Ceja v. Stewart

• Citation: 134 F.3d 1368
• Decision Date: 20 January 1998
• Docket Number: No. 98-99000,98-99000
• Parties: 98 Cal. Daily Op. Serv. 557, 98 Daily Journal D.A.R. 1135 Jose Jesus CEJA, an individual, Petitioner, v. Terry STEWART, Director of Arizona Department of Corrections; Donald Wawrzaszek, Superintendent of Arizona State Prison, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1368

134 F.3d 1368

98 Cal. Daily Op. Serv. 557, 98 Daily Journal

D.A.R. 1135

Jose Jesus CEJA, an individual, Petitioner, v. Terry STEWART, Director of Arizona Department of Corrections; Donald Wawrzaszek, Superintendent of Arizona State Prison, Respondents.

No. 98-99000.

United States Court of Appeals Ninth Circuit.

Jan. 20, 1998.

Michael W. Patten, Charles Van Cott and Timothy A. Nelson, Brown & Bain, Phoenix, Arizona, for the petitioner-appellant.

Galen H. Wilkes, Assistant Arizona Attorney General, Phoenix, Arizona, for the respondents-appellees.

Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding.

Before: FLETCHER, FARRIS and HAWKINS, Circuit Judges.

Order; Dissent by Judge FLETCHER.

This matter is before us on appeal from the district court's January 19, 1998 denial of Petitioner filed a habeas corpus petition with the district court on January 19, 1998, raising two Eighth Amendment claims, one based on the length of his confinement on death row (a claim based on Justice Stevens's memorandum respecting the denial of certiorari in Lackey v. Texas, 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) ("Lackey" claim)), and the second based on Arizona's method of carrying out execution by lethal injection.

Petitioner's habeas corpus petition seeking a stay of his execution now scheduled for January 21, 1998. On January 18, 1998, we denied Petitioner's January 17, 1998 habeas corpus petition filed directly with this Court. Our Order of January 18, 1998 was without prejudice to: (1) Petitioner seeking relief in the district court for claims not covered by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), codified in relevant part at 28 U.S.C. § 2244(b)(3); and (2) Petitioner seeking permission from this Court to file a successive petition concerning those claims covered by AEDPA.

The district court found that both claims were covered by AEDPA and that Petitioner had not sought or obtained permission from this Court to file either claim. With respect to the "Lackey" issue, the district court noted that no Supreme Court or Ninth Circuit authority recognizes such a claim as an exception to AEDPA.

The district court's order of January 19, 1998 is AFFIRMED and Petitioner's motion for stay of execution is DENIED.

FLETCHER, Circuit Judge, Dissenting:

I respectfully dissent from the majority's summary refusal to grant a stay of execution and to address Jose Ceja's claim that to execute him now, after 23 years of incarceration, would violate the Eighth Amendment's prohibition against the infliction of cruel and unusual punishment. Accordingly, I would grant a certificate of appealability, see 28 U.S.C. § 2253(c)(1) (West 1997), and address the merits of his claims.

I speak first to the circumstances of the man whose claims the majority declines to review. Ceja has been incarcerated on death row since December 19, 1974--twenty-three (23) years. He has spent more time on death row than any other inmate in Arizona, possibly more than any other inmate in the United States. Ceja has spent more than half of his life on death row, entering at the age of 19. He is now 42. At the start, he was an irresponsible, street-tough teenager without a high school degree. He is now a middle-aged man with a GED and several college courses to his credit who has held employment as a porter on death row and as a law clerk in the law library at the prison.

For twenty-three years, Ceja has suffered the anxiety of impending death and the greatly restricted activity allowed death row inmates. During that time, Ceja has had an execution date set at least five times: February 8, 1978; September 24, 1980; May 11, 1983; December 19, 1984; and January 21, 1998. For 23 years, Ceja has lived in solitary confinement, much of it in the typical death row cell on Cell Block 6 at the Arizona State Prison in Florence. Those cells are little more than a 7' X 10' windowless concrete box with a metal sink and toilet and a concrete slab for a bed. Activity outside that cell is typically limited to 3 one-to-two hour periods per week in which the inmate may shower or exercise. Visitations and phone privileges are much more limited than those for the general prison population. Many of a death row inmate's neighbors are deeply disturbed men responsible for some of the most notorious murders in Arizona.

If Ceja is executed, his de facto sentence will be 23 years of solitary confinement in the most horrible portion of the prison--death row--followed by execution. There has never been such a sentence imposed in this country--or any other, to my knowledge. Neither Arizona nor any other state would ever enact a law calling for such a punishment. ¹

The sentencing judge who initially decided that the death sentence was the appropriate punishment now unequivocally states that executing Jose Ceja now after 23 years of incarceration on death row is too harsh a Ceja's petition raises both jurisdictional and Eighth Amendment claims that are of the highest importance, claims that have never been addressed by a panel of our court. When a prisoner facing execution brings important and meritorious claims before us, we have an obligation to grant a stay so that we can address the merits of those claims. See Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394-95, 77 L.Ed.2d 1090 (1983). This is especially so in the present case. Two members of the Supreme Court have said that Ceja's execution-related claim may have substantial merit, and they have invited the courts of appeals to explore the issue and give it a full hearing on the merits. See Lackey v. Texas, 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (Stevens, J., joined by Breyer, J., respecting the denial of certiorari). Their conclusion grows out of the Court's long-standing insistence, most eloquently articulated by Justice White, that the imposition of the death penalty must serve legitimate and substantial penological goals in order to survive Eighth Amendment scrutiny.

punishment for his crimes. The reasons for imposing the death sentence--as stated by the sentencer himself--are no longer served by execution.

At the moment that [a proposed execution] ceases realistically to further these purposes [of deterrence and the coherent expression of moral outrage], the emerging question is whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.

Furman v. Georgia, 408 U.S. 238, 312-13, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (1972) (White, J., concurring). The panel's summary dismissal of the vital question that Ceja has raised is wholly unsupportable. We should accept the Justices' invitation in Lackey and give Ceja's claim the hearing it deserves.

The Supreme Court of the United States has now denied Ceja's request for a writ of certiorari to the decision by the Supreme Court of Arizona to deny the Lackey claim that Ceja brought before that court. That denial enhances rather than lessens our obligation to hear Ceja's claims on the merits.

I.

I necessarily must first address the jurisdiction of our court to hear the Lackey claim that Ceja has raised. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has drastically curtailed the ability of prisoners to obtain relief in the federal courts from allegedly unconstitutional convictions or sentences. Most significantly for present purposes, the Act places strict limitations on the claims that a prisoner can raise in a second or successive petition. The Act provides:

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to 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.

28 U.S.C. § 2244(b)(2). Thus, the thrust of the Act is that a prisoner who seeks to take advantage of the Great Writ must enumerate all the grounds on which he believes himself deserving of such relief in his first petition in federal court. If he fails to do so, he will be We have recognized, however, that there is a small class of claims for which the AEDPA, at least on its face, appears not to leave open even this small window of opportunity: claims involving the circumstances of a prisoner's execution. Such claims do not become ripe for adjudication until the state has issued a warrant for the prisoner's execution. As we explained in Poland v. Stewart, 117 F.3d 1094 (9th Cir.1997), "Where there is no danger of imminent and certain injury to a party, an issue has not matured sufficiently to warrant judicial intervention." Id. at 1104 (citations omitted). In the case of an Eighth Amendment claim regarding the circumstances of an execution, as opposed to a death-row inmate's conviction or confinement, when the inmate "does not currently face any risk of execution [under the contested circumstances, he] will face no hardship or immediate or certain danger if [the courts] do not review his Eighth Amendment claim." Id.

barred from pleading his claims later on unless...