APPELLATE COURT OKS EXECUTION.

Byline: Bob Egelko Associated Press 

A federal appeals court Thursday approved the execution of a convicted triple murderer from Southern California who has failed to file a federal appeal - because, a defense lawyer said, the man is a ``walking vegetable.''

In a 2-1 ruling, the 9th U.S. Circuit Court of Appeals said Horace E. Kelly's case must be dismissed and his stay of execution lifted because he did not appeal within the one-year deadline set by a new federal law.

The court said Kelly's mental state was irrelevant because his lawyers could have challenged his conviction and sentence without his assistance. It will be relevant only if a judge or jury finds that he is too insane to be executed, the court said.

Kelly, 37, is the first California Death Row inmate caught by the deadline in the April 1996 federal law, which requires federal appeals - technically, petitions for habeas corpus - to be filed within a year.

He is under two death sentences, in San Bernardino and Riverside counties, for murders within a six-day period in 1984.

He was convicted of fatally shooting Sonia Reed after an attempted rape on a San Bernardino street in November 1984, of fatally shooting Ursula Houser after a robbery and attempted rape in a San Bernardino alley a day later, and of murdering 11-year-old Danny Osentowski in Riverside five days after that. According to court records, Kelly was holding a gun to a 13-year-old girl's head when the boy, her cousin, kicked him, enabling her to run away.

The state Supreme Court upheld the death sentences in unanimous rulings in 1990 and 1992. Defense lawyer Eugene R. Grace said the reason no new appeal has been filed since then is that Kelly is mentally incompetent to assist his lawyers.

Without Kelly's help, lawyers cannot determine what he told his trial lawyer about his childhood and mental health and whether the lawyer acted competently, Grace said.

He said U.S. District Judge Terry Hatter of Los Angeles had put all proceedings on hold - including the filing of an appeal - until after a hearing, scheduled next month, on Kelly's competence. The appeals court majority disagreed, saying an appeal could have been filed.

Grace said a further appeal is likely, seeking a rehearing from an 11-judge panel. Kelly's execution will remain on hold during the appeal.

Deputy Attorney General Dane Gillette said a defendant's mental competence, essential for a trial, is beside the point in a voluntary proceeding such as habeas corpus, a post-conviction challenge to a prisoner's conviction or sentence.