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National Crime Victim Law Institute

In re Olesen, No. 11-4190, 2011 WL 5357631 (10th Cir. Nov. 4, 2011) (slip copy).

November 11, 2011

The petitioner-victim initiated a mandamus proceeding, requesting that the Tenth Circuit direct the district court assigned to the habeas proceedings brought by the man convicted of murdering his mother to: 1) reconsider the petitioner-victim’s motion to dismiss defendant’s remaining habeas claims, in light of the petitioner-victim’s rights under the Crime Victims’ Rights Act, 18 U.S.C. § 3771 (CVRA); 2) afford petitioner-victim his CVRA rights not to be excluded from public court proceedings, to be reasonably heard, to proceedings free from unreasonable delay, and to be treated with fairness and respect for the victim’s dignity and privacy in all future proceedings; and 3) avoid further delay and present a scheduling order to resolve the remaining habeas-related issues by the end of the year, if the district court’s reconsideration of the petitioner-victim’s motion does not result in a dismissal of defendant’s petition.  Defendant’s habeas action began in the district court in 2002 and has been subject to delays not initiated by the petitioner-victim.  Although the Tenth Circuit acknowledged the petitioner-victim’s repeated assertion of his rights and agreed with the petitioner-victim that a “more than nine-and-a-half year delay is too long,” it held that it was bound by prior precedent to apply the “traditional standards for obtaining mandamus relief,” invoking this remedy “only in extraordinary situations.”  The court recognized that the district court did not specifically address the petitioner-victim’s claims, as it merely acknowledged that the petitioner-victim had asserted his CVRA rights.  As the court concluded, because the district court acknowledged the petitioner-victim’s filing, albeit obliquely, the petitioner-victim’s right to mandamus relief is not clear and indisputable.  “In so ruling,” however, the Tenth Circuit encouraged “district courts when confronted with a CVRA motion to do more than simply acknowledge the assertion of CVRA rights and to expressly address the rights asserted.”  With respect to the petitioner-victim’s argument regarding unreasonable delay, the court found the question to be “close” but ultimately concluded that the prejudice and delay experienced by the petitioner-victim did not “overcome [defendant’s] due process right to have his habeas case decided,” in light of the fact that the briefing schedule set by the district court ensures that the habeas action “will soon be concluded by a final ruling by the district court.”  The court denied the petition for a writ of mandamus.

*NCVLI will be filing an amicus brief in support of a petition for an en banc rehearing.