_________________ 

_________________ 

Cite as: 558 U. S. ____ (2009) 1 

Statement of STEVENS, J. 

SUPREME COURT OF THE UNITED STATES 

No. 09–7839 (09A521) 

CECIL C. JOHNSON v. PHIL BREDESEN, GOVERNOR 

OF TENNESSEE, ET AL. 

ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[December 2, 2009] 

The application for stay of execution of sentence of death 

presented to JUSTICE STEVENS and by him referred to the

Court is denied. The petition for a writ of certiorari is 

denied. 

Statement of JUSTICE STEVENS, with whom JUSTICE 

BREYER joins, respecting the denial of certiorari. 

Petitioner Cecil Johnson, Jr., has been confined to a 

solitary cell awaiting his execution for nearly 29 years.1 

Johnson bears little, if any, responsibility for this delay. 

After his execution date was set and on the day the Governor of Tennessee denied him clemency, Johnson brought 

this Eighth Amendment challenge under Rev. Stat. §1979,

42 U. S. C. §1983 to enjoin the State from executing him 

after this lengthy and inhumane delay. See Lackey v. 

Texas, 514 U. S. 1045, 1045–1046 (1995) (STEVENS, J., 

statement respecting denial of certiorari); see also Thompson v. McNeil, 556 U. S. ___, ___ (2009) (same); id., at ___ 

(BREYER, J., dissenting from denial of certiorari). Because 

—————— 

1 “Inmates who are under a sentence of death shall be single-celled 

and housed in a maximum security unit separate from the general

population.” State of Tennessee, Dept. of Correction, Administrative

Policies and Procedures, Index #506.14(VI)(B)(2) (2009), online at

http://www.state.tn.us/correction/pdf/ 506-14.pdf (as visited Dec. 1, 

2009). 
2 JOHNSON v. BREDESEN 

Statement of STEVENS, J. 

I remain steadfast in my view “that executing defendants

after such delays is unacceptably cruel,” id., at ___ (slip 

op., at 4), I would grant the stay application and the petition for certiorari. 

Johnson was tried and convicted of three counts of firstdegree murder in 1981. He continues to maintain his 

innocence. Complaint ¶9. There was no physical evidence 

tying Johnson to the crime. See Johnson v. Bell, 525 F. 3d 

466, 490 (CA6 2008) (Cole, J., dissenting). In 1992 a 

change in state law gave Johnson access, for the first time, 

to substantial evidence undermining key eyewitness testimony against him. Id., at 473. This evidence calls into 

question the persuasive force of the eyewitness’ testimony, 

and, consequently, whether Johnson’s conviction was

infected with constitutional error. See Brady v. Maryland, 

373 U. S. 83 (1963); Johnson, 525 F. 3d, at 490 (Cole, J., 

dissenting). The merits of Johnson’s Brady claim are not 

before us; we denied certiorari on this issue several 

months ago. No. 08–7163, 557 U. S. ___ (2009). But the 

constitutional concerns raised by Judge Cole’s dissent only 

underscore my strongly held view that state-caused delay 

in state-sponsored killings can be unacceptably cruel. See 

Thompson, 556 U. S., at ___ (slip op., at 3–4).2 We cannot 

know as a definitive matter whether, if the State had not 

withheld exculpatory evidence, Johnson would have been

convicted of these crimes. We do know that Johnson 

would not have waited for 11 years on death row before

the State met its disclosure obligations. In short, this is as 

compelling a case as I have encountered for addressing the

constitutional concerns that I raised in Lackey. 

—————— 

2The possibility that there was constitutional error in Johnson’s case

is far from unique. See Root, Cruel and Unusual Punishment: A 

Reconsideration of the Lackey Claim, 27 N. Y. U. Rev. L. & Soc. Change

281, 312–313 (2002) (discussing error rates in capital trials) (citing J.

Liebman, J. Fagan, & V. West, A Broken System: Error Rates in

Capital Cases, 1973–1995, p. 5 (2000)). 
Cite as: 558 U. S. ____ (2009) 3 

Statement of STEVENS, J. 

This case deserves our full attention for another reason. 

Johnson has brought his Eighth Amendment claim under 

42 U. S. C. §1983. More typically, such claims have been

brought in habeas corpus. See, e.g., Thompson v. Secretary for Dept. of Corrections, 517 F. 3d 1279, 1280 (CA11 

2008) (per curiam); Allen v. Ornoski, 435 F. 3d 946, 956– 

960 (CA9 2006); cf. Knight v. Florida, 528 U. S. 990, 998 

(1999) (BREYER, J., dissenting from denial of certiorari) 

(discussing Lackey claim raised after state resentencing on 

successful habeas corpus petition). This case’s posture

raises two important questions: whether a Lackey claim is 

cognizable under §1983; and, if it is not, whether a second

federal habeas petition raising a Lackey claim is a successive petition under 28 U. S. C. §2244(b)(2). The Sixth 

Circuit agreed with the District Court’s conclusion that a 

standalone Lackey challenge under §1983 is the “functional equivalent” of a habeas corpus challenge, App. to 

Pet. for Cert. B-9 (District Court opinion), and thus must

proceed under 28 U. S. C. §2244(b)(2)’s successive petition

bar, see Allen, 435 F. 3d, at 956–960. The resolution of 

these questions below poses a nearly insurmountable 

hurdle for those seeking to raise similar Eighth Amendment challenges.

In my view, these procedural questions are inextricably 

linked to the two underlying evils of intolerable delay. 

First, the delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of

confinement. See Thompson, 556 U. S., at ___ (slip op., at 

2) (STEVENS, J., respecting denial of certiorari); Lackey, 

514 U. S., at 1046–1047 (same); see also Furman v. Georgia, 408 U. S. 238, 288 (1972) (Brennan, J., concurring) 

(“[T]he prospect of pending execution exacts a frightful toll 

during the inevitable long wait between the imposition of

sentence and the actual infliction of death”). Second, 

“delaying an execution does not further public purposes of

retribution and deterrence but only diminishes whatever 
4 JOHNSON v. BREDESEN 

Statement of STEVENS, J. 

possible benefit society might receive from petitioner’s 

death.” Thompson, 556 U. S., at ___ (slip op., at 2) 

(STEVENS, J., respecting denial of certiorari). In other 

words, the penological justifications for the death penalty 

diminish as the delay lengthens. Id., at ___ (slip op., at 2); 

Lackey, 514 U. S., at 1046–1047. Thus, I find constitutionally significant both the conditions of confinement and 

the nature of the penalty itself. 

In light of these coextensive concerns, I find it quite 

difficult to conclude, as the courts below did, that Johnson’s §1983 action is the functional equivalent of a habeas 

petition. Both the gravamen of petitioner’s complaint and

one of the central concerns animating Lackey is that the 

“method” of the State’s execution of a death sentence—a 

lengthy delay due in no small part to the State’s malfeasance in this case—is itself unconstitutional. We have 

held that “method” of execution claims are cognizable 

under §1983. Hill v. McDonough, 547 U. S. 573, 580 

(2006); see also Nelson v. Campbell, 541 U. S. 637, 645– 

647 (2004). But a successful Lackey claim would have the 

effect of rendering invalid a particular death sentence,

suggesting that Johnson’s Lackey claim “directly call[s]

into question the ‘fact’ or ‘validity’ of the sentence itself,” 

Nelson, 541 U. S., at 644. Were petitioner to prevail, it is 

true that the State will not be able to go forward in this

case “by simply altering its method of execution,” ibid. On 

the other hand, it is equally true that, had the State not 

carried out his sentence in this intolerably cruel manner,

the State would have been quite free, as a constitutional 

matter, to “go forward with the sentence,” ibid. 

Although the Court of Appeals’ treatment of Johnson’s 

claim as a habeas challenge is a close question, its decision

to apply §2244(b)(2)’s successive habeas bar is not. The 

Sixth Circuit’s decision has the curious effect of forcing

Johnson to bring a Lackey claim prematurely, possibly at a 
Cite as: 558 U. S. ____ (2009) 5 

Statement of STEVENS, J. 

time before it is ripe.3 Moreover, construing this claim as 

the functional equivalent of a habeas action also has the

unfortunate effect of inviting further delay: A petitioner 

would be compelled to return to state court to exhaust his 

Lackey claim in the first instance under 28 U. S. C. 

§2254(b)(1). For these reasons, I am persuaded that a 

Lackey claim, like a claim that one is mentally incompetent to be executed, should, at the very least, not accrue 

until an execution date is set. See Ceja v. Stewart, 134 

F. 3d 1368, 1371–1372 (CA9 1998) (Fletcher, J., dissenting); cf. Panetti v. Quarterman, 551 U. S. 930, 945 (2007).

When I first expressed my views in Lackey, I did not 

envision such procedural obstacles to the consideration of

a claim that nearly three decades of delay on death row,

much of it caused by the State, has deprived a person of

his Eighth Amendment right to avoid cruel and unusual

punishment. One does not need to accept the proposition 

“that the imposition of the death penalty represents ‘the 

pointless and needless extinction of life with only marginal 

contributions to any discernible social or public purposes,’” 

Baze v. Rees, 553 U. S. 35, ___, (2008) (slip op., at 17) 

(STEVENS, J., concurring in judgment) (quoting Furman, 

408 U. S., at 312 (White, J., concurring)), in order to agree 

that the imposition of the death penalty on these extreme 

facts is without constitutional justification. Most regrettably, a majority of this Court continues to find these 

issues not of sufficient weight to merit our attention. 

—————— 

3The State argues, and the courts below agreed, that Johnson should 

have brought his Eighth Amendment claim in the federal habeas

proceeding he commenced in 1999. At that point in time, Johnson had 

been on death row for 18 years. This was one year longer than the 

petitioner in Lackey. Of course, by 1999, the Court had denied certiorari in Lackey and in Knight v. Florida, 528 U.S. 990, which involved a 

19-year delay. Therefore, when Johnson filed his federal habeas action, 

he had reason to believe that an 18-year delay was not long enough to 

trigger Eighth Amendment concerns and that any Lackey-based claim 

was premature.