Ashcroft says McVeigh has exhausted appeals
WASHINGTON (CNN) -- U.S. Attorney General John Ashcroft declared Thursday that convicted Oklahoma City bomber Timothy McVeigh "has exhausted his right to further appeals."
Justice Department officials said that a critical deadline for the condemned inmate to pursue additional appeals passed in December.
McVeigh has said he is ready to die and has waived his right to seek additional appeals.
If he changes his mind before his scheduled May 16 execution date, however, his attorneys may argue that McVeigh's appeals have not been exhausted.
The bomber's first round of unsuccessful appeals took nearly two years after the day he was sentenced, August 14, 1997.
A year later, September 8, 1998, a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver unanimously upheld the death sentence. The U.S. Supreme Court refused March 8, 1999 to review the ruling.
McVeigh lawyers then attempted a second round of "collateral" appeals, which may be granted but are not automatic in federal capital cases.
Last October 12, Denver trial judge Richard Matsch denied McVeigh's request for further review and gave him 60 days to seek permission to appeal.
As the deadline approached, an attorney for McVeigh said his client did not appear interested in further appeals, but he filed a "placeholder" with the 10th Circuit in case McVeigh wanted to pursue the case.
McVeigh then chose to formally waive further efforts to appeal and on December 28, 2000, appeared in court via video hookup from prison. Matsch, finding that McVeigh understood his decision, issued an order approving the waiver of appeals.
The Justice Department's position is that unless McVeigh can provide "new evidence of actual innocence" in the bombing he is not entitled to return to the 10th Circuit Court to ask for further court review of his case.
If McVeigh changes his mind and asks his attorney to take his case back to the appeals court without new evidence, federal prosecutors will argue he has no right to do so, and plans for the execution would proceed.
Ashcroft said Thursday that only a court ruling, and not simply a petition filed on McVeigh's behalf, would halt execution plans.
The Justice Department said that McVeigh could, during his last scheduled conversation with his attorney two hours before execution, request the counsel to try to file an appeal.
At 10 minutes before the scheduled time of execution, however, if no federal court has intervened, the prison warden would receive a final go-ahead for execution over an open line from the Justice Department and the White House.
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