NOT FOR PUBLICATION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 16, 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 APPEALS
2 

sought declaratory and injunctive relief prohibiting Arizona officials from 

imposing his execution at any point in the future. A challenge to 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, 956–57 (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 recognized 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, 927 (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 its 
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duration are the province of habeas corpus; requests for relief turning on 

circumstances 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 § 1983 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 province 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 petitioner’s Lackey claim was barred 

by the Antiterrorism and Effective Death Penalty Act because it was raised for the 

first time in a second habeas petition even though the petitioner “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, 
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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 to 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 

execution.