* 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that this opinion should not be published and is not precedent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



## FILED

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 Vil larreal (“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 h is petition for federal habeas

relief. A certificate of appealability (“COA”) has been granted by1 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 ha beas 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 that3

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

executi on 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 Amend ment does not

prohibit death sentences for persons who commit their capital

crimes while younger tha n 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 c ase law foreclose

Villarreal’s arguments. Although decided well before the A tkins

decision, the Supreme Court addressed and rejected arguments

similar to Villarreal’s, namely arguments against the execution of

certain juveniles based on ev olving standards of decency and the4 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. B eazley 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 overr uling 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.