McKenzie v. Day

Decision Date08 May 1995
Docket NumberNo. 95-99006,95-99006
Citation57 F.3d 1461
PartiesDuncan Peder McKENZIE, Jr., Petitioner-Appellant, v. Rick DAY, Director, Department of Corrections and Human Services, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, WA, for petitioner-appellant Duncan Peder McKenzie.

Pamela P. Collins, Asst. Atty. Gen., Helena, MT, for respondent-appellee Rick Day.

Appeal from the United States District Court for the District of Montana.

Before: NORRIS, BEEZER and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge.

Duncan Peder McKenzie has been on death row for two decades. In his third federal habeas petition, he claims inter alia that the state of Montana's inordinate delay in carrying out his sentence constitutes cruel and unusual punishment, a claim similar to that raised in Texas by Clarence Allen Lackey. See Lackey v. Texas, --- U.S. ----, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (Stevens, J., respecting the denial of certiorari). We will refer to this claim as the "Lackey claim."


The protracted procedural history of this case is a matter of public record and need not be reiterated. 1 Suffice to say that McKenzie's second habeas petition, filed July 27, 1985, was finally disposed of in our court on June 24, 1994, and after the customary petition for rehearing, suggestion for rehearing en banc and petition for certiorari were all rejected, the case was returned to the district court. In February of this year, the district court lifted the stay of execution that had been in place throughout the many years taken up by McKenzie's collateral attacks in federal court.

The state immediately petitioned the state district court to reschedule McKenzie's execution. 2 It was in opposition to that petition, on March 20th, 3 that McKenzie first raised his Lackey claim. The state court rejected this and other challenges, holding that it lacked authority to consider any matter other than setting a new execution date. Montana v. McKenzie, No. 6593A (Mont.Dist.Ct., Eighth Jud.Dist., Mar. 27, 1995) (transcript of proceedings), at 7, 13; see Mont.Code Ann. Sec. 46-19-103(1). 4 That ruling was affirmed by a divided state Supreme Court, Montana v. McKenzie, --- Mont. ----, 894 P.2d 289, 292 (1995); the dissenting justice would have remanded for consideration of the Lackey claim, id., 894 P.2d at 293-95 (Leaphart, J., dissenting).

McKenzie then filed this habeas petition in federal district court. In addition to the Lackey claim, McKenzie raised the following claims: (1) that changes made to the Montana capital punishment scheme since his conviction in 1975 violated the ex post facto clause because they took away the state trial court's discretion to consider new evidence in mitigation of the sentence; (2) that changes in the method of execution, the number of witnesses permitted to attend, and the place and procedure surrounding the execution violated the ex post facto clause because they increased his punishment; (3) that he was denied due process at the hearing on the state's motion to reset the execution date because he was not given an adequate opportunity to consult with counsel before being required to choose the method of execution, and because he had not been provided with information (including the identity of his executioner) that he needed to make that decision; (4) that he was denied due process by the state's failure to consider new evidence in mitigation of his sentence, including evidence that he was not a violent prisoner and no longer posed a threat to society; (5) that he was denied due process by the state's failure to re-weigh the proportionality of his sentence in light of the subsequent reversal (on grounds of legal error, not insufficiency of the evidence) of the convictions to which his crime had originally been compared; (6) that his execution would amount to cruel, unusual and arbitrary punishment because he will be the first person executed in Montana since 1943 and the only one ever to have been executed under the pre-1977 death penalty statute; and (7) that his death sentence is based on materially inaccurate facts, because changes in Montana law would now allow him to be sentenced to life imprisonment without the possibility of parole, an option not available in 1975 when he was sentenced.

The district court summarily dismissed McKenzie's third habeas petition as "successive and repetitive" without awaiting the state's response. McKenzie v. Day, No. CV-95-44-GF (D.Mont. Apr. 20, 1995). We issued a certificate of probable cause and ordered expedited briefing and argument.


McKenzie seeks a stay and a remand to the district court for consideration of various claims, including his Lackey claim. In the alternative, McKenzie asks that we simply rule for him on the merits and issue the writ. We consider each of these requests for relief in turn.

A. The Stay

The Supreme Court, in the celebrated case of Robert Alton Harris, held as follows:

Whether his claim is framed as a habeas petition or Sec. 1983 action, Harris seeks an equitable remedy. Equity must take into consideration the State's strong interest in proceeding with its judgment and Harris' obvious attempt at manipulation. This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.

Gomez v. United States Dist.Ct. for the N.Dist. of Cal., 503 U.S. 653, 653-54, 112 S.Ct. 1652, 1653, 118 L.Ed.2d 293 (1992) (citations omitted) [hereinafter referred to as "Harris "]. The Supreme Court took pains to explain that it did not vacate the stay of execution for abuse of the writ, see McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991): "Even if we were to assume ... that Harris could avoid the application of McCleskey to bar his claim, we would not consider it on the merits." Harris, 503 U.S. at 653, 112 S.Ct. at 1653. The Court held that Harris was not entitled to the equitable remedy of a stay of execution because of his abusive delay in bringing his claim. 5

McKenzie, like Harris, seeks a last-minute stay of execution. And, like Harris, he raises claims that could have been brought much earlier, quite possibly as early as his first 6 and second federal habeas petitions. McKenzie raises several issues in his petition and briefs but bases his request for a stay largely on his Lackey claim. While Justice Stevens' memorandum in Lackey has given prominence to the argument that delay in carrying out a death sentence constitutes cruel and unusual punishment, the legal theory underlying the claim is not new in this circuit, since a similar claim was raised as early as 1960 by Caryl Chessman. Chessman v. Dickson, 275 F.2d 604, 607 (9th Cir.1960). In 1984, this precise claim was raised in the habeas petition of Willie Lee Richmond, and was rejected by this court on the merits in 1990. See Richmond v. Lewis, 948 F.2d 1473 (9th Cir.1990), rev'd on other grounds, --- U.S. ----, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992), vacated, 986 F.2d 1583 (9th Cir.1993). While the panel in Richmond eventually vacated its opinion, 986 F.2d 1583, rendering its ruling non-binding on us, the fact that the claim was litigated in cases in this circuit shows clearly that the claim was capable of being raised much earlier. 7

We recognize that McKenzie's claim is unlike Harris' in some respects. For one thing, the Lackey theory had been rejected by this court in 1990 and, while that ruling stood as the law of the circuit, it arguably would have been frivolous to raise it. 8 But there was no such bar to litigating the claim before the Richmond panel's ruling was entered (in December 1990) or after it was vacated (in March 1993). From 1985 to 1994 McKenzie was in the process of litigating his second federal habeas petition, which occasioned not one but two evidentiary hearings in the district court. See McKenzie v. Risley, 915 F.2d 1396, 1397 (9th Cir.1990); McKenzie v. McCormick, 27 F.3d 1415, 1417 (9th Cir.1994). Had McKenzie raised the Lackey claim at any time during that period, it could have been considered on the merits without the need for yet another stay of execution. 9

McKenzie's claim also differs from Harris' in that McKenzie's claim did not accrue until substantial time had passed after imposition of the sentence, whereas Harris' claim--that execution by lethal gas is cruel and unusual punishment--had been available to him ever since he was sentenced. Nevertheless, McKenzie's Lackey claim did arise long before he first raised it two-and-a-half weeks ago. As McKenzie himself points out, he has been on death row now for two decades. At the time his case was last remanded to the district court in 1990, McKenzie had been on death row for 15 years, almost as long as Lackey himself. When we disposed of McKenzie's claim in June 1994, he had been on death row for 19 years. The Lackey claim could have been raised and considered at either of those times, or anytime in between, without having to vacate a death warrant.

McKenzie has offered no reason for failing to raise the claim earlier except his counsel's belief that the claim would not succeed. Yet that did not prevent a similar claim by Richmond in 1984, see 948 F.2d at 1491-92, or by Lackey himself. Harris again provides important guidance. Harris' claim that execution by lethal gas is cruel and unusual had been considered and firmly rejected by the Fifth Circuit in 1983, prompting a dissent from the denial of certiorari from Justice Marshall. See Gray v. Lucas, 710 F.2d 1048 (5th Cir.), cert. denied, 463 U.S. 1237, 1240, 104 S.Ct. 211, 213, 77 L.Ed.2d 1453 (1983) (Marshall, J., dissenting from the denial of...

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