now gives this Court a
second chance to enter the proper finding. Simply put, after the
attachment of sixth amendment rights, a person represented by
counsel cannot be interrogated without informing counsel.
There is no question that this
filing of a federal petition for habeas relief constitutes an
abuse of the writ or a successive petition under Rule 9(b),
Rules Governing § 2254 Cases in the United States District
Courts. Unless a petitioner shows cause and prejudice, a federal
court may not reach the merits of successive claims, which raise
grounds identical to grounds heard and decided on the merits in
a previous petition, Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct.
2616, 91 L.Ed.2d 364 (1986), or new claims, not raised in an
earlier federal petition. McCleskey v. Zant, 499 U.S. ----, 111
S.Ct. 1454, 113 L.Ed.2d 517 (1991). However, "even if a state
prisoner cannot meet the cause and prejudice standard a federal
court may hear the merits of the successive claims if the
failure to hear the claims would constitute a 'miscarriage of
justice.' " Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct.
2514, 2518, 120 L.Ed.2d 269 (1992).
The question whether there has
been a miscarriage of justice "is concerned with actual as
compared with legal innocence." Sawyer, --- U.S. at ----, 112
S.Ct. at 2519. To fall within the actual innocence exception, a
habeas petitioner must show either that the trier of facts would
have entertained a reasonable doubt of his guilt, Kuhlmann v.
Wilson, 477 U.S. 436, at 454 n. 17, 106 S.Ct. 2616, at 2627 n.
17, or where the alleged error pertains to the sentencing phase
of the capital trial, that no reasonable juror would have found
the petitioner eligible for a death penalty under applicable
state law. Sawyer v. Whitley, --- U.S. at ----, 112 S.Ct. at
Montoya did not even allege in
this second petition that he could establish cause and prejudice
for failing to raise his newly-fashioned version of his Sixth
Amendment claim in his previous petition. He has not even
alleged, much less demonstrated, that a "miscarriage of justice"
regarding actual innocence or "actual innocence of the death
penalty" could be established in his case. This petition must
accordingly be viewed as an abuse of the writ or an
impermissible successive petition and may not be considered on
Further, because Montoya could
have raised this issue at a much earlier date in his criminal
proceedings, and because he has delayed raising it until 48
hours before the scheduled execution time, it is arguable that
even if the McCleskey test were satisfied, equity would prevent
the granting of habeas relief. Gomez v. United States District
Court for the Northern District of California, --- U.S. ----,
----, 112 S.Ct. 1652, 1653, 118 L.Ed.2d 293 (1992).
For these reasons, Montoya has
raised no issue on which we may grant habeas corpus relief,
hence, he has raised no issue capable of debate among reasonable
The motion to proceed in forma
pauperis is GRANTED; motion for certificate of probable cause is
accordingly DENIED; motion for stay of execution is DENIED.