FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARENCE RAY ALLEN, 

Petitioner-Appellant, Nos. 06-99001

v. 06-70206

STEVEN W. ORNOSKI, Warden, of D.C. No.

the California State Prison at San  CV-00064-FCDQuentin; ATTORNEY DAD

GENERAL OF THE STATE OF OPINION CALIFORNIA,

Respondents-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, Jr., District Judge, Presiding

Submitted and Filed January 15, 2006

Pasadena, California*

Before: Susan P. Graber, Kim McLane Wardlaw, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Wardlaw

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

879
COUNSEL

Michael Satris, Bolinas, California, for the appellant. 

Ward A. Campbell, Supervising Deputy Attorney General,

Sacramento, California, for the appellee.

OPINION

WARDLAW, Circuit Judge: 

Clarence Ray Allen appeals from the district court’s order

denying and dismissing in part his second petition for writ of

habeas corpus and denying his requests for a stay of execution

and for the issuance of a certificate of appealability on his

Eighth Amendment claim based upon age and physical infirmity. He seeks a certificate of appealability and consideration

on the merits of his age and physical infirmity claim, which,

he argues, encompasses his Lackey claim, based on his long

tenure on death row under “horrific conditions.” See Lackey

884 ALLEN v. ORNOSKI
v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial

of certiorari). Allen also asks that if we consider the Lackey

claim independently, we find that it is not a second or successive petition within the meaning of 28 U.S.C. § 2244 or, in the

alternative, that we grant permission to file that claim in the

district court.1 Finally, for the first time on appeal, Allen challenges the constitutionality of 28 U.S.C. § 2254(d)(1), which

outlines the circumstances in which a federal court may grant

habeas relief from a state court judgment. 

Because we conclude that reasonable jurists would not find

debatable the district court’s ruling that Allen failed to make

“a substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(2), we deny his motion for a certificate

of appealability on his age and physical infirmity claim.

Because we conclude that Allen’s Lackey claim is a second or

successive application which could “have been discovered

previously through the exercise of due diligence,” 28 U.S.C.

§ 2244(b)(2)(B)(i), and which we have previously rejected as

a predicate for relief from execution, we affirm the district

court’s dismissal with prejudice of Allen’s claim, and decline

to authorize a second or successive application. Because

Allen’s challenge to 28 U.S.C. § 2254(d) is untimely and fails

to satisfy the procedural requirements of our appellate rules,

we decline to address its merits. We therefore deny Allen’s

request for a stay of execution because he has not demonstrated substantial grounds upon which relief may be granted,

and we affirm the district court’s denial and dismissal in part

of his second writ petition. 

1We hereby order that for purposes of this appeal Allen’s motion for a

certificate of appealability and his application for leave to file a “second

or successive” habeas petition are consolidated. 

ALLEN v. ORNOSKI 885
I.

PROCEDURAL BACKGROUND

Allen was convicted and sentenced to death in 1982 for the

murders of Bryon Schletewitz, Douglas White, and Josephine

Rocha, which he orchestrated while incarcerated in Folsom

Prison and serving a life sentence with the possibility of

parole for the murder of Mary Sue Kitts.2 Allen was fifty

years of age when the murders and conspiracy occurred and

fifty-two years of age at the time his death sentence was

imposed. 

The California Supreme Court affirmed Allen’s conviction

and sentence on December 31, 1986, see People v. Allen, 42

Cal. 3d 1222 (1986), and summarily denied his December

1987 and March 1988 supplemental habeas petitions. Allen

filed his first federal habeas petition on August 31, 1988, and

moved for an evidentiary hearing. The district court stayed

proceedings to enable Allen to exhaust his state remedies. It

reopened federal habeas proceedings in 1993. A magistrate

judge presided over a six-day evidentiary hearing in April

1997, on the issue of ineffective assistance of counsel in the

penalty phase. In March 1999, the magistrate judge issued

Findings and Recommendations denying Allen’s habeas petition. Following objections to the magistrate judge’s report, the

district court conducted a de novo review of the case in April

2001, in compliance with 28 U.S.C. § 636(b)(1)(C), holding

argument on April 26, 2001. In May 2001, the district court

issued a Memorandum and Order adopting in full the magistrate judge’s Findings and Recommendations and denying

Allen’s petition. The district court issued a certificate of

appealability on both the guilt and penalty phase issues, and

2The factual basis for Allen’s jury convictions for triple-murder and

conspiracy to murder seven persons is detailed in our opinion affirming

the district court’s denial of Allen’s first habeas petition. Allen v. Woodford, 395 F.3d 979 (9th Cir.), cert. denied, 126 S. Ct. 134 (2005). 

886 ALLEN v. ORNOSKI
Allen appealed. In January 2005, we issued an opinion affirming the district court’s denial of Allen’s habeas petition. Allen

v. Woodford, 395 F.3d 979 (9th Cir.), cert. denied, 126 S. Ct.

134 (2005). 

After the Supreme Court denied Allen’s petition for writ of

certiorari, the Superior Court of Glenn County held a hearing

on November 18, 2005, and appointed January 17, 2006, as

the date of Allen’s execution. On December 13, 2005, Allen

filed a petition for clemency with the Governor of California,

which the Governor denied on Friday, January 13, 2006.

Allen petitioned for writ of habeas corpus and related orders

in the California Supreme Court on December 23, 2005. On

January 10, 2006, the California Supreme Court denied all

relief.3 Allen filed a petition for a writ of habeas corpus, a

motion for a stay of execution, a motion for leave to proceed

in forma pauperis, and an application for appointment of counsel4

 in the United States District Court for the Eastern District

of California on January 12, 2006. 

Allen’s petition presents two distinct claims: (1) that his

execution would violate the Eighth Amendment’s prohibition

against cruel and unusual punishment, incorporated into the

Fourteenth Amendment Due Process Clause, because he is

both elderly5 and infirm6; and (2) that his execution would

3The same claims Allen brings before us in his habeas petition were

brought before the California Supreme Court. The California Supreme

Court denied Allen’s habeas petition in a one-sentence order: “Petitioner’s

third petition for a writ of habeas corpus and request for stay of execution,

filed December 23, 2005, is denied on the merits.” In re Clarence Ray

Allen, No. S139857 (Cal. Jan. 10, 2006). 

4The district court granted Allen’s motion for leave to proceed in forma

pauperis and his application for appointment of counsel. The Warden does

not cross-appeal these orders. 

5Allen will be seventy-six years old on January 16, 2006, the day before

his appointed date of execution. 

6Allen suffers from a long list of infirmities, including blindness, hearing problems, advanced Type-2 diabetes, complications from a stroke,

heart disease, and complications from a recent heart attack suffered in

September 2005, which have left him confined to a wheelchair. 

ALLEN v. ORNOSKI 887
violate the Eighth Amendment because of the inordinate

length of time, twenty-three years, he has spent on death row

and the “horrific” conditions of his confinement, a Lackey

claim, also known as “death row phenomenon.” His petition

does not challenge the constitutionality of 28 U.S.C.

§ 2254(d) in any respect, but instead states that the petition is

brought “pursuant to 28 U.S.C. § 2254.” 

District Judge Frank C. Damrell, Jr. denied Allen’s first

claim on the merits and dismissed Allen’s second claim for

lack of jurisdiction. Allen v. Ornoski, No. Civ. S-06-64 FCD/

DAD (E.D. Cal. Jan. 12, 2006). 

Judge Damrell properly analyzed Allen’s claims independently to determine whether each constituted a “second or

successive” habeas petition subject to the restrictions of 28

U.S.C. § 2244.7See Lambright v. Stewart, 220 F.3d 1022,

1024 (9th Cir. 2000) (examining each claim individually to

determine whether standard for certificate of appealability

was met); see also United States v. Orozco-Ramirez, 211 F.3d

862, 869 (5th Cir. 2000) (“We consider each claim independently in deciding whether it is ‘second or successive’ under

AEDPA.”). That Allen’s age and physical infirmity claim

both encompasses and is supported by his long tenure on

death row does not eliminate our obligation also to consider

it independently, especially when Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the

district court. In addition, Allen specifically relied upon

Lackey in the district court. Justice Stevens’ concurrence in

Lackey makes no reference to age or infirmity, but only to

tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. 

7Each of the parties has variously argued that the two claims should be

considered as one and that they should be considered independently. We

believe that the district court’s separate treatment of the claims is analytically correct. 

888 ALLEN v. ORNOSKI
II.

CERTIFICATE OF APPEALABILITY ON ALLEN’S

AGE AND PHYSICAL INFIRMITY CLAIM

[1] Having been denied a certificate of appealability on his

age and physical infirmity claim by the district court, Allen

asks us to certify this claim, as he must secure a certificate of

appealability before he can proceed with the merits of his

claims. See 28 U.S.C. § 2253(c)(1); 9TH CIR. R. 22-1; see also

United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001).

A petitioner must make “a substantial showing of the denial

of a constitutional right” to warrant a certificate of appealability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529

U.S. 473, 483-84 (2000). “The petitioner must demonstrate

that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack,

529 U.S. at 484; see also Miller-El v. Cockrell, 537 U.S. 322,

338 (2003). To meet this “threshold inquiry,” Slack, 529 U.S.

at 482, the petitioner “ ‘must demonstrate that the issues are

debatable among jurists of reason; that a court could resolve

the issues [in a different manner]; or that the questions are

adequate to deserve encouragement to proceed further.’ ”

Lambright, 220 F.3d at 1025 (alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983) (internal quotation marks omitted)). Even if a question

is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id.

at 1025-26. “[T]he showing a petitioner must make to be

heard on appeal is less than that to obtain relief.” Id. at 1025

n.4 (citations omitted); see also Miller-El, 537 U.S. at 337

(reaffirming the Court’s holding in Slack “that a COA does

not require a showing that the appeal will succeed”); Silva v.

Woodford, 279 F.3d 825, 832 (9th Cir. 2002) (“It is essential

to distinguish the standard of review for purposes of granting

a COA from that for granting the writ.”). 

Allen argues that proceeding with the execution despite his

old age and physical infirmities would deprive him of his conALLEN v. ORNOSKI 889
stitutional right under the Eighth Amendment to be free from

cruel and unusual punishment. Allen’s petition, however, displays a woeful lack of support for the proposition that the

Eighth Amendment prohibits execution of the elderly and the

infirm. Allen provides only one case which discusses an

Eighth Amendment claim based upon the advanced age of an

inmate, Hubbard v. Campbell, 379 F.3d 1245 (11th Cir.) (per

curiam), cert. denied, 542 U.S. 958 (2004). Hubbard is

unhelpful, however, because there the Eleventh Circuit upheld

the district court’s dismissal of Hubbard’s petition for lack of

subject matter jurisdiction on the ground that the claim should

have been filed as a second or successive habeas petition. Id.

at 1247. Allen cites no other authority favoring or disfavoring

his legal position. 

[2] Allen instead argues that the Supreme Court’s recently

developing Eighth Amendment jurisprudence naturally

extends to a constitutional prohibition against executing the

elderly and infirm. In support, Allen points to the Supreme

Court’s capital case decisions of the post-Furman era, in

which the Court has gradually (1) enlarged the classes of persons who are ineligible for the death penalty, see Ford v.

Wainwright, 477 U.S. 399 (1986) (executing the mentally

incompetent is unconstitutional); Thompson v. Oklahoma, 487

U.S. 815 (1988) (executing youths under sixteen at time of

offense is unconstitutional); Atkins v. Virginia, 536 U.S. 304

(2002) (executing the mentally retarded is unconstitutional);

Roper v. Simmons, 125 S. Ct. 1183 (2005) (executing juveniles who committed the offense while under eighteen is

unconstitutional), and (2) narrowed the range of offenses that

are death-eligible, see Coker v. Georgia, 433 U.S. 584 (1977)

(execution for offenses short of murder is unconstitutional);

Enmund v. Florida, 458 U.S. 782 (1982) (executing those

who aided a felony but did not kill or intend to kill is unconstitutional). Allen vaguely suggests that execution of an

elderly person does not comport with “evolving standards of

decency,” in that the execution “offends humanity,” provides

no deterrence value, does not serve any retributive purpose,

890 ALLEN v. ORNOSKI
and violates the norms of domestic and international law.8

However, Allen’s argument fails in two critical respects: (1)

the Supreme Court’s limitations on the use of the death penalty are grounded in the theory that some classes of persons

are less culpable and therefore not deserving of the death penalty and Allen’s age and infirmity do not render him less culpable at the time of his offenses; and (2) Allen cannot

demonstrate the required “objective indicia of consensus” that

“evolving standards of decency” now prohibit the execution

of elderly and infirm persons. Thus, his contention that reasonable jurists could debate whether he has made a substantial

showing of the denial of a constitutional right fails because

there is no clearly established Supreme Court authority, or

any legal authority, supporting his position, even if one

stretches existing Supreme Court authority to its maximum

reach. 

The Supreme Court’s rulings in Roper, Atkins, Thompson

and Enmund are inextricably bound to the concept that the

execution of certain classes of inherently less-culpable persons offends the Eighth Amendment’s proportionality requirement. In Roper, the Supreme Court enumerated three traits of

juveniles which, as a class, render them less culpable and

therefore unsuitable to be placed in the worst category of

offenders: (1) a “lack of maturity and an underdeveloped

sense of responsibility” resulting in “impetuous and illconsidered actions and decisions;” (2) a heightened vulnerability to “negative influences and outside pressures;” and (3)

personality that is “more transitory, less fixed.” Roper, 125

S. Ct. at 1195. The Court found that “[t]heir own vulnerability

and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to

8While international norms may also be instructive in this analysis, in

light of the nonexistence of domestic authority supporting Allen’s claim,

and the lack of definitive international authority provided by Allen, we, as

an intermediate court, decline to consider the asserted practices of foreign

jurisdictions. 

ALLEN v. ORNOSKI 891
be forgiven for failing to escape negative influences in their

whole environment,” and therefore concluded that the social

purpose of “[r]etribution is not proportional if the law’s most

severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of

youth and immaturity.” Id. at 1195-96. The Court again

focused on culpability in assessing whether executing juveniles fulfilled the social purpose of deterrence and found that

“the absence of evidence of deterrent effect is of special concern because the same characteristics that render juveniles

less culpable than adults suggest as well that juveniles will be

less susceptible to deterrence.” Id. at 1196. 

In Atkins, the Court again linked “relative culpability” to

the “penological purposes served by the death penalty.” 536

U.S. at 317. With respect to retribution, the Court found that

because “severity of the appropriate punishment necessarily

depends on the culpability of the offender . . . an exclusion for

the mentally retarded is appropriate.” Id. at 319. Culpability

was again key to the Court’s finding that execution of the

mentally retarded did not serve the penological purpose of

deterrence, because “it is the same cognitive and behavioral

impairments that make these defendants less morally culpable

— for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses — that also make it less

likely that they can process the information of the possibility

of execution as a penalty and, as a result, control their conduct

based upon that information.” Id. at 320. The Court applied

the same rationale of lessened culpability undermining the

deterrence and retributive effects of capital punishment in

holding that the Eighth Amendment prohibits the execution of

persons who were under sixteen at the time of their offense.

See Thompson, 487 U.S. at 833-38. Similarly, in Enmund, the

Court assessed proportionality based upon the personal culpability of the defendant, ruling that for an accomplice to a felony, “criminal culpability must be limited to his participation

892 ALLEN v. ORNOSKI
in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt.” 458 U.S. at 801. 

Allen heavily relies upon Ford, arguing that given Allen’s

age, failing health and length and conditions of confinement

on death row the retributive purposes of capital punishment

would not be served by his execution. In Ford, the Court held

that the Eighth Amendment prohibits the execution of an

insane defendant. In doing so, it relied in part on the rationale

that the execution of a person who does not understand, or is

not even aware of, the punishment that he is about to face

does not serve the death penalty’s aims of deterrence and retribution. By contrast, here, there is no indication that Allen’s

physical condition or his age has affected his mental acuity.

To the contrary, Allen’s mental state was last evaluated on

December 27, 2005, and he was found competent. Indeed, he

does not claim that he is mentally incompetent in any way.

Ford, then, is inapposite because nothing in the record suggests that Allen’s physical condition and age render him

unable to comprehend the nature and purpose of the death

penalty that he faces. 

Nor has Allen argued that his current physical incapacity9

somehow relates to his culpability at the time he committed

the capital offenses. Allen was fifty years old when he orchestrated the murders of Bryon Schletewitz, Josephine Rocha,

and Douglas White. His age and experience only sharpened

his ability to coldly calculate the execution of the crime.

Nothing about his current ailments reduces his culpability and

thus they do not lessen the retributive or deterrent purposes of

the death penalty. 

Moreover, in both Atkins and Roper the Supreme Court

looked to objective indicia of consensus — “the rejection of

9The Warden vigorously disputes the level of physical incapacitation

Allen currently suffers, relying in part on the interview of Allen by one

of Allen’s experts, Dr. Paul Good. 

ALLEN v. ORNOSKI 893
the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the

consistency in the trend toward abolition of the practice” —

to provide sufficient evidence that society viewed juveniles

and the mentally retarded as “ ‘categorically less culpable

than the average criminal.’ ” Roper, 125 S. Ct. at 1194 (quoting Atkins, 536 U.S. at 316). As the Court noted in both Atkins

and Roper, it is “not so much the number of these States that

is significant, but the consistency of the direction of change.”

Roper, 125 S.Ct. at 1193 (quoting Atkins, 536 U.S. at 315).

Allen’s argument that sixteen states disallow the death penalty

altogether is overly broad. We cannot equate contemporary

judgment that the death penalty is generally inappropriate for

all persons with the specific claim presented here. Allen’s

logic equally leads to the conclusion that the death penalty in

general is contrary to evolving standards of decency, as to the

conclusion that the death penalty as applied to elderly and

infirm prisoners is contrary to the Eighth Amendment. This

position is further weakened by the fact that, if sixteen states

bar the death penalty, then thirty-four states must still permit

the death penalty for elderly and infirm persons. Allen has not

adduced any evidence showing that states are barring executions specifically of the elderly or infirm. 

Allen also argues that there is a de facto practice on the part

of states not to execute elderly persons. He points out that

since 1973, only two persons over the age of seventy have

been executed — James Hubbard, who was seventy-four

when executed by the State of Alabama in 2004, and John B.

Nixon, who was seventy-seven when executed by the State of

Mississippi in 2005. Allen also cites one study which asserts

that only twenty-seven of the 7,311 people executed in the

United States between 1608 and 2002 whose ages were ascertainable were over the age of seventy. Allen “infers” from the

rarity of executions of elderly persons, as shown in the bare

statistics he provides, that there is a pattern or practice, an

evolving standard of decency, of not executing the elderly.

Allen has not, however, adduced any direct evidence of a

894 ALLEN v. ORNOSKI
societal aversion to executing the elderly, such as evidence

demonstrating that juries disproportionately elect not to

impose the death penalty for elderly offenders, or that governors are more likely to commute death sentences of older prisoners or that any State has legislated against the execution of

the elderly and infirm. 

It may very well be that other societal forces account for

the paucity of elderly persons executed. It is possible that

more elderly persons die on death row before their appeals are

exhausted, given that the average time spent in prison for a

death row inmate in 2004 was ten years and two months. U.S.

DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULLETIN,

CAPITAL PUNISHMENT 2004, at 11. In addition, most people

commit crimes while in their twenties. In 2004, the mean age

at the time of arrest for a person later sentenced to death was

twenty-eight years old; it is rare for anyone over fifty to be

arrested for a crime that carries the death penalty. Id. at 7.

Allen presents no contrary evidence to suggest that a significant number of people commit capital crimes at age fifty and

above. The DOJ Report also belies the notion that there is any

“evolving standard of decency” rejecting execution of the

elderly — a ninety-year-old man sits on death row in Arizona,

forty-four persons aged sixty-five or older are on death row,

and eighty-two persons aged sixty to sixty-four are on death

row across the nation. Id. at 7-8. 

Thus, Allen’s age and physical infirmity claim does not fit

within the twin rationales motivating the Supreme Court’s

recent Eighth Amendment jurisprudence. The claim that the

Eighth Amendment forbids the execution of the elderly and

infirm finds no support in our existing law, that of our sister

circuits, or of the Supreme Court. Therefore, Allen’s claim is

not “debatable among jurists of reason” such that another

court could rule in a different manner, nor is it a question that

is “adequate to deserve encouragement to proceed further.”

Lambright, 220 F.3d at 1025 (internal citations omitted), and

should not be certified. 

ALLEN v. ORNOSKI 895
[3] Even were we to certify this claim, it would fail on the

merits due to the standards of review applicable under

AEDPA, because the California Supreme Court’s denial of

habeas relief was neither “contrary to, [nor] involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). 

The California Supreme Court denied Allen’s petition “on

the merits,” without any discussion of Allen’s claims or its

reasoning. “We have relaxed AEDPA’s strict standard of

review when the state court reaches a decision on the merits

but provides no reasoning to support its conclusion. Under

such circumstances, we independently review the record to

determine whether the state court clearly erred in its application of Supreme Court law.” Pirtle v. Morgan, 313 F.3d 1160,

1167 (9th Cir. 2002) (citing Delgado v. Lewis, 223 F.3d 976,

982 (9th Cir. 2000) (“Federal habeas review is not de novo

when the state court does not supply reasoning for its decision, but an independent review of the record is required to

determine whether the state court clearly erred in its application of controlling federal law.”). However, the independent

review undertaken under Delgado is not the equivalent of de

novo review, but rather is a style of review which views the

state court decision “through the ‘objectively reasonable’ lens

ground by Williams.” Delgado, 223 F.3d at 982 (quoting Williams v. Taylor, 529 U.S. 362 (2000)). In addition, “although

we independently review the record, we still defer to the state

court’s ultimate decision.” Pirtle, 313 F.3d at 1167. 

[4] Even applying this less deferential standard of review,

we find no substantive support for Allen’s legal position; he

is asking us to make new law, which we cannot do. There is

no clearly established federal law, as determined by the

Supreme Court, to support Allen’s age and physical disability

based claim. The Supreme Court has adopted the definition of

new law fashioned in Teague v. Lane, 489 U.S. 288 (1989),

to determine what qualifies as clearly established law under

896 ALLEN v. ORNOSKI
AEDPA. See Williams at 379 (Stevens, J., for four justices)

(“The antiretroactivity rule recognized in Teague, which prohibits reliance on ‘new rules,’ is the functional equivalent of

a statutory provision commanding exclusive reliance on

‘clearly established law.’ ”). Teague counsels that “a case

announces a new rule when it breaks new ground or imposes

a new obligation on the States or the Federal Government,”

or, to put it differently, “if the result was not dictated by precedent existing at the time the defendant’s conviction became

final.” Teague, 489 U.S. at 301 (emphasis in original). Notably, Teague offers the Court’s decision in Ford v. Wainwright, 477 U.S. 399, 410 (1986), as an example of a case

which broke new ground. Id. We fail to see how Allen’s proposed restriction on capital punishment based upon his status

as an elderly and infirm death row inmate would not qualify

as breaking new ground or imposing a new obligation on the

States or the Federal Government. 

III.

THE LACKEY CLAIM 

We must first determine whether Allen’s claim that twentythree years on death row under “horrific” conditions of confinement violates the Eighth Amendment is a “second or successive” habeas petition within the meaning of 28 U.S.C.

§ 2244. 

[5] Title 28 U.S.C. § 2244 acts as a “gatekeeper” to prevent

petitioners from filing “second or successive” habeas petitions

in the district court without first moving “in the appropriate

court of appeals for an order authorizing the district court to

consider the application.” 28 U.S.C. § 2244(b)(3)(A). Section

2244(b)(2) requires the court of appeals to dismiss the claims

in a “second or successive” habeas petition unless:

(A) the applicant shows that the claim relies on a

new rule of constitutional law, made retroactive to

ALLEN v. ORNOSKI 897
cases on collateral review by the Supreme Court,

that was previously unavailable; or 

(B)(i) the factual predicate for the claim could not

have been discovered previously through the exercise of due diligence; and 

(ii) the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable

factfinder would have found the applicant guilty of

the underlying offense. 

[6] AEDPA does not define the term “second or successive.” However, “[t]he Supreme Court, the Ninth Circuit, and

our sister circuits have interpreted the concept incorporated in

this term of art as derivative of the ‘abuse-of-the-writ’ doctrine developed in pre-AEDPA cases.” Hill v. Alaska, 297

F.3d 895, 897-98 (9th Cir. 2002). See also Stewart v.

Martinez-Villareal, 523 U.S. 637, 642-43 (1998) (AEDPA’s

“ ‘restrictions on successive petitions constitute a modified res

judicata rule, a restraint on what used to be called in habeas

corpus practice “abuse of the writ.” ’ ”) (quoting Felker v.

Turpin, 518 U.S. 651, 664 (1996)); Calderon v. United States

Dist. Court, 163 F.3d 530, 538 (9th Cir. 1998) (en banc)

(“[a]buse of the writ evolved as a judicially created equitable

doctrine, but it is now codified by the AEDPA” at § 2244(b)),

overruled in unrelated part by Woodford v. Garceau, 538

U.S. 202 (2003); Crouch v. Norris, 251 F.3d 720, 723-25 (8th

Cir. 2001) (applying abuse of the writ principles to assess

prisoner’s challenge to the execution of his sentence); Muniz

v. United States, 236 F.3d 122, 127 (2d Cir. 2001) (per

curiam) (defining second or successive “with reference to the

equitable principles underlying the ‘abuse of the writ’ doctrine”); United States v. Barrett, 178 F.3d 34, 44 (1st Cir.

1999) (“The core of the AEDPA restrictions on second or successive § 2255 petitions is related to the longstanding judicial

898 ALLEN v. ORNOSKI
and statutory restrictions embodied in the form of res judicata

known as the ‘abuse of the writ’ doctrine.”); Reeves v. Little,

120 F.3d 1136, 1139 (10th Cir. 1997) (per curiam) (noting

that AEDPA restrictions on successive petitions stem from

abuse of the writ doctrine). An “abuse of the writ” occurs

when a petitioner raises a habeas claim that could have been

raised in an earlier petition were it not for “inexcusable

neglect.” McCleskey v. Zant, 499 U.S. 467, 493 (1991).

“[T]he abuse-of-the-writ doctrine . . . concentrate[s] on a petitioner’s acts to determine whether he has a legitimate excuse

for failing to raise a claim at the appropriate time.” Id. at 490.

If the petitioner can show cause for his failure to raise the

claim, he then must demonstrate “ ‘actual prejudice’ resulting

from the errors of which he complains.” Id. at 494 (quoting

United States v. Frady, 456 U.S. 152, 168 (1982)). 

[7] Claims that suffering the ravages of death row for a

lengthy duration violate the Eighth Amendment are commonly called Lackey claims, after Justice Stevens’ concurrence in the Supreme Court’s denial of certiorari in Lackey v.

Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of

certiorari). There, Justice Stevens pointed out that the Court’s

determination in Gregg v. Georgia, 428 U.S. 153 (1976), that

the Eighth Amendment did not prohibit capital punishment

relied heavily on the ground that the death penalty “might

serve ‘two principal social purposes: retribution and deterrence.’ ” Lackey, 514 U.S. at 1045 (quoting Gregg, 428 U.S.

at 183). He questioned whether either of those policy grounds

retained any force after an inmate had spent seventeen years

on death row, noting that “the acceptable state interest in retribution has arguably been satisfied by the severe punishment

already inflicted,” id., and that “the additional deterrent effect

from an actual execution now . . . seems minimal,” id. at

1046. Since then, Justice Breyer has also questioned whether

the additional punishment of death after confinement on death

row for “more than a generation” was cruel and unusual punishment. Foster v. Florida, 537 U.S. 990, 993 (2002) (Breyer,

J., dissenting from denial of certiorari) (arguing that imposiALLEN v. ORNOSKI 899
tion of the death penalty might violate the Eighth Amendment

where Florida courts twice vacated petitioner’s sentence and

the Eleventh Circuit held that his sentence was unconstitutional, but then four months later withdrew all relief); Knight

v. Florida, 528 U.S. 990, 993-94 (1999) (Breyer, J., dissenting from denial of certiorari) (arguing that imposition of the

death penalty might violate the Eighth Amendment where

petitioner had been on death row for twenty-four years and

the Eleventh Circuit found that Florida’s death penalty sentencing procedure was constitutionally defective, but the State

waited more than seven years before holding a new sentencing hearing); Elledge v. Florida, 525 U.S. 944, 945 (1998)

(Breyer, J., dissenting from denial of certiorari) (“Not only

has he, in prison, faced the threat of death for nearly a generation, but he has experienced that delay because of the State’s

own faulty procedures . . . .”).10 Allen claims that, enduring

this death row phenomenon, his punishment has been made

all the more acute by the horrific conditions and unconstitutional, substandard medical care provided at San Quentin. 

[8] Allen brings his Lackey claim for the first time in this

second habeas petition. A petition for review of a new claim

that could have been raised earlier may be treated as the functional equivalent of a second or successive petition for a writ

of habeas corpus. See Thompson v. Calderon, 151 F.3d 918,

921 (9th Cir. 1998) (en banc) (“In most cases when the factual

predicate for a Rule 60(b) motion also states a claim for a successive petition under 28 U.S.C. § 2244(b), . . . the Rule 60(b)

motion should be treated as a successive habeas petition.”);

Felker, 101 F.3d at 661 (“Rule 60(b) cannot be used to circumvent restraints on successive habeas petitions.”). 

[9] Allen could have brought his Lackey claim in his first

habeas petition in 1988, when he had already been on death

10In all three cases, however, much of the delay had been due to the

State’s own errors, a situation not present here, as the courts on both direct

and habeas appeal have uniformly rejected each of Allen’s claims. 

900 ALLEN v. ORNOSKI
row for six years, in his first amended habeas petition, when

he had been on death row for nine years, or at some other

point during the course of the proceedings on his first habeas

petition in federal court from 1993 to 2005. Allen cites the

Supreme Court case Stewart v. Martinez-Villareal, to bolster

his argument that his Lackey claim could not have been

brought earlier because it was not ripe. 523 U.S. at 642-43.

Martinez-Villareal is distinguishable, however, because it

dealt with a Ford claim of mental incompetency. See id. at

640; Ford, 477 U.S. at 410 (holding that “the Eighth Amendment prohibits the State from inflicting the penalty of death

upon a prisoner who is insane”). Unlike a Ford claim of

incompetence, a Lackey claim does not become ripe only after

a certain number of years or as the final hour of execution

nears. There is no fluctuation or rapid change at the heart of

a Lackey claim, but rather just the steady and predictable passage of time. As the district court noted, that the passage of

time makes his Lackey claim stronger is irrelevant to ripeness,

because the passage of time strengthens any Lackey claim.

Allen’s initial execution date was in 1988, and by the time

habeas proceedings resumed in federal court in 1993, he

already had been suffering the psychological distress of death

row and impending execution for eleven years. Those proceedings did not end until 2005. Allen could have sought to

amend his petition to state a Lackey claim at any time during

their pendency. Allen fails to show adequate cause as to why

he delayed raising his Lackey claim. 

[10] We conclude that because Allen could have brought

his Lackey claim earlier, it is a “second or successive” habeas

application under the abuse of the writ doctrine and is governed by section 2244. See Ortiz v. Stewart, 149 F.3d 923,

944 (9th Cir. 1998) (holding that a Lackey claim, not raised

in a first § 2254 petition, does not fall within either exception

to AEDPA’s bar against subsequent claims), cert. denied, 526

U.S. 1123 (1999); Gerlaugh v. Stewart, 167 F.3d 1222, 1223-

24 (9th Cir. 1999) (same); Ceja v. Stewart, 134 F.3d 1368,

1369 (9th Cir. 1998) (affirming district court’s denial of “secALLEN v. ORNOSKI 901
ond or successive” petition based on failure to obtain permission to file from the Ninth Circuit because no Supreme Court

or Ninth Circuit authority recognizes a Lackey claim as an

exception to AEDPA). It is undisputed that Allen did not seek

our permission to file his Lackey claim in the district court.

Therefore, the district court correctly dismissed this claim

pursuant to 28 U.S.C. § 2244(b)(3)(A). 

Allen now seeks permission to file his Lackey claim as a

“second or successive” habeas petition. We deny this request

because Allen has not made a prima facie case that he has satisfied the requirements of section 2244. 28 U.S.C.

§ 2244(b)(3)(C). 

[11] Even were we to find that Allen’s Lackey claim was

not a “second or successive” habeas petition and reach the

merits of his claim, we would necessarily conclude that the

California Supreme Court’s denial of habeas relief was not

“contrary to,” and did not involve “an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

[12] The Supreme Court has never held that execution after

a long tenure on death row is cruel and unusual punishment.

Justices Stevens and Breyer have argued that this claim

should be heard by the Court, as discussed above, in response

to the Court’s denial of certiorari in several death penalty

cases where an inmate has served a lengthy period of time on

death row. See Foster, 537 U.S. at 991-93 (Breyer, J., dissenting from denial of certiorari); Knight, 528 U.S. at 993

(Breyer, J., dissenting from denial of certiorari); Elledge, 525

U.S. at 944-46 (Breyer, J., dissenting from denial of certiorari); Lackey, 514 U.S. 1045-47 (Stevens, J., respecting denial

of certiorari). However, Justice Thomas, concurring in

Knight, noted that he is “unaware of any support in the American constitutional tradition or in this Court’s precedent for

the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain

902 ALLEN v. ORNOSKI
when his execution is delayed.” 528 U.S. at 990 (Thomas, J.,

concurring). Allen cannot credibly claim that there is any

clearly established law, as determined by the Supreme Court,

which would support his Lackey claim. 

[13] Allen also cannot credibly argue that “the evolving

standards of decency that mark the progress of a maturing

society,” Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality opinion), as evidenced by the decisions of state and federal

courts, are moving toward recognition of the validity of

Lackey claims. See, e.g., Roper v. Simmons, 125 S.Ct. at

1192-1194 (surveying state prohibitions on the death penalty

for juveniles and finding that the “consistency of direction of

change has been demonstrated” as to justify a constitutional

prohibition). Indeed, we denied outright a Lackey claim in

McKenzie v. Day, holding that “[w]e cannot conclude that

delays caused by satisfying the Eighth Amendment themselves violate it.” 57 F.3d 1461, 1467 (9th Cir.), opinion aff’d

and adopted, 57 F.3d 1493 (9th Cir. 1995) (en banc). We further reasoned that “[i]t would indeed be a mockery of justice

if the delay incurred during the prosecution of claims that fail

on the merits could itself accrue into a substantive claim to

the very relief that had been sought and properly denied in the

first place.” Id. at 1466. 

Numerous other federal and state courts have rejected

Lackey claims. See Chambers v. Bowersox, 157 F.3d 560,

568, 570 (8th Cir. 1998) (holding that Lackey claim is procedurally barred by failure to raise in state courts; but nonetheless noting that death row delays do not constitute cruel and

unusual punishment because delay results from “desire of our

courts, state and federal, to get it right, to explore . . . any

argument that might save someone’s life”); White v. Johnson,

79 F.3d 432, 439 (5th Cir. 1996) (“The state’s interest in

deterrence and swift punishment must compete with its interest in insuring that those who are executed receive fair trials

with constitutionally mandated safeguards. . . . White has benefitted from this careful and meticulous process and cannot

ALLEN v. ORNOSKI 903
now complain that the expensive and laborious process of

habeas corpus appeals which exists to protect him has violated other of his rights.”); Stafford v. Ward, 59 F.3d 1025,

1028 (10th Cir.) cert. denied, 515 U.S. 1173 (1995) (noting

that to date, no federal court had recognized claim); Fearance

v. Scott, 56 F.3d 633, 639 (5th Cir. 1995) (“Fearance was not

the unwilling victim of a Bleak House-like procedural system

hopelessly bogged down; at every turn, he, without complaining about the accumulating period on death row, sought

extensions of time, hearings and reconsiderations.”); Free v.

Peters, 50 F.3d 1362, 1362 (7th Cir. 1995) (per curiam) (any

inordinate delay in execution of defendant’s death sentence

was directly attributable to his own conduct and thus did not

constitute cruel and unusual punishment); Williams v. Anderson, 174 F. Supp. 2d 843, 874-75 (N.D. Ind. 2001), aff’d sub

nom., Williams v. Davis, 301 F.3d 625 (7th Cir. 2002); Ex

Parte Bush, 695 So. 2d 138, 139-140 (Ala. 1997); State v.

Schackart, 947 P.2d 315, 336 (Ariz. 1997); Hill v. State, 962

S.W.2d 762, 767 (Ark. 1998) (holding that it was not cruel

and unusual punishment to resentence the defendant to death

even though he had been on death row for more than fifteen

years); People v. Massie, 19 Cal. 4th 550, 574 (1998); People

v. Frye, 18 Cal. 4th 894, 1029-31 (1998); People v. Hill, 3

Cal. 4th 959, 1014-16 (1992), overruled on other grounds by

Price v. Superior Court, 25 Cal. 4th 1046 (2001); Parker v.

State, 873 So. 2d 270, 294 (Fla. 2004), cert. denied, 125 S. Ct.

868 (2005) (concluding that an eighteen-year span between

indictment for capital murder and resentencing to death was

not cruel and unusual punishment); Booker v. State, 773 So.

2d 1079, 1096 (Fla. 2000) (per curiam); McKinney v. State,

992 P.2d 144, 150-52 (Idaho 1999); State v. Smith, 931 P.2d

1272, 1287-89 (Mont. 1996); Bell v. State, 938 S.W.2d 35, 53

(Tex. Crim. App. 1996). Allen’s Lackey claim is devoid of

support in federal or state law and therefore the denial of

habeas relief by the California Supreme Court, even without

a thorough discussion of the merits, could not possibly be

construed to be “contrary to, or involve[ ] an unreasonable

904 ALLEN v. ORNOSKI
application of, clearly established Federal law, as determined

by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). 

IV.

CONSTITUTIONAL CHALLENGE TO

28 U.S.C. § 2254(d)

Allen for the first time on appeal challenges the constitutionality of AEDPA’s standards for federal court habeas

review of State court judgments, arguing that 28 U.S.C.

§ 2254(d) violates the Supremacy Clause, Article III’s case or

controversy requirement, and the principle of separation of

powers. Allen offers no adequate explanation for his failure

to raise his section 2254(d)(1) challenge in the district court;

in so doing, he deprived the district court of an opportunity to

address the merits of his claim. “[A] party cannot treat the district court as a mere ill-placed bunker to be circumvented on

his way to this court where he will actually engage his opponents.” Handa v. Clark, 401 F.3d 1129, 1132 (9th Cir. 2005)

(citing Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th Cir.

1996)). 

[14] Allen concedes that he failed to properly proceed with

this claim, but relies on our principle that “[w]hile issues not

raised to the district court normally are deemed waived, we

have recognized three narrow exceptions to this general rule.”

United States v. Flores-Montano, 424 F.3d 1044, 1047 (9th

Cir. 2005). We may exercise discretion to review newly presented issues if: “(1) there are exceptional circumstances why

the issue was not raised in the trial court; (2) the new issue

arises while the appeal is pending because of a change in the

law; or (3) the issue presented is purely one of law and the

opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court. Id. (internal quotations

omitted). “Further exception may be made when plain error

ALLEN v. ORNOSKI 905
has occurred and an injustice might otherwise result.” Id.

(internal quotations omitted). 

[15] Allen does not satisfy any of these exceptions. First,

Allen failed to present any exceptional circumstances satisfactorily explaining why he did not raise the issue in the district

court. Second, AEDPA’s constitutionality is not a new issue;

Allen and his attorneys have known since April 24, 1996, the

date AEDPA was enacted, that any subsequent petition Allen

filed would be governed by AEDPA’s provisions, including

section 2254(d)(1). Third, although the constitutionality of

section 2254(d)(1) is purely a question of law, the prejudice

to the State when a petitioner brings this claim on the eve of

his execution is great. When a petitioner seeks an equitable

remedy, the federal courts “must take into consideration the

State’s strong interest in proceeding with its judgment and

[the petitioner’s] obvious attempt at manipulation.” Gomez v.

United States Dist. Court, 503 U.S. 653, 654 (1992) (“This

claim could have been brought more than a decade ago. There

is no good reason for this abusive delay . . . . A court may

consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”). In addition, a finding of waiver is particularly appropriate here

where, in his district court filing, Allen discussed AEDPA’s

standards of review, argued the merits of his claim with

respect to AEDPA, and specifically invoked the wording of

the AEDPA deference standard. 

[16] Moreover, by including this claim for the first time in

his motion before us for a certificate of appealability, Allen

violates both Ninth Circuit Rule 22-1 and Federal Rule of

Appellate Procedure 22(b)(1). 9TH CIR. R. 22-1(a)( “The court

of appeals will not act on a motion for a COA if the district

court has not ruled first.”); FED. R. APP. P. 22(b)(1) (“If an

applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue.”). Given

Allen’s failure to raise his constitutional challenge to AEDPA

906 ALLEN v. ORNOSKI
in a timely and proper manner, we decline Allen’s invitation

to address this momentous issue at this stage of the proceedings.11

V.

CONCLUSION

[17] Based on the foregoing, we deny Allen’s motions for

leave to file a second or successive habeas petition and certification of appealability. Our discussion of the issues presented

by this appeal also reveals that Allen has not demonstrated

“the presence of substantial grounds upon which relief might

be granted.” Barefoot v. Estelle, 463 U.S. 880, 895 (1983);

Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997),

abrogation on other grounds recognized by Jackson v. Roe,

425 F.3d 654, 658-61 (9th Cir. 2005) (discussing impact of

Supreme Court’s decision in Rhines v. Weber, 125 S. Ct. 1528

(2005)). Accordingly, we also deny Allen’s emergency

motion for a stay of execution. 

JUDGMENT OF THE DISTRICT COURT

11We note that we have previously rejected the claim that AEDPA violates Article III. See Duhaime v. Ducharme, 200 F.3d 597, 600-01 & n.5

(9th Cir. 2000). Like Allen, Duhaime argued that section 2254(d)(1) violates Article III because the lower federal courts have a constitutional duty

to “ ‘say what the law is.’ ” Duhaime, 200 F.3d at 600-01 & n.5 (citing

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803)). The

Duhaime court acknowledged that prior Ninth Circuit cases had not

addressed petitioner’s exact arguments, but Duhaime concluded that the

circuit’s prior cases had “implicitly” rejected the argument that section

2254(d)(1) was unconstitutional under Article III. See id. at 601. “Section

2254(d) merely limits the source of clearly established law that the Article

III court may consider, and that limitation serves to govern prospectively

classes of habeas cases rather than offend the court’s authority to interpret

the governing law and to determine the outcome in any pending case.” Id.

In any event, regardless of AEDPA’s constitutionality, as our foregoing

analysis explains, Allen’s Eighth Amendment claims find no support in

the law. 

ALLEN v. ORNOSKI 907
AFFIRMED; MOTION FOR CERTIFICATION OF

APPEALABILITY DENIED; MOTION FOR AUTHORIZATION OF A SECOND OR SUCCESSIVE APPLICATION DENIED; MOTION FOR STAY OF EXECUTION

DENIED.

908 ALLEN v. ORNOSKI