In re Olesen

Citation: 447 F. App'x 868Docket: No. 11-4190

Court: Court of Appeals for the Tenth Circuit; November 4, 2011; Federal Appellate Court

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An original proceeding in mandamus under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. 3771(d)(3), involves Gary Olesen, son of murder victim Eva Olesen, who was killed by Douglas Stewart Carter twenty-six years prior. Carter, having confessed to the murder and sentenced to death, is currently seeking habeas corpus relief under 28 U.S.C. 2254. As the victim's representative, Olesen requests a writ of mandamus to compel the district court to: (1) reconsider its denial of the State’s motion to dismiss Carter’s remaining 2254 claims, taking into account his CVRA rights; (2) ensure he receives his rights under CVRA sections 3771(a)(3), (4), (7), and (8) in future proceedings; and (3) report to the court with a scheduling order to resolve outstanding issues by the end of 2011, should reconsideration not lead to dismissal.

The underlying 2254 action commenced on April 22, 2002, with Olesen first asserting his victims' rights on June 11, 2008, citing delays in the habeas proceedings. He continued to invoke his rights through multiple pleadings until 2011. On August 18, 2011, Carter sought a stay to exhaust new claims related to Brady and Napue violations, opposed by both the State and Olesen. On September 8, 2011, the State moved to dismiss remaining claims for failure to prosecute, supported by Olesen, who argued that the delays violated his CVRA rights. The district court denied the dismissal on October 24, 2011, recognizing delays but noting progress without addressing Olesen's CVRA rights specifically. The court also denied Carter's motion to stay and set deadlines for briefs. Olesen subsequently filed a petition for a writ of mandamus, arguing the district court failed to consider his rights, did not explain its reasoning, and did not ensure proceedings free from unreasonable delay or fairness, as mandated by the CVRA. Responses from Carter and the State have been submitted in accordance with the court's order.

Traditional standards for mandamus relief apply to CVRA (Crime Victims' Rights Act) mandamus petitions in this circuit, as established in prior cases. Despite arguments for a more lenient standard, the court is bound by precedent and cannot reconsider it without en banc review. The Supreme Court emphasizes that mandamus is a drastic remedy, to be used only in extraordinary circumstances, requiring a clear and indisputable right to the writ. A writ is inappropriate if the issue is merely an error within the district court's jurisdiction.

Mr. Olesen contends that the district court failed to address his CVRA claims regarding unreasonable delays in proceedings, despite acknowledging his assertion of rights under the CVRA. While the court did not explicitly state its reasons for the delay, it indicated that Mr. Carter's right to proceed justified it. Consequently, Mr. Olesen's claim for mandamus relief directing the district court to reconsider its order is not deemed clear and indisputable. However, the court encourages district courts to more explicitly address asserted CVRA rights in the future. Mr. Olesen also requests that the court apply factors from Barker v. Wingo to assess claims of unreasonable delay.

Key factors considered include: (1) the duration of the delay; (2) the reason behind it; (3) the victim's assertion of rights; and (4) the prejudice suffered by the victim, as referenced in Barker v. Wingo. The court acknowledges that the delay of over nine-and-a-half years is excessive, that Mr. Olesen is not at fault for this delay, he has repeatedly asserted his rights, and he has experienced prejudice due to the prolonged litigation. However, the court does not find that this delay and prejudice violate Carter's due process rights regarding his habeas case. The ongoing briefing schedule indicates that the district court is actively moving towards a resolution, and it is unrealistic to expect completion by the end of 2011 given the complexity of the issues involved. Although expressing sympathy for the delays, the court concludes it cannot declare the district court’s denial of the motion to dismiss for lack of prosecution as clearly erroneous, nor can it affirm that Mr. Olesen's right to the writ is "clear and indisputable." The petition for a writ of mandamus is denied, and Mr. Olesen is encouraged to adhere to the established briefing schedule. Additionally, the rights of crime victims and their representatives to participate in proceedings and avoid unreasonable delays are affirmed, with specific procedures outlined for any new claims in the district court.