1 Lackey v. Scott, 28 F.3d 486 (5th Cir. 1994).

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 95-50267 

_____________________________________

CLARENCE LACKEY,

Petitioner-Appellee,

VERSUS

WAYNE SCOTT,

Respondent-Appellant.

______________________________________________________

Appeal from the United States District Court

for the Western District of Texas

______________________________________________________

(April 26, 1995)

Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:

The State of Texas appeals and moves to vacate the stay

imposed by the district court on the execution of Clarence Lackey,

a Texas death row inmate. The district court stayed the execution

on the basis that reasonable jurists would disagree on the

application of the abuse-of-the-writ doctrine, and the

nonretroactivity doctrine, to Lackey's second habeas petition and

on the merits of Lackey's claim. Because, as we have previously

held,1 the nonretroactivity doctrine bars Lackey's claim, we vacate

the stay.
2

BACKGROUND

Lackey beat, kidnapped, and murdered Diane Kumph on July 31,

1977. Lackey was arrested, convicted of capital murder, and

sentenced to death. Although the Texas Court of Criminal Appeals

reversed his conviction, Lackey v. State, 638 S.W.2d 439, 476 (Tex.

Crim. App. 1982), Lackey was again convicted and sentenced to

death. The Court of Criminal Appeals ultimately affirmed his

conviction on rehearing. Lackey v. State, 819 S.W.2d 111, 136

(Tex. Crim. App. 1989).

In his first federal habeas petition in this court, Lackey

argued that executing him after his lengthy incarceration would

constitute cruel and unusual punishment under the Eighth Amendment.

In particular, Lackey argued that "executing him after his lengthy

incarceration 'makes no measurable contribution to accepted goals

of punishment' [and that] the addition of the death penalty to his

lengthy incarceration is 'grossly out of proportion to his isolated

act.'" Lackey v. Scott, 28 F.3d 486, 492 (5th Cir. 1994) (quoting

Appellant's Opening Brief at 42), cert. denied, 115 S. Ct. 743

(1995). We refused to consider his argument for two reasons:

"First, Appellant raises these arguments for the first time on

appeal. Second, granting Lackey the relief he seeks would require

us to create a new rule." Id. (citation omitted). 

Lackey's second federal petition also asserts that his

execution after his lengthy incarceration on death row would

constitute cruel and unusual punishment under the Eighth Amendment.

His present claim specifically targets the alleged procedural
2 The parties and the district court misconstrue our recent

decision in James v. Cain, No. 95-30354, 1995 U.S. App. LEXIS 8825

(5th Cir. Apr. 17, 1995). In that case, because we determined that

reasonable jurists would not debate James's failure to show cause

in his successive petition, we denied his application for a

certificate of probable cause (CPC). Id. at *22-*23. Without a

CPC there could be no appeal so we denied the stay. In this case,

the district court applied the reasonable jurist standard in

determining whether to grant a stay. The reasonable jurist

standard, however, is the inquiry in determining whether to grant

a CPC.

3 Lackey contends that executing him after a lengthy

incarceration, allegedly caused by the State's procedural default,

would either be considered cruel and unusual by the Framers of the

Constitution or violate the common decency standards of modern

American society. See Ford v. Wainwright, 477 U.S. 399, 405-06

3

default of the State as the cause for violation of his Eighth

Amendment rights. As the district court put it: "Debatably, that

which is truly 'new' . . . is the added emphasis on 'who is to

blame' for the bulk of the time he has spent on death row." Lackey

v. Scott, MO-95-CA-68-F, slip op. at 17 (W.D. Tex. Apr. 21, 1995).

The Court of Criminal Appeals denied this same claim. Ex parte

Lackey, Writ No. 24,267-02 (Tex. Crim. App. Mar. 1, 1995), cert.

denied, 63 U.S.L.W. 3705 (Mar. 27, 1995). The district court

stayed Lackey's execution, which is scheduled for April 28, 1995.

DISCUSSION

We review a stay imposed under 28 U.S.C. § 2251 for abuse of

discretion. Delo v. Stokes, 495 U.S. 320, 322 (1990). A federal

court may stay an execution based on a second or successive federal

habeas petition only when substantial grounds exist upon which

relief may be granted.2 Id. at 321.

As we have already decided in this case, Lackey's claim

invokes the nonretroactivity doctrine.3 Federal courts are barred
(1986).

4

from applying new constitutional rules of criminal procedure

retroactively on collateral review. Teague v. Lane, 489 U.S. 288,

310 (1989). Teague prohibits application of a new procedural rule

to a conviction that was final before the rule's creation. The

nonretroactivity doctrine applies equally to a novel application of

an old rule. Stringer v. Black, 112 S. Ct. 1130, 1135 (1992).

Neither of Teague's two narrow exceptions apply to Lackey's

claim. The first concerns primary, private, individual conduct

that is a substantive due process right; the second concerns

procedures implicit within ordered liberty that significantly

improve factfinding. Teague, 489 U.S. at 311-12. The new rule

that Lackey seeks would neither place certain primary conduct

beyond prohibition nor apply to factfinding.

 The district court held that reasonable jurists would debate

whether Teague applies to this case because Lackey could not have

raised this claim on direct review. Nevertheless, Lackey's claim

attacks the punishment judgment imposed by the trial court. He

claims the State's procedural delay caused the Eighth Amendment

violation. The Supreme Court requires nonretroactivity on

collateral review because the finality of a state criminal judgment

promotes deterrence. Teague, 489 U.S. at 309. The Court has not

carved out any exceptions to Teague other than two narrow ones.

Last time we held that we could not grant Lackey relief

because to do so would require us to create a new rule. Lackey v.
4 In other words, assuming without deciding that Lackey's petition

is not an abuse of the writ and that it would succeed on the

merits, the district court could not enter a stay because the

nonretroactivity doctrine bars Lackey's claim. 

5

Scott, 28 F.3d at 492. The district court held that reasonable

jurists would debate whether the grounds for relief between the

successive petitions are identical for purposes of 28 U.S.C. § 2254

Rule 9(b). We need not address the issue of identical grounds

because both claims require the same analysis under Teague. Both

claims attack the state court judgment yet arise from

postconviction facts. Consequently, Teague's nonretroactivity

doctrine bars Lackey's current claim. We conclude that the

district court abused its discretion by staying Lackey's

execution.4

 CONCLUSION

Because the nonretroactivity doctrine prevents us and the

district court from granting Lackey's petition, we VACATE the stay

imposed by the district court.