Tuesday, January 25, 2005
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Ninth Circuit Denies Rehearing to Septuagenarian Who Could Face Lethal Injection This Year
By a MetNews Staff Writer
A 75-year-old Fresno man faces execution after the Ninth U.S. Circuit Court of Appeals denied his bid for panel rehearing or en banc rehearing of a decision upholding his sentence for the murders of three witnesses to crimes committed by a robbery ring of which he was in charge.
Jurors in Glenn County convicted Clarence Ray Allen in 1982 of ordering the killings from Folsom State Prison, where he was serving time for an earlier murder. The California Supreme Court upheld the sentence in 1986; a federal habeas corpus petition was denied in a ruling by a Ninth Circuit panel last May.
In a brief order yesterday, the court said the three-judge panel—Judges Kim M. Wardlaw, Susan Graber, and Richard Clifton—had rejected the petition for rehearing and that no active judge of the court had called for a vote on rehearing en banc. The court also declared that it would not entertain any further petitions from Allen, meaning that the U.S. Supreme Court, which denied review of the ruling on direct appeal in 1988, is his last place to seek judicial recourse.
The Ninth Circuit panel agreed that Allen’s trial lawyer had rendered substandard performance in failing to present a case in mitigation. But it agreed with the other courts that had heard the claim that there was no prejudice because there would not have been enough evidence to overcome the strong evidence in aggravation, given the visciousness of the killings, the fact that they were part of a conspiracy which included plans to murder four other people, and the defendant’s past criminal history.
It was “not reasonably probable that even one juror would have held out for a life sentence over death,” Wardlaw wrote. Wardlaw added that, “If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted.”
Allen’s appellate lawyer, Michael Satris, was not immediately available yesterday for comment. When the panel decision was handed down, he told The Recorder, a San Francisco legal newspaper, that the panel was wrong to have conducted a hypothetical penalty phase by weighing evidence the jury never got to hear.
The case is Allen v. Woodford, 01-99011.
The man convicted of carrying out Allen’s murder orders, Billy Ray Hamilton, is also on death row. Hamilton, a convicted murderer paroled from Folsom in 1980, was sentenced to death for killing three employees of a Fresno market which Allen’s former security business had burglarized.
Prosecutors said Hamilton, now 55, was following Allen’s orders when he killed Bryon Schletewitz, Douglas Scott White and Josephine Rocha.
Copyright 2005, Metropolitan News Company