Allen v. Ornoski

• Decision Date: 15 January 2006
• Docket Number: No. 06-70206.,No. 06-99001.,06-99001.,06-70206.
• Citation: 435 F.3d 946
• Parties: Clarence Ray ALLEN, Petitioner-Appellant, v. Steven W. ORNOSKI, Warden, of the California State Prison at San Quentin; Attorney General of the State of California, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 946

435 F.3d 946

Clarence Ray ALLEN, Petitioner-Appellant, v. Steven W. ORNOSKI, Warden, of the California State Prison at San Quentin; Attorney General of the State of California, Respondents-Appellees.

No. 06-99001.

No. 06-70206.

United States Court of Appeals, Ninth Circuit.

Submitted and Filed January 15, 2006.^*

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Michael Satris, Bolinas, CA, for the appellant.

Ward A. Campbell, Supervising Deputy Attorney General, Sacramento, CA, for the appellee.

Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, Jr., District Judge, Presiding. D.C. No. CV-00064-FCD-DAD.

Before GRABER, WARDLAW, and CLIFTON, Circuit Judges.

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 v. Texas, 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (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.

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, 232 Cal.Rptr. 849, 729 P.2d 115 (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 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, ___ U.S. ___, 126 S.Ct. 134, 163 L.Ed.2d 137 (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 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, 2006 WL 83384 (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. § 2244.⁷ See 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.

II. CERTIFICATE OF APPEALABILITY ON ALLEN'S AGE AND PHYSICAL INFIRMITY CLAIM

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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (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, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this "threshold inquiry," Slack, 529 U.S. at 482, 120 S.Ct. 1595, 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, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (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, 123 S.Ct. 1029 (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...