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Dave Kolpack, Associated Press Writer, Published July 23 2010

Rodriguez files ‘last shot’ appeal

Lawyers have begun working on what is considered the final step in the legal appeals process for a convicted rapist sentenced to death for kidnapping and killing University of North Dakota student Dru Sjodin in 2003.

The case for Alfonso Rodriguez Jr. will be filed under a federal rule historically referred to as habeas corpus. The motion is separate from the original appeal and is meant to determine whether the federal government can continue to hold an inmate.

“This is going to be, in all likelihood, his last shot,” said Joseph Daly, a Hamline University law professor who has participated in death penalty appeals.

Habeas corpus motions are typically filed when a conviction becomes final. U.S. District Judge Ralph Erickson appointed defenders to the new case earlier this week even though the U.S. Supreme Court has not decided whether it will hear arguments on the appeal.

The justices are likely to decide in October whether to take up Rodriguez’s appeal. Should they decline, his lawyers will have one year to file their civil case.

“If the U.S. Supreme Court does not hear the case, then he is probably coming to the end of his avenues of appeals and motions sometime in 2012,” Daly said. “But lawyers are very creative, and (habeas corpus) gives them avenues beyond the regular appeal process.”

Sjodin, 22, of Pequot Lakes, Minn., was abducted from the parking lot of a Grand Forks shopping mall on Nov. 22, 2003, after talking with her boyfriend on her cell phone. Rodriguez, 57, of Crookston, Minn., was arrested on Dec. 1, 2003.

Sjodin’s body was discovered in a ravine near Crookston on April 17, 2004. Authorities said she was raped, beaten and stabbed. A jury sentenced Rodriguez to death on Sept. 22, 2006. It was North Dakota’s first federal death penalty case and led to tougher laws for sex offenders.

In September, Rodriguez lost his appeal with a three-judge panel of the 8th U.S. Circuit Court of Appeals in a 2-1 vote. Rodriguez asked for a hearing in front of the full circuit court, which was denied in February.

The chances of the Supreme Court taking up the appeal are “almost nil,” Daly said.

“I suppose the thought for assigning counsel now is, ‘Why not? You might as well go ahead with this.’ ”

Erickson appointed Joseph Margulies, a Northwestern University law professor, to lead the defense team. Margulies has represented several death row inmates and recently defended Guantanamo Bay detainees.

“Time is short, and the need is great,” Margulies wrote in court documents asking to be assigned the case. He did not return phone messages from The Associated Press.

Erickson authorized three federal public defenders to help with the motion, Katherine Mendez and Andrew Mohring from Minnesota and Neil Fulton from North Dakota.

Rodriguez’s trial lawyers, Richard Ney and Robert Hoy, are continuing to work on the original appeal.

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