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Jose Roberto VILLAFUERTE

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Rape
Number of victims: 1
Date of murder: February 1983
Date of arrest: February 22, 1983
Date of birth: December 2, 1952
Victim profile: Amelia Schoville, 47 (his girlfriend)
Method of murder: Asphyxiation
Location: Maricopa County, Arizona, USA
Status: Executed by lethal injection in Arizona on April 22, 1998
 
 
 
 
 
 

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 trailer.

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.

PROCEEDINGS

    Presiding Judge: Paul LaPrade
    Prosecutor:  James Minter
    Start of Trial:  July 11, 1983
    Verdict: July 18, 1983
    Sentencing: September 9, 1983

Aggravating Circumstances

    Especially cruel/depraved

Mitigating Circumstances

    None

PUBLISHED OPINIONS

    State v. Villafuerte, 142 Ariz. 323, 690 P.2d 42 (1984).

Sources

Arizona Department of Corrections "Death Row" Web site
"Profiles of Arizona Death Row Inmates," Arizona Attorney General's Office
The Arizona Republic archives

 
 

Last Meal

One broiled chicken, nine corn tortillas, two tomatoes, one can of jalapenos, two cans of Pepsi, one four-ounce plate of rice.

 
 

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 countries involved.

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.

 
 

Jose Roberto 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 of Appeals,
Ninth Circuit.

142 F.3d 1124

97 Cal. Daily Op. Serv. 2964, 98 Daily Journal
D.A.R. 4071

Jose Roberto VILLAFUERTE, Petitioner-Appellant,
v.
Terry STEWART, in his capacity as Director of the Arizona Department of Corrections;
and Grant Woods, Attorney General of the State of Arizona,
Respondents-Appellees.

No. 98-80303.

April 20, 1998.

Before: FLETCHER, 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 consulate officials.

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 offense."

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 be rejected.

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 hearing.

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 2244(b)(2).

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.

 

 

 
 
 
 
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