ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, August 29, 1996 TAG: 9608290066
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
DATELINE: RICHMOND
SOURCE: LAURA LaFAY STAFF WRITER
Two Virginia death row inmates came close to being executed Wednesday without the chance to challenge their death sentences in federal court.
The condemned men, Johnile DuBois of Portsmouth and Calvin Eugene Swann of Danville, were caught in a war over the interpretation of a new federal law that tightens filing deadlines for death row appeals.
The statute, part of the anti-terrorism bill signed by President Clinton on April 24, requires death-row inmates to file their federal appeals - also known as petitions for a writ of habeas corpus - within 180 days of the final denial of their state appeals. They can have an extra 30 days, if a district court judge decides they need it.
Lawyers for Attorney General Jim Gilmore opposed stays for DuBois, Swann and seven other Virginia death row inmates who had not filed within the 180-day period at the time the bill became law. In court papers, Gilmore's lawyers argued that the new restrictions were retroactive, that the inmates were therefore barred from filing federal appeals, and that they should be executed.
Federal judges across Virginia rejected the argument in eight of the nine cases and granted stays of execution. But last Thursday, U.S. District Court Judge Claude Hilton of Alexandria bucked the trend. Ruling that Gilmore's office was right, Hilton refused to grant a stay of execution or appoint a lawyer in the case of DuBois.
Although Hilton's ruling applied only to DuBois, the decision also imperiled the life of Calvin Swann, a convicted murderer from Danville. Both were originally scheduled for execution Wednesday. Swann, who was locked up in the death house at the Greensville Correctional Center with DuBois, had been granted a stay of execution. But had Hilton's decision been upheld, prosecutors could have argued that Swann's stay was no longer valid.
That didn't happen.
Late Tuesday, a panel of judges from the 4th U.S. Circuit Court of Appeals unanimously ruled that Hilton had "erred." There is no evidence that Congress intended the new statute to operate retroactively, they wrote.
Gerald Zerkin, a Richmond lawyer who has represented several death row inmates, criticized Gilmore's office for urging the state to execute inmates without federal review.
"It's a commitment to having people executed as quickly as possible regardless of the implications for even an appearance of justice," Zerkin said.
Gilmore spokesman Mark Miner would not comment on Tuesday's ruling. However, he said, his office does not intend to appeal it.
DuBois was sentenced to death for the 1991 killing of Portsmouth convenience store clerk Phillip C. Council. Swann was sentenced to die for the 1992 robbery and murder of an elderly man.
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