                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                 August 26, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           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


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that this opinion should not be published and is not precedent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


      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
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


                                           3
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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