Appeal of Gangbanger on Death Row Is Shot Down

SAN ANTONIO, Texas (CN) - A member of the Mexican Mafia who faces the death penalty for killing a drug dealer over money cannot appeal his conviction and sentence, a federal judge ruled.

In 1998, Manuel "Meme" Vasquez strangled San Antonio drug dealer Juanita Ybarra with a cord for allegedly brushing off "the dime" - a 10 percent tax on narcotic sales collected by the Mexican Mafia.

Moses Bazan was with Ybarra in a motel room when Vasquez forced himself in along with Johnny Joe Cruz and Oligario "Bebe" Lujan to carry out the kill order.

A jury in Bexar County, Texas, convicted Vasquez of capital murder in November 1999 and sentenced him to death.

After failing to find relief in state court, Vasquez petitioned for federal habeas relief.

U.S. District Judge Xavier Rodriguez rejected that petition Thursday and denied him a certificate of appealability.

Vasquez had claimed that Latinos were underrepresented in his jury, but Rodriguez disputed the attempt to identify juror ethnicity based on their last names.

Rodriguez also disagreed that defense counsel improperly failed to seek a limiting jury instruction concerning Vasquez's gang affiliation.

"With or without a limiting jury instruction, petitioner's jury was going to learn of petitioner's Mexican Mafia membership and hear Cruz's testimony regarding the reasons why petitioner and Lujan (both Mexican Mafia members) broke into Ybarra's and Bazan's motel room, fatally strangled Ybarra, very nearly killed Bazan, ransacked the room, stole valuables, and then retreated to the home of another individual with ties to the Mexican Mafia," Rodriguez wrote (parentheses in original).

Vasquez waited to challenge the wording of the jury charge for the punishment phase until he applied for state habeas corpus relief, the decision states.

"Petitioner argues, without any citation to authority, that because his trial counsel did not make a contemporaneous objection to the alleged defects contained in his punishment phase jury charge included in petitioner's final two claims herein, those complaints were not properly preserved for state appellate review and, therefore, petitioner's procedural default in failing to present those claims as part of his direct appeal should be forgiven," Rodriguez wrote. "There is, however, no legal support for petitioner's proposed 'new rule' suggesting that two state procedural defaults cancel each other out. That petitioner procedurally defaulted at trial by not timely objecting to alleged defects in his punishment phase jury charge and thereafter procedurally defaulted again by failing to present his complaints about his punishment phase jury charge on direct appeal does not transform petitioner's twice procedurally defaulted claims into claims properly subject to federal habeas review. To hold otherwise would stand the principle of procedural default on its head."

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