On February 22, 1983, Villafuerte was
arrested near Ash Fork in connection with a disturbance. He had been
driving a car belonging to Amelia Schoville. Villafuerte eventually told
authorities that Schoville was his girlfriend and that they had fought
the day before in his Phoenix trailer. He claimed he had loosely bound
Schoville to keep her from calling the police and had then left in the
When Phoenix police officers went to the trailer,
they found Schoville's body on a bed. She was clad only in a blouse, bra,
and panties, and her hands were tied behind her back. A strip of bedding
bound one of her ankles to her hands, and her head was wrapped in a
sheet, a bedspread, and long thermal underwear, all of which were
bloodstained. A ball made of a tightly wrapped strip of bed sheet was
found in her throat.
Lab tests showed the presence of seminal fluid.
Schoville had died as a result of gagging.
State prosecutors said Villafuerte viciously beat
Schoville, leaving her blood-soaked body tied up on a bed while she was
still alive. They say it took the 47-year-old mother of three 24 hours
to die, finally gagging on the rolled-up strip of sheet in her mouth.
Although Villafuerte, a Honduran national who was
married to another at the time, admitted to beating Schoville, he
insisted he told two friends to untie her after he left the trailer. And
they, he said, were the ones who raped her and left her to die.
Villafuerte spent more than 14 years on death row
before his execution.
Presiding Judge: Paul LaPrade
Prosecutor: James Minter
Start of Trial: July 11, 1983
Verdict: July 18, 1983
Sentencing: September 9, 1983
State v. Villafuerte, 142 Ariz. 323, 690 P.2d 42
Arizona Department of Corrections "Death Row" Web site
"Profiles of Arizona Death Row Inmates," Arizona Attorney General's
The Arizona Republic archives
One broiled chicken, nine corn tortillas, two
tomatoes, one can of jalapenos, two cans of Pepsi, one four-ounce plate
Jose Roberto Villafuerte
Officials said Jose Roberto Villafuerte, convicted for
the 1983 murder of his girlfriend, died by lethal injection at 12:18
a.m. (Pacific time) while strapped to a table at the state prison
complex southeast of Phoenix.
Witnesses reported that the 45-year-old man showed no
remorse, saying that he "loved everybody," and telling his
victim's son that he would "be with the lord."
He had maintained his innocence to the end.
Villafuerte's execution came following a flurry of
last-minute activity that included an unprecedented meeting by a state
panel that rules on such cases.
But the Board of Executive Clemency voted 4-1 to
reject his appeal after hearing a plea by Honduran President Carlos
Fuerte by telephone. The Vatican also asked for clemency in a letter to
the board, officials said.
The board had voted the same way earlier in the day.
Villafuerte's case marked the 2nd time in 8 days that
a foreigner was executed in the United States despite opposition by the
Paraguayan national Angel Francisco Breard, 32, died
by lethal injection in Virginia for the 1992 murder of a woman.
Villafuerte had appealed based in part on the fact
that the Honduran consul was not notified when he was arrested.
On Tuesday Honduran officials unsuccessfully pressed
their request that the execution be halted because state officials
ignored an international treaty.
The U.S. State Department acknowledged in a letter
that Arizona officials did violate the Vienna Convention on Consular
Relations. However, the letter, released on Tuesday, did not urge that
the execution be stopped.
Villafuerte, whose victim died from asphyxiation after
she was bound and gagged in his Phoenix trailer, also sought
reconsideration based on a new witness that he claimed could shed new
light on the case.
His execution stirred concern about an American
backlash, prompting the U.S. Embassy in Honduras to seek and receive
protection Tuesday from riot police.
Chants of "Gringo trash, get out of
Honduras" were heard outside the embassy as about 100 women staged
a peaceful demonstration before the execution. Gringo is a pejorative
word sometimes used to describe Americans.
Villafuerte spent his last hours meeting with Honduran
officials and his attorney.
Villafuerte was sentenced to die for murdering Amelia
Schoville, whom prosecutors said was viciously beaten, tied up and later
died. They have said the 47-year-old succumbed after gagging on cloth
stuffed in her mouth.
Her hands were tied behind her back, her thumbs were
tied together with shoe laces and her head was wrapped in long underwear
and bloody bedding, prosecutors said.
Villafuerte was arrested by deputies in February 1983,
found sleeping in a dry river bed near Schoville's car.
Villafuerte, 45, was sentenced to die by lethal injection for
the 1983 slaying of Amelia Schoville, a 47-year-old woman
whom Villafuerte called his girlfriend.
She was found bound and
beaten in his Phoenix trailer, dead from asphyxiation after gagging on a
bed sheet stuffed down her throat. Her hands were tied behind her back,
her thumbs were tied together with shoe laces and her head was wrapped
in long underwear and bloody bedding, prosecutors said.
Villafuerte was found
sleeping in a dry river bed near Schoville's car a day after he said
they fought in the trailer. One of Schoville's sons, however, said
Villafuerte should have been put to death years ago. Rick Schoville, of
Phoenix, said the latest legal attempts are a joke: "I feel that he has
tried to make a mockery of the system this whole time."
United States Court
142 F.3d 1124
97 Cal. Daily Op. Serv. 2964, 98 Daily Journal
Jose Roberto VILLAFUERTE, Petitioner-Appellant,
Terry STEWART, in his capacity as Director of the Arizona
Department of Corrections;
and Grant Woods,
Attorney General of the State of
April 20, 1998.
THOMPSON and T.G. NELSON, Circuit Judges.
Arizona death row inmate Jose
Roberto Villafuerte has filed a petition, pursuant to 28 U.S.C. §
2244(b)(3), for an order of this court authorizing him to file a
successive petition for writ of habeas corpus in the district court.
For a description of the crime and prior proceedings, see
Villafuerte v. Stewart, 111 F.3d 616 (9th Cir.1997), and State v.
Villafuerte, 142 Ariz. 323, 690 P.2d 42 (1984).
Section 2244(b) requires the
dismissal of claims not presented in prior petitions unless they
rely on either a new rule of constitutional law or a showing of
actual innocence. Claiming to meet these requirements, Villafuerte
proposes to raise three issues in the district court, if authorized
to do so:
1. Violation of Villafuerte's
rights under the Vienna Convention on Consular Relations, April 24,
1963, 21 U.S.T. 77.
2. Lack of a fair hearing on his
second petition for Post-Conviction Relief due to the racial bias of
the judge; and
3. Newly discovered evidence
providing a basis to assert his actual innocence.
We will address each proposed
issue in turn.
A. The Vienna Convention
It is undisputed that Arizona
officials did not notify Villafuerte of his right to consult with
officials of the Honduran consulate when he was arrested in February,
1983. This omission arguably violated the terms of the Vienna
Convention on Consular Affairs, 21 U.S.T. 77. So far as relevant
here, Article 36 of the Convention requires a detaining state to
inform a detained foreign national of his right to consult with
It also requires the detaining
state, if requested by the prisoner, to inform consular officials of
the arrest and detention, and to allow consular officials to visit
and consult with the prisoner. (See concurring opinion of Judge
Butzner in Breard v. Pruett, 134 F.3d 615, 621-22 (4th Cir.), cert.
denied, --- U.S. ----, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998), for
the terms of Article 36 of the treaty.)
Villafuerte contends that this
claimed breach of the Convention is properly the subject of his
proposed habeas petition. The Supreme Court of the United States
recently rejected a similar argument by a Paraguayan national
sentenced to death in Virginia, on the basis that the claim was
procedurally defaulted by the petitioner's failure to raise it in
state court. Breard v. Greene, --- U.S. ----, 118 S.Ct. 1352, 140
L.Ed.2d 529 (1998).
Villafuerte attempts to
distinguish his claim from Breard's by pointing out that he did
present this claim to the courts of Arizona. Villafuerte did present
this claim to the courts of Arizona, but not until his third Post-Conviction
Relief (PCR) petition, filed February 26, 1998. The claim is clearly
procedurally defaulted, and the Arizona Superior Court so held in
rejecting the claim on April 1, 1998.
However, procedural default is not
the hurdle this claim stumbles over. 28 U.S.C. § 2244 requires the
dismissal of claims not presented in prior habeas petitions unless
one of two enumerated exceptions ("gateways") is found to exist.
Villafuerte's proposed claim would have to come within §
2244(b)(2)(A) as a "new rule of constitutional law made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable, ..."
As the Supreme Court pointed out
in Breard, the Convention has been in effect since 1969. If we were,
for the sake of argument, to equate rights under the treaty to
rights under the Constitution, those rights are certainly not new
nor "previously unavailable." This proposed claim cannot pass
through the "new rule" gateway of § 2244 and must be rejected. Nor
does the failure to inform Villafuerte of his Vienna Convention
rights meet the requirements of § 2244(b)(2)(B).
B. Judge Goodfarb
Villafuerte's second PCR petition
in state court was heard by Superior Court Judge Stanley Z. Goodfarb.
After Judge Goodfarb filed a 65-page order denying relief to
Villafuerte, Villafuerte moved to disqualify him on the basis that
he was prejudiced in favor of John Rood, Villafuerte's trial counsel,
who was the subject of claims of ineffective assistance of counsel.
The motion was referred to another
judge of the court, who denied it and sent the case back to Judge
Goodfarb. The Arizona Supreme Court denied review of Judge
Goodfarb's order, without comment. On Villafuerte's prior appeal, we
affirmed the district court's denial of relief on that claim.
Villafuerte, 111 F.3d at 632.
The Arizona Supreme Court
suspended Judge Goodfarb in August of 1994 for using a racial
epithet and profane comments. Matter of Goodfarb, 179 Ariz. 400, 880
P.2d 620 (1994). Villafuerte's counsel brought the suspension to our
attention in a supplemental brief filed just prior to oral argument,
asking us to take judicial notice as further proof of Judge
Goodfarb's bias. We declined to consider the issue. Villafuerte, 111
F.3d at 633.
Villafuerte's proposed new claim
is that Judge Goodfarb was a racist, he was therefore biased against
Villafuerte, and therefore Villafuerte was denied due process in his
state PCR proceeding. He has offered no proof that Judge Goodfarb
was a racist, other than the Matter of Goodfarb decision, even
though he has had since August 30, 1994, in which to investigate.
Matter of Goodfarb involved the
judge's use of profanity on several occasions, and the use of the
term "fucking niggers" on one occasion in an unrelated case. The
Arizona Supreme Court specifically noted the finding by the Arizona
Commission on Judicial Conduct that the racial slur had "occurred
more than four years before the hearing and no comparable incident
had since been reported to the Commission." 880 P.2d at 621.
Villafuerte seeks to present this
claim through the second "gateway" provided by § 2244(b)(2). To
qualify for relief under this section, the claim must rely on a
factual predicate that "could not have been discovered previously
through the exercise of due diligence;" and "the facts underlying
the claim, if proved and viewed in the light of the evidence as a
whole, would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
The minimal showing of Judge
Goodfarb's claimed bias has nothing to do with Villafuerte's actual
innocence of the crime. The evidence of Villafuerte's guilt, while
not overwhelming, was certainly sufficient to support the verdict. A
showing that, on one occasion, Judge Goodfarb used a racial epithet
does not add to or subtract from the evidence of Villafuerte's guilt.
Certainly it does not demonstrate, by clear and convincing evidence,
that Villafuerte is actually innocent of the crime for which he
stands convicted. This proposed claim does not present a prima facie
showing of actual innocence as required by § 2244(b)(3)(C) and must
C. Newly Discovered Evidence
Villafuerte told the police and
his lawyer that he had bound the victim and left her in the trailer.
"Robert" and "Fernando" and perhaps one other person were there when
he left, according to one version of his story. (See 111 F.3d at
625, n. 4 for another.) He claimed to have asked them to release the
victim when she had calmed down.
Attempts by the police and
Villafuerte's lawyer to locate the people were hampered by
Villafuerte's refusal to provide descriptions of them. Ultimately,
they were not found, and so did not testify at trial.
Prior to the hearing on his second
PCR petition, an investigator working for Villafuerte's lawyer found
Robert Grady in prison in California. Grady spoke to her about
events generally surrounding his knowledge of Villafuerte, but
refused to give her a written statement. Grady did not testify by
deposition or in person at the hearing on the second PCR and the
investigator's proffered hearsay statement was rejected at that
On April 15, 1998, Robert Grady
signed an affidavit in Florida. In it he acknowledged living in a
trailer park near Villafuerte for a time in 1983. He said that
Villafuerte was having a consensual sexual relationship with the
victim, and that she at times lent Villafuerte her car. He also said
"In 1983, I was a transient with no known address and spent much
time hitchhiking across the country."
As with the second claim,
Villafuerte seeks to get this claim through the actual innocence
gateway of § 2244. The 1998 Robert Grady statement was never
presented at trial, but not because of anything wrong done by
Villafuerte's lawyer, or the police, or the prosecution. He was
simply not available. When Grady was located prior to the hearing on
the second PCR petition, Villafuerte's counsel did not try to
arrange for his appearance at the hearing or depose him or otherwise
try to preserve his testimony for use in that proceeding. There is
nothing in the record to show a trial error by anyone associated
with the case.
Villafuerte's problem is a basic
one under the statute: He has not shown, or even attempted to show,
a constitutional error, as it requires. The Grady evidence was not
presented at trial due to Grady's peripatetic lifestyle, but not as
a result of an error of any kind, much less constitutional error.
This claim does not meet the actual innocence standard of §
Even if the Grady testimony could
be considered, it does not provide a prima facie showing of actual
innocence. While it would perhaps corroborate the existence of
Robert and Fernando, it does not provide a potential showing, by
clear and convincing evidence, of Villafuerte's innocence. Central
to Villafuerte's story was his contention that Roberto and Fernando
were there when he left and therefore must have bound her in the
manner that led to her death. Grady's affidavit is totally silent on
this critical factor.
The petition for authority to file
a successive petition for writ of habeas corpus in the district
court and the motion for a stay of the execution are DENIED.