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Execution of Kelly Delayed by U.S. Court


SAN FRANCISCO — A federal appeals court issued a stay of execution Tuesday for triple murderer Horace Kelly and ordered a hearing in his case for late July.

Kelly, 38, had been scheduled to die by lethal injection July 7 for the 1984 murders of two women and an 11-year-old boy in the Inland Empire.

Last week, however, a majority of the 21 judges in the U.S. 9th Circuit Court of Appeals granted Kelly a new hearing so that an 11-judge panel can decide whether the condemned inmate has exhausted his right to federal appeals.

"We believe he has claims that are entitled to review," said David Fermino, Kelly's federal public defender. "That review has not taken place."

On Tuesday, the court scheduled a July 23 hearing and stayed the execution, ensuring that next week Kelly would not become the fifth man to die in California's death chamber since the state resumed executions in 1992.

Kelly's execution had originally been set for April 14. But in February, the warden of San Quentin State Prison declared that Kelly's sanity was in question.

That declaration set in motion a rare trial in Marin County to decide whether Kelly was competent for execution because the U.S. Supreme Court ruled in 1986 that condemned inmates who go insane on death row cannot be executed.

During a six-week trial, Kelly was described by defense psychiatrists as a gibberish-spewing crazy man who hoarded food and feces. Prosecution psychiatrists painted a picture of a man sane enough to play Tic-Tac-Toe, ask simple questions and understand his fate.

The Marin County jury found that Kelly was sane enough to die, and two later execution dates were set.

But in early June, a federal judge in Los Angeles stayed Kelly's execution so that defense claims of constitutional violations in the Marin County trial and the murder trials in San Bernardino and Riverside counties could be reviewed.

Until Tuesday, the state attorney general's office had held out a slim chance that all legal challenges to Kelly's execution could be cleared up by July 7. The appeals court stay changed that.

On July 23, the 11-judge panel will hear oral arguments about whether deadline provisions in a new federal law bar Kelly from appealing his convictions and death sentences in federal court.

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