NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOE CLARENCE SMITH, Jr.,

Plaintiff

- Appellant,

v. DAVID SHINN, Director, in official capacity only; et al.,

Defendants

- Appellees. No. 20

- 17404
D.C. No. 2:20

- cv - 02012

- ROS

- JFM

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding
Submitted November 1 6 , 2021 * * Pasadena, California Before: PAEZ, CLIFTON, and OWENS, Circuit Judges.
Plaintiff Joe Smith , Jr. filed a civil rights complaint under 42 U.S.C. § 1983 alleging that his tenure of over forty

- four years on Arizona’s death row, much of it in solitary confinement, violates the Eighth and Fourteenth Amendments. He

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

NOV 16 2021
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

sought declaratory and injunctive relief prohibiting Arizona officials from imposing his execution at any point in the future. A challenge t o the imposition of the death penalty due to a plaintiff’s extended stay on death row is known as a Lackey claim, derived from Justice Stevens’ concurrence in the Supreme Court’s
denial of certiorari in Lackey v. Texas , 514 U.S. 1045 (1995). See also Allen v.
Ornoski , 435 F.3d 946, 9 56

– 57 (9th Cir. 2006) ; McKenzie v. Day , 57 F.3d 1461, 1463 (9th Cir. 1995)

. The district court dismissed Smith’s complaint for failure to state a claim with prejudice. Smith timely appealed. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district

court ’ s dismissal of Smith’s complaint under 28 U.S.C. § 1915A for failure to state
a claim. Resnick v. Hayes , 213 F.3d 443, 447 (9th Cir. 2000). We affirm the district court’s dismissal of Smith’s complaint.
We hold that the district court did not err in dismissing Smith’s complaint
based on its determination that Smith’s Lackey claim was not cognizable under § 1983. “ The Supreme Court has recogni zed that ‘ [f]ederal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas

corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871

. . . 42 U.S.C. § 1983. ’” Nettles v. Grounds , 830 F.3d 922, 9 27 (9th Cir. 2016) (en banc) (quoting Muhammad v. Close , 540 U.S. 749, 750 (2004) (per curiam) ). “Challenges to the validity of any confinement or to particulars affecting its3

duration are the province of habeas corpus; requests for relief turning on
circu mstances of confinement may be presented in a § 1983 action.” Id. The Supreme Court has “ long held that habeas is the exclusive vehicle for claims brought by state prisoners that fall within the core of habeas, and such claims may not be brought in a § 198 3 action. ” Id. (citing Wilkinson v. Dotson , 544 U.S. 74,
81

– 82 (2005) ). Smith concedes that neither our court nor any court has recognized a Lackey claim under § 1983. That said, the dispositive inquiry here is whether Smith’s Lackey claim is in “the provi nce of habeas corpus.” Id. It is. We have repeatedly
considered Lackey claims brought on habeas. See e.g. , Smith v. Mahoney , 611 F.3d 978, 998

– 99 (9th Cir. 2010) (considering Lackey claim raised on habeas and denying the petition because, pursuant to Teague v. Lane , 489 U.S. 288, 316 (1989), courts may not announce new constitutional rules on habeas review);
Allen , 435 F.3d at 957

– 58 (holding that the p etitioner’s Lackey claim was bar red by the Antiterrorism and Effective Death Penalty Act because it was raised for the first time in a second habeas petition even though the p etitioner “could have brought his Lackey claim in his first habeas petition.”); LaGrand v. Stewart , 170
F.3d 1158 , 1160 (9th Cir. 1999) (same) ; Gerlaugh v. Stewart , 167 F.3d 1222, 1223 (9th Cir. 1999) (order) (same) ; Ortiz v. Stewart , 149 F.3d 923, 944 (9th Cir. 1998) (same) , overruled on other grounds as recognized by Apelt v. Ryan , 878 F.3d 800,4

827

– 28 (9th Cir. 2017) ; see also McKenzie , 57 F.3d at 1470 ( denying an emergency stay motion and casting doubt on the petitioner’s habeas claim that “the inordinate delay in carrying out the sentence of death, regardless of any other factor, conclusively establishe [d] that [ the petitioner] has suffered cruel and unusual punishment ”).
These cases establish that a Lackey claim, like Smith’s, is in “ the province of habeas corpus” and therefore, the district court did not err in determining that Smith’s complaint failed t o state a claim because his Lackey claim was not cognizable and “may not be brought in a § 1983 action.” Nettles , 830 F.3d at 927. 1

AFFIRMED.

1 Smith’s argument that his complaint states a challenge to the method of his execution as opposed to the validity of his death sentence, is a distinction without a difference considering the relief Smith seeks. Smith’s complaint requests a declaration and permanent injunction against Defendants from ever imposing his execut ion.