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Classification: Murderer
Characteristics: Rape - To avoid arrest
Number of victims: 1
Date of murder: June 8, 1978
Date of birth: 1936
Victim profile: Timothy Hearn, 28 (undercover police Officer)
Method of murder: Shooting
Location: Harris County, Texas, USA
Status: Executed by lethal injection in Texas on June 9, 1986
Date of Execution:
June 9, 1986
Rudy Ramos Esquivel #606
Last Statement:
Goodbye to all my friends; be cool. Thank you for being my friends. Give my love to everybody.

Rudy Ramos Esquivel

Age: 50 (42)
Executed: June 9, 1986
Education level: High school graduate or GED

On June 8, 1978, Esquivel fatally shot undercover police Officer Timothy Hearn, 28, as he attempted to arrest him and two women for possessing heroin outside a Harrisburg-area restaurant.

Esquivel, sentenced to 99 years in prison for a gang rape in 1953, had a history of burglary, robbery, abduction and assault that dated to his youth.


Court Reinstates Sentence Of Man Condemned to Death

The New York Times

June 8, 1986

A Federal appeals court today reinstated the scheduled execution Monday of Rudy Ramos Esquivel, sentenced to die for killing an undercover narcotics officer in Houston.

His lawyers appealed the ruling, by the United States Court of Appeals for the Fifth Circuit, to the United States Supreme Court.

The appeals court, in New Orleans, reversed a ruling Friday by Federal District Judge Carl Bue, who granted Mr. Esquivel's request for a stay of execution. Mr. Esquivel, who says he was framed, sought more time for his lawyers to prepare evidence to support their assertion that Hispanic Americans were improperly excluded from the jury at his trial.

Earlier Friday, the Texas Court of Criminal Appeals refused to block Mr. Esquivel's execution, saying his assertions on the jury were without merit.


580 F.2d 814

Rudy R. Esquivel, Petitioner-appellant,
W. J. Estelle, Jr., Director, Texas Department Of Corrections,

No. 74-2785

United States Court of Appeals,
Fifth Circuit.

Sept. 22, 1978

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

Before THORNBERRY, GOLDBERG and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

Defendant-petitioner Rudy Esquivel appeals from the district court's denial of his habeas corpus petition. Esquivel sought habeas corpus claiming that after his 1953 rape conviction he was not represented by counsel at the sentencing phase of his trial and that he was not fully informed of his right to appeal.1 The district court adopted the state court's factual findings. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Lavalle v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973); 28 U.S.C. 2254. It found that Esquivel's counsel was present during sentencing and that under Daniels v. Alabama, 487 F.2d 887 (5 Cir. 1973), Esquivel had been adequately informed of his right to appeal because the state trial judge told him that he could appeal his case. We find no merit in Esquivel's contentions and affirm the district court.

A finding that an attorney was present is a specific historical fact. The district court was bound to accept the state court's finding that Esquivel's counsel was present at the sentencing phase unless the record showed that there was an inadequate basis for that finding. Trahan v. Estelle, 544 F.2d 1305, 1315 (5 Cir. 1977) (Goldberg, J., specially concurring). See also 28 U.S.C. 2254(d)(8).

The state habeas court heard both Esquivel's testimony and that of two former district attorneys. One of the district attorneys did not remember whether the defense attorney was present. The other assistant district attorney, Mr. Cahoon, testified that Esquivel's attorney was present. Cahoon also gave evidence that in potential capital cases, such as Esquivel's, there was an established practice in Harris County of having the defense attorney present at the sentencing.

The federal habeas court, with due regard for the seriousness of the petitioner's contentions, made an effort to uncover old newspaper reports that might have shown whether the defense attorney was present at the sentencing. None were available. The legal destruction of the state court records proved another impediment to resolution of this issue. The state habeas court gave the petitioner a full opportunity to present his claim. On the record before us we cannot say that there was any inadequacy underlying the state court's determination that counsel was present or in the district court's adoption of that factual finding.

We also reject Esquivel's argument that he was not adequately informed of his appeal rights. This court recently held in Bonds v. Wainwright, 5 Cir. 1978, 579 F.2d 317, that the standard announced in Lumpkin v. Smith, 439 F.2d 1084 (5 Cir. 1971), which spelled out the information that must be imparted to an indigent defendant by an appointed counsel does not apply retroactively. Rather we review convictions prior to Lumpkin's finality under the then prevailing standard. Bonds, supra 579 F.2d at 321.2

The standard prevailing at the time of Esquivel's conviction required that an appointed attorney tell his client that the client had a right to appeal. Bonds, supra at 320. It did not require more. The district court found that the state trial judge told Esquivel that he had a right to appeal. Although the state trial court was not required to so inform Esquivel, Loter v. Estelle, 546 F.2d 151 (5 Cir. 1977), we think that the information it gave him is sufficient to bar habeas relief. We have previously held that a defendant who takes a state coram nobis writ, which is treated as a statutory appeal, may not claim a sixth amendment deprivation because his counsel did not tell him that he had a right to appeal. Haggard v. Alabama, 550 F.2d 1019 (5 Cir. 1977). The fact that the state trial court informed Esquivel of his right to appeal reduces the default, if any, of his appointed counsel to harmless error. We affirm the district court's denial of habeas corpus.




Esquivel was represented at his state trial by an appointed attorney who is now dead. No appeal was taken. Twenty years later Esquivel sought state habeas relief. The state court originally denied the petition without a hearing. The Texas Court of Criminal Appeals remanded the case to the state district court for a hearing. After the state court had made specific factual findings, the Texas Court of Criminal Appeals denied Esquivel's petition without an opinion


Lumpkin thus applies only to convictions final after March 17, 1971


777 F.2d 956

Rudy Ramos Esquivel, Petitioner-appellant,
O.L. Mccotter, Director, Texas Department of Corrections, respondent-appellee

United States Court of Appeals,
Fifth Circuit.

Nov. 19, 1985

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

Before REAVLEY, POLITZ, and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Under capital sentence for the murder of a police officer, Texas state prisoner Rudy Ramos Esquivel appeals the denial of his petition for habeas corpus, 28 U.S.C. Sec. 2254. Being in full accord with the trial court's ruling, we affirm.

Esquivel was indicted in 1978 for the murder of Houston police officer Timothy Hearn during an incident in which Esquivel also wounded Hearn's partner, officer Murry Jordan. Esquivel pleaded self-defense and presented witnesses in support of that claim. The jury convicted him and sentenced him to death. The Texas Court of Criminal Appeals, en banc, affirmed the conviction and sentence, 595 S.W.2d 516 (1980), and the Supreme Court denied certiorari, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). Esquivel sought post-conviction review in the Texas courts and, after an evidentiary hearing, was denied relief.

With state remedies exhausted, Esquivel invoked 28 U.S.C. Sec. 2254 seeking a federal writ of habeas corpus. After a hearing before a magistrate, the district court denied the writ but granted a certificate of probable cause.

On appeal Esquivel claims that his trial was constitutionally infirm because the state trial judge would not permit his counsel to interrogate prospective jurors during voir dire as to their understanding of the words "deliberately" and "probability" as used in Tex.Code Crim.Proc.Ann. art. 37.071(b)(1) & (2) (Vernon 1981).1 We recently addressed that contention and held contrary to the position now urged by Esquivel. Our holding in Milton v. Procunier, 744 F.2d 1091 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2050, 85 L.Ed.2d 323, reh. denied, --- U.S. ----, 105 S.Ct. 2667, 86 L.Ed.2d 283 (1985), resolves this issue and forecloses this argument. Esquivel's trial was not fatally tainted by the challenged cabining of the voir dire examination.

Esquivel's second claim is that the Texas death-penalty scheme does not pass constitutional muster because it fails to provide the jury with adequate guidance in its consideration of mitigating circumstances. It cannot be gainsaid that to be constitutional a death-penalty statute must permit a jury to consider mitigating factors during the penalty phase of a capital trial. Esquivel's argument that the Texas statute, generally, and the procedure followed in his trial, in particular, contravened the Constitution ignores controlling precedent and the record of this case. The Texas statute was reviewed and approved by the Supreme Court. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). On the fact side of the ledger, it appears certain that the jury did consider the mitigating self-defense factors Esquivel now advances. As required by Tex.Code Crim.Proc.Ann. art. 37.071(b)(3) (Vernon 1981), during the sentencing phase the jury was asked "whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, of the deceased." The jury answered that inquiry adverse to Esquivel.

Esquivel seeks to buttress and shield his argument by maintaining that in the absence of detailed instructions guiding its consideration of mitigating factors, a jury will be disposed to focus improperly on aggravating factors. This argument is foreclosed by Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), wherein the Supreme Court held that the Constitution does not require trial judges to guide jury consideration of aggravating and mitigating circumstances by specifically instructing jurors on how to balance those circumstances. See also id. at 893, 103 S.Ct. at 2751, 77 L.Ed.2d at 260 (Rehnquist, J., concurring in the judgment); see generally Weisberg, Deregulating Death, 1983 Sup.Ct.Rev. 305 (criticizing Zant ). Zant validated our precedents in which we have found this claim to be frivolous. See e.g., Sonnier v. Maggio, 720 F.2d 401 (5th Cir.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984); Gray v. Lucas, 677 F.2d 1086 (5th Cir.1982), cert. denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 815, reh. denied, 462 U.S. 1124, 103 S.Ct. 3099, 77 L.Ed.2d 1357 (1983).

Our decision today upholding the Texas capital sentencing scheme is compelled by Jurek and Zant and is consistent with our dictum in Spivey v. Zant, 661 F.2d 464, 471 & n. 10 (5th Cir.1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982), in which we referred to Tex.Code Crim.Proc.Ann. art. 37.071(b) as providing juries with the "requisite guidance ... without explicit discussion of mitigating circumstances."

The judgment of the district court is, accordingly, AFFIRMED.



Tex.Code Crim.Proc.Ann. art. 37.071(b)(1) & (2) (Vernon 1981) provides:

(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.... (Emphasis added.)


791 F.2d 350

Rudy Ramos ESQUIVEL, Petitioner-Appellee,
O.L. McCOTTER, Director, Texas Department of Corrections,

No. 86-2411.

United States Court of Appeals,
Fifth Circuit.

June 7, 1986.

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

Before REAVLEY, POLITZ and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

This matter is before the court on the motion of O.L. McCotter, Director, Texas Department of Corrections, asking that we vacate the order entered by the district court for the Southern District of Texas on June 6, 1986, staying the execution of Rudy Ramos Esquivel scheduled for June 9, 1986. After considering the filings by the parties, the pertinent parts of the state trial record, the prior opinions of the courts, the latest order of the Texas Court of Criminal Appeals, and the oral arguments of counsel in a conference call with the court, we conclude that the trial court erred and abused its discretion in entering the stay order. Accordingly, for the reasons assigned, we vacate and annul that order.

Esquivel was sentenced to death by a jury for the murder of a police officer. His conviction was affirmed on appeal by the Texas Court of Criminal Appeals, 595 S.W.2d 516 (1980), and the Supreme Court denied certiorari, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). State habeas relief was denied after an evidentiary hearing. Esquivel then sought federal habeas relief, 28 U.S.C. Sec. 2254. Following an evidentiary hearing before a magistrate, the district court denied the writ. We affirmed. Esquivel v. McCotter, 777 F.2d 956 (5th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1662, 90 L.Ed.2d 204 (1986).

On June 5, 1986, Esquivel filed an application for stay of execution and an original application for writ of habeas corpus with the Texas Court of Criminal Appeals. He therein alleged that the State of Texas exercised its peremptory challenges in such a manner as to systematically exclude Hispanics from the jury in violation of Batson v. Kentucky, 476 U.S. ----, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), rendered by the Supreme Court on April 30, 1986. On June 6, 1986, the Texas Court of Criminal Appeals denied the stay of execution and all relief requested in the writ application declaring:

The Court is of the opinion that no prima facie showing has been made by applicant of any violation of Batson v. Kentucky, supra. Additionally, an examination of the transcript in the case reveals that no Spanish-surnamed individuals were peremptorily challenged by the State at applicant's trial.

The sole allegation of constitutional infirmity asserted by Esquivel in his present application for federal habeas relief, his second such application, is that prospective jurors of Mexican-American descent and those with Spanish surnames were excluded from the petit jury by the state's selective use of its peremptory challenges, in violation of the teachings of Batson v. Kentucky. Petitioner's counsel informs the court that this allegation is "[b]ased on information received by counsel from Jim Keegan, attorney employed by the Staff Counsel for Inmates at the Texas Department of Corrections," and on an affidavit of Esquivel filed under separate cover and not seen by counsel prior to the filing of the state and federal habeas applications. Esquivel's affidavit contains the general statement that the state struck prospective jurors with Spanish surnames. No details were given.1

The allegations in the petition and the general attestation in Esquivel's affidavit are not supported by the record of the state trial, as found by the Texas Court of Criminal Appeals, and as confirmed in an examination of the state trial transcript by a member of this panel. The state exercised 11 of its 15 peremptory challenges. None was of a person with a Spanish surname. The record reflects that all but two listed a religious preference of Protestant.2 The defendant exercised all 15 of his challenges, none having been used against a person with a Spanish surname. Just over a score of the venire members were excused for cause, either at the request of the state or of the defendant, or by the court sua sponte. Three bore Spanish surnames.

The factual finding by the Court of Criminal Appeals that no Spanish-surnamed individual was peremptorily challenged by the state is presumed to be correct. 28 U.S.C. Sec. 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

Were we to conclude that the rule of Batson v. Kentucky is to be retroactively applied to collateral federal proceedings, we would agree with the Texas Court of Criminal Appeals that Esquivel has failed to make a prima facie showing of a violation that would warrant an evidentiary hearing or any other relief. The application contains mere conclusionary allegations, supported only by compounded hearsay and by an inadequate, generalized affidavit. The application, read in the most liberal light, would be inadequate to trigger the Batson v. Kentucky rubric, if it were applicable.

Counsel's explanation that the lack of specificity in the application, as well as the speculation and surmise apparent therein, was caused by non-access to the trial transcript prior to filing the state and federal applications. That explanation is inadequate for two reasons. The record was available. The claimed non-access was actually a matter of inconvenience caused or exacerbated by geographic separation and the eleventh-hour undertaking of representation by Esquivel's present counsel. Secondly, the record belies the allegation of systematic exclusion of Hispanics by the state. No Spanish-surnamed venireman was peremptorily challenged. The three who were excused were excused for cause.

We conclude, however, that Batson v. Kentucky is not to be given retroactive application in federal habeas proceedings. Although the test for retroactive application of decisions to cases pending on direct appeal has been subject to recent modification, see Shea v. Louisiana, --- U.S. ----, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985); United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), the standard for retroactive application to cases on collateral review has remains as elucidated in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984).3

"The criteria guiding resolution of the [retroactivity] question [in collateral proceedings] implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Stovall v. Denno, 388 U.S. at 297, 87 S.Ct. at 1970.

In light of these factors, "[c]omplete retroactive effect is most appropriate where a new constitutional principle is designed to enhance the accuracy of criminal trials." Solem, 465 U.S. at 643, 104 S.Ct. at 1342, 79 L.Ed.2d at 587 (citing Williams v. United States, 401 U.S. 646, 653 & n. 6, 91 S.Ct. 1148, 1152 & n. 6, 28 L.Ed.2d 388 (1971) (plurality opinion)). The core premises of Batson are not involved with enhancing the truth-finding functions of the jury system. Batson primarily is concerned with the role of discrete minorities in the polity of the United States and with "safeguarding a person accused of crime against the arbitrary exercise of power by prosecutor or judge." Batson, --- U.S. ----, ----, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69, 81.

In support of this latter principle, the Court cites Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), which it discusses in detail in footnote 8, Batson, ------ U.S. ------, 106 S.Ct. at 1717 n. 8, 90 L.Ed.2d at 81 n. 8. . The concerns noted are with the allocation of power and function between judge and jury. Duncan was held not to apply retroactively in DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). Likewise, Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), forbidding systematic exclusion of women from jury panels, was held not to apply retroactively in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975). See Batson, --- U.S. at ----, 106 S.Ct. at 1725, 90 L.Ed.2d at 90-91 (White, J., concurring). A telling indication that Batson does not implicate the enhancement of the accuracy of criminal trials is reflected by the fact that it was decided under the equal protection clause. The Court expressly pretermitted consideration of Batson's sixth amendment claims. Id. at ---- n. 4, 106 S.Ct. at 1716 n. 4, 90 L.Ed.2d at 79 n. 4.

In considering the Stovall reliance factor, the Court has "looked primarily to whether law enforcement authorities and state courts have justifiably relied on a prior rule of law said to be different from that announced by the decision whose retroactivity is at issue." Solem, 465 U.S. at 645-46, 104 S.Ct. at 1343, 79 L.Ed.2d at 589. This test is frequently shortened to an inquiry whether the new rule is "a clear break with the past." Id. at 646, 104 S.Ct. at 1343, 79 L.Ed.2d at 589. Batson expressly overrules Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). It qualifies as "a clear break with the past" which should not be applied retroactively. Batson, --- U.S. at ----, 106 S.Ct. at 1725 n. 25, 90 L.Ed. at 90 n. 25.

The disruptive effect on the administration of justice requires scant comment. Nearly 100 of the prisoners on death row in Texas belong to recognized minorities.

Four justices expressly stated that Batson v. Kentucky should not be given retroactive effect. The other five justices did not address the issue. Applying well-settled precedent, we are persuaded that Batson v. Kentucky should be given prospective application only in federal habeas proceedings.

Esquivel's application for habeas relief is without merit. No relief may be granted. Accordingly, no stay pending consideration of habeas relief is appropriate. The order of the district court staying the execution of Rudy Ramos Esquivel is VACATED.



The entirety of the text of the affidavit declares:

My name is Rudy Ramos Esquivel, and in 1978 I was convicted in Harris County, Texas under Cause No. 280748, of Capital Murder. There were Hispanics and/or Mexican Americans on the jury panel from which the jury which tried and convicted me was selected, but all the Hispanics and/or Mexican Americans were stricken by the State. There were no Hispanics and/or Mexican Americans on the jury which tried and convicted me.


The record before us contains no information on one of the two, Emma T. Huddleston


The Linkletter-Stovall tests are not applicable to cases announcing a new rule concerning fundamental guarantees like double jeopardy or the eighth amendment's prohibitions, and limitations on capital punishment. See Jones v. Thigpen, 741 F.2d 805, 810 (5th Cir.1984)



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