The future of death row inmate Ruben Gutierrez’s federal appeal over post-conviction DNA testing in the 1998 murder of Escolastica Harrison is under question as officials wait for a judge to rule on a motion to dismiss filed on Tuesday.
If Gutierrez’s federal petition were to be granted, it would halt the execution, explained Cameron County District Attorney Luis V. Saenz. “Conversely, if the defense’s federal petition gets denied, the execution would move forward,” he said.
Gutierrez was convicted of capital murder and sentenced to death for his participation in the 1998 robbery and murder of 85-year-old Escolastica Harrison at her residence in a mobile home park she owned in Brownsville. He is set to be executed on June 16.
The motion to dismiss argued the court lacks jurisdiction to grant Gutierrez any stay of execution and that he failed to demonstrate violation of due process rights under Texas law regulating post-conviction DNA testing. The complaint, the defense argued, was filed more than six years after a federal statute of limitations on post-conviction DNA testing ran out.
The issue of immunity was raised — prosecutorial in the case of Saenz and additional immunity for defendants under the 11th Amendment.
A section of Gutierrez’s complaint alleged the Texas Department of Criminal Justice failed to address a grievance requesting that a chaplain be present in the execution chamber in accordance with his Christian faith. In response, officials cited a requirement under the Prison Litigation Reform Act to exhaust all administrative remedies before Gutierrez can challenge the state’s execution procedures.
The state’s motion referenced the Rooker-Feldman doctrine, prohibiting a federal court from “entertaining collateral acts on state court judgments” — in reference to multiple appeals by Gutierrez at the state and federal levels which have resulted in the courts denying his request to test the evidence. The state has argued, in part, that DNA testing would not necessarily exonerate him.
Gutierrez was scheduled to be executed on Oct. 30 before the Court of Criminal Appeals stayed the process due to a defect in the death warrant served to the man’s lawyers. In February, CCA lifted its stay and the execution warrant signed by Judge Benjamin Euresti, Jr. of the 107th state District Court of Cameron County was successfully served.
“We continue to fight every petition they file, whether it be state or federal. We’re still hoping that justice will finally be carried out. The victim’s sister is getting older and she has mentally committed to stay alive along as it takes to see this justice be delivered for her sister,” said Saenz.