DENVER — The 10th U.S. Circuit Court of Appeals has dismissed an appeal involving Utah death row inmate Troy Kell, declaring it did not have jurisdiction to hear it.
The federal appeals court did not even weigh in on the central issue of the case — how long it has taken to exhaust Kell’s death penalty appeals — instead ruling on a technical issue. In a split ruling, the appeals court judges essentially said that Kell had not exhausted appeals in state and federal courts and they had no jurisdiction to hear it.
“Mr. Troy Kell sought habeas relief, but he had not exhausted two of his claims in state court. The unexhausted claims created a Catch-22 for Mr. Kell, risking a dismissal of all of his claims without an opportunity to timely refile. To relieve Mr. Kell of this Catch-22, the district court entered a limited stay, halting proceedings on one of the unexhausted claims while Mr. Kell returned to state court to exhaust the claim,” wrote Judge Robert Bacharach.
Judge Bobby Ray Baldock dissented, believing the 10th Circuit could hear — and decide — Kell’s case.
“The Court further ignores salient Supreme Court precedent about the collateral order doctrine and severely understates a state’s important interest in executing its sentence of death without delay— in this case, against Petitioner Troy Kell, who brutally murdered a fellow inmate almost twenty-five years ago. For these reasons, I cannot join the Court’s opinion,” he wrote.
The 10th Circuit Court was asked to consider how long it has taken to exhaust Kell’s appeals. He is facing death by firing squad for the 1994 murder of inmate Lonnie Blackmon inside the Utah State Prison in Gunnison. Kell stabbed his fellow inmate 67 times while screaming “white power” (the victim was black). The gruesome crime was captured on video.
Kell was already serving time for another murder in Nevada.
Kell’s appeals are currently pending in federal court in Salt Lake City and before the Utah Supreme Court.
Read the opinion here: