Villarreal v. Dretke

* Pursuant to 5th Cir. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 26, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 03-20248
RAUL OMAR VILLARREAL,
Petitioner-Appellant,
VERSUS
DOUGLAS DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(02-CV-1975)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant, Raul Omar Villarreal (“Villarreal”) is a Texas
state death penalty inmate. Villarreal is appealing the decision
of the United States District Court for the Southern District of
Texas, Houston Division, denying his petition for federal habeas
relief. A certificate of appealability (“COA”) has been granted by

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1 The district court did not grant Villarreal a COA on any
other claims, including Villarreal’s ineffective assistance of
counsel claim; further Villarreal has not requested an expansion
of the COA granted by the district court and we do not grant any
additional COA to Villarreal. In summary, we reject all other
claims made by Villarreal.
2
the district court on the one issue Villarreal is now appealing,
which is whether it is a violation of the Eighth Amendment’s
prohibition against cruel and unusual punishment to execute
Villarreal, a defendant who committed the crime for which he was
sentenced to death while he was under 18 years of age.1
The procedural history of the case is as follows. In June of
1993, Villarreal was convicted and sentenced to die for the offense
of murdering 14 year-old Jennifer Ertman by strangulation.
Villarreal was 17 when he committed the crime. The Texas Court of
Criminal Appeals affirmed Villarreal’s conviction and sentence.
The United States Supreme Court denied certiorari review. The
Texas court later denied relief on Villarreal’s state habeas
petition. On April 1, 2002, Villarreal filed a federal petition
for writ of habeas corpus. On February 14, 2003, the United States
District Court issued a memorandum opinion and order granting
summary judgment in favor of the Director, denying habeas relief
and dismissing Villarreal’s writ petition with prejudice. The
district court also granted COA on Villarreal’s “Eighth Amendment
claim and the associated issue of procedural bar.”
Concerning the Eighth Amendment, Villarreal argues that

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3
international law and evolving standards of decency dictate that
executing an individual sentenced for a crime committed while under
the age of 18 is cruel and unusual punishment. More specifically,
Villarreal argues that the United States Supreme Court in Atkins v.
Virginia, 536 U.S. 304 (2002), recognized that evolving standards
have changed regarding the death penalty and accordingly held that
execution of the mentally retarded constitutes cruel and unusual
punishment and that the rationale of the Atkins decision dictates
that his execution also be found unconstitutional.
In response the Director argues that Villarreal failed to
present his Eighth Amendment claim to the state courts and,
therefore, the district court correctly found the claim unexhausted
and procedurally defaulted. The Director also argues that the
district court correctly held that the Eighth Amendment does not
prohibit death sentences for persons who commit their capital
crimes while younger than 18 and, therefore, there was no
underlying constitutional violation and Villarreal’s claim remains
defaulted.
As the district court noted in its memorandum and order, both
the Supreme Court’s and our Circuit’s case law foreclose
Villarreal’s arguments. Although decided well before the Atkins
decision, the Supreme Court addressed and rejected arguments
similar to Villarreal’s, namely arguments against the execution of
certain juveniles based on evolving standards of decency and the

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4 G:\death penalty\03-20248.opn.wpd
mental capacity of juveniles in Stanford v. Kentucky, 492 U.S. 361
(1989). This decision has not been overruled and Villarreal’s
arguments fall within the Stanford holding. Likewise, this Circuit
has also rejected claims similar to Villarreal’s arguments, namely
the international law arguments. Beazley v. Johnson, 242 F.3d 248
(5th Cir.), cert denied, 534 U.S. 945 (2001).
Further, we also agree with the district court that there is
nothing in the Supreme Court’s Atkins opinion overruling or
changing Stanford and any application of Atkins or the rationale
employed by the Supreme Court in Atkins to Villarreal’s petition is
a decision only the Supreme Court can make. Accordingly, we affirm
the district court’s grant of summary judgment and denial of
habeas relief to Villarreal essentially for the reasons stated in
the district court memorandum and order.
AFFIRMED.

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