The death penalty of a San Leandro man convicted of murdering his alleged rape victim 21 years ago to prevent her from testifying has been upheld by a federal appeals court in San Francisco.A three-judge panel of the 9th U.S. Circuit Court of Appeals on Wednesday rejected claims by Harvey Heishman, 62, that he didn’t receive a fair trial in Alameda County Superior Court in 1980. Heishman was convicted of murdering Nancy Lugassy, 28, with three gunshots in the front yard of the Oakland cottage where she lived on Nov. 1, 1979.He was sentenced to death for the crime of first-degree murder with the special circumstance of killing a crime witness to prevent her from testifying.At the time of slaying, Heishman faced a charge of raping Lugassy the previous July 22 and was free on bail while awaiting a preliminary hearing on Nov. 20, 1979.Heishman took his death penalty appeal to the federal court system with a habeas corpus petition after the California Supreme Court upheld his conviction and sentence in 1988.In Wednesday’s ruling, the federal appeals court upheld a decision in which U.S. District Judge Vaughn Walker of San Francisco affirmed the conviction in 1997.Heishman could appeal further for review by an 11-judge panel of the 9th Circuit and by the U.S. Supreme Court. His lawyers in the appeal were not available for comment Thursday. But Chief Assistant California Attorney General Dane Gillette said those appeals would be the final challenges available to Heishman in the lengthy death penalty appeals process in California.Gillette said, “It’s taken a long time. We agree with the decision and think it’s time to bring this case to finality.”Gillette said that if Heishman loses the remaining appeals, an Alameda County Superior Court judge could hold a hearing sometime next spring to set an execution date.Executions in California have been on hold since 2006, however, at first because of a federal lawsuit in San Jose challenging lethal injection procedures, and later because of a Marin County Superior Court lawsuit challenging public comment procedures on a revised state protocol for lethal injunctions. Gillette said the only court order currently blocking executions is a Marin County Superior Court stay, which the state has appealed to a state appeals court in San Francisco.
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