The Virginian-Pilot
                             THE VIRGINIAN-PILOT 
              Copyright (c) 1996, Landmark Communications, Inc.

DATE: Thursday, August 29, 1996             TAG: 9608290416
SECTION: FRONT                   PAGE: A1   EDITION: FINAL 
SOURCE: BY LAURA LAFAY, STAFF WRITER 
DATELINE: RICHMOND                          LENGTH:   61 lines

VA. INMATES CAME CLOSE TO EXECUTION WITHOUT FEDERAL APPEALS REVIEW BUT AN APPEALS COURT SAID A JUDGE ERRED IN INTERPRETING A NEW LAW RETROACTIVELY.

Two Virginia death row inmates - one from Portsmouth - 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 dispute over a new federal law that tightens filing deadlines for death row appeals.

The statute, part of the anti-terrorism bill signed by the president 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 James S. Gilmore III 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, they 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 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 for DuBois, who was scheduled to die Wednesday at 9 p.m.

Although Hilton's ruling applied only to DuBois, the decision also affected Swann, a convicted murderer from Danville also scheduled to die 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 But had Hilton's decision been upheld, prosecutors could have argued that Swann's stay was no longer valid.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 U. S. Court of Appeals for the Fourth Circuit unanimously ruled that Hilton had erred. There is no evidence that Congress intended the new statute to operate retroactively, they wrote.

Gerald T. 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 but 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. ILLUSTRATION: Color photo

An appeals court ruled that a new 180-day limit to file federal

appeals is not retroactive to Johnile DuBois of Portsmouth, who was

sentenced to death in a 1991 killing.

KEYWORDS: DEATH ROW CAPITAL PUNISHMENT VIRGINIA

EXECUTIONS MURDER by CNB