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McKenzie v. Day

filed: May 8, 1995.

DUNCAN PEDER MCKENZIE, JR., PETITIONER-APPELLANT
v.
RICK DAY, DIRECTOR, DEPARTMENT OF CORRECTIONS AND HUMAN SERVICES, RESPONDENT-APPELLEE



Appeal from the United States District Court for the District of Montana. D.C. No. CV-95-44-GF. Leland C. Nielsen, Senior District Judge, Presiding.

Before: William A. Norris, Robert R. Beezer and Alex Kozinski, Circuit Judges. Order by Judge Kozinski; Dissent by Judge Norris.

Order

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, 131 L. Ed. 2d 304, 63 U.S.L.W. 3705 (1995) (Stevens, J., respecting the denial of certiorari). We will refer to this claim as the " Lackey claim."

Background

The protracted procedural history of this case is a matter of public record and need not be reiterated.*fn1 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.*fn2 It was in opposition to that petition, on March 20th,*fn3 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. § 46-19-103(1).*fn4 That ruling was affirmed by a divided state Supreme Court, Montana v. McKenzie, No. 95-161, 1995 WL 232732, at * 3 (Mont. Apr. 20, 1995); the Dissenting Justice would have remanded for consideration of the Lackey claim, id. at * 5-6 (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.

Discussion

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 § 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., 112 S. Ct. 1652, 1653 (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, 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.*fn5

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*fn6 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, 121 L. Ed. 2d 411, 113 S. Ct. 528 (1992), vacated, 986 F.2d 1583 (9th Cir. 1993). While the panel in Richmond eventually vacated its opinion, 986 F.2d at 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.*fn7

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, McKenzie would arguably have been frivolous in raising it.*fn8 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.*fn9

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, 77 L. Ed. 2d 1453, 104 S. Ct. 211 (1983) (Marshall, J., Dissenting from the denial of certiorari). And Harris' reason for bringing his claim late was in other respects much more compelling than McKenzie's: The then-recent execution by lethal gas of Donald Harding by the state of Arizona, and that state's change in the method of execution prompted by that experience, provided a new factual basis for the claim that death by gassing was cruel and unusual. See Fierro v. Gomez, 865 F. Supp. 1387, 1407-08 (N.D. Cal. 1994).*fn10

While likelihood of success on the merits did not enter into the Supreme Court's equitable calculus in Harris, we nevertheless deem it prudent to give McKenzie's Lackey claim preliminary consideration because a very strong showing of likelihood of success on the merits might, in rare circumstances, outweigh abusive delay in raising the claim.*fn11 Our consideration of the merits starts with the opinion of our colleagues in the Richmond case which, though not binding, is nonetheless highly persuasive:

A defendant must not be penalized for pursuing his constitutional rights, but he also should not be able to benefit from the ultimately unsuccessful pursuit of those rights. It 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. If that were the law, death-row inmates would be able to avoid their sentences simply by delaying proceedings beyond some threshold amount of time, while other death-row inmates - less successful in their attempts to delay - would be forced to face their sentences. Such differential treatment would be far more "arbitrary and unfair" and "cruel and unusual" than the current system of fulfilling sentences when the last in the line of appeals fails on the merits. We thus decline to recognize Richmond's lengthy incarceration on death row during the pendency of his appeals as substantively and independently violative of the Constitution.

948 F.2d at 1491-92.

McKenzie cites various authorities to the contrary, perhaps the most powerful of which is the ruling of the Privy Council in Pratt & Morgan v. Attorney General for Jamaica, 3 SLR 995, 2 AC 1, 4 All ER 769 (Privy Council 1993) (en banc) (delay of 14 years before carrying out an execution violated section 17(1) of the Jamaican Constitution). See also Catholic Comm'n for Justice and Peace in Zimbabwe v. Attorney General, No. S.C. 73 (Zimb. June 24, 1993) (delays of two, three and five years coupled with unusually harsh conditions of incarceration); Soering v. United Kingdom, 11 Eur. Hum. Rgts. Rep. 439 (1989) (delay in execution of death sentences in the United States constitutes inhuman and degrading punishment such that extradition is not warranted); Riley v. Attorney General of Jamaica, 1 AC 719, 734, 3 All ER 469, 478 (Privy Council 1983) (Lord Scarman, Dissenting). With all due respect to our colleagues abroad, we do not believe this view will prevail in the United States.

We are not confronted with a situation where the State of Montana has set up a scheme to prolong the period of incarceration, or rescheduled the execution repeatedly in order to torture McKenzie. The delay has been caused by the fact that McKenzie has availed himself of procedures our law provides to ensure that executions are carried out only in appropriate circumstances. That this differs from the practice at common law, where executions could be carried out on the dawn following the pronouncement of sentence, see Pratt & Morgan, advance copy at 2, is a consequence of our evolving standards of decency, which prompt us to provide death row inmates with ample opportunities to contest their convictions and sentences. Indeed, most of these procedural safeguards have been imposed by the Supreme Court in recognition of the fact that the common law practice of imposing swift and certain executions could result in arbitrariness and error in carrying out the death penalty. See Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976); Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972). We cannot conclude that delays caused by satisfying the Eighth Amendment themselves violate it.*fn12

We are also mindful that sustaining McKenzie's claim would dramatically alter the calculus in granting stays of execution in the hundreds of death penalty cases now pending before the state and federal courts. By and large, courts have erred on the side of caution in granting stays of execution sought by death row inmates. While the delay sometimes undermines the state's interest in carrying out its sentence expeditiously, see In re Blodgett, 502 U.S. 236, 112 S. Ct. 674, 116 L. Ed. 2d 669 (1992), death row inmates have generally been successful in arguing that stays of execution should be freely granted because the state's interest in carrying out its sentence will not be permanently impaired. This argument would lose much of its force in a regime where the state risks being pushed permanently out of bounds if the execution is too long deferred by the process of adjudication. By and large, the delay in carrying out death sentences has been of benefit to death row inmates, allowing many to extend their lives, obtain commutation or reversal of their sentences or, in rare cases, secure complete exoneration.*fn13 Sustaining a claim such as McKenzie's would, we fear, wreak havoc with the orderly administration of the death penalty in this country by placing a substantial premium on speed rather than accuracy.

Finally, it is unclear to us whether, even if it were held that delay in the imposition of the death penalty constitutes cruel and unusual punishment, commutation of the death penalty will turn out to be the appropriate remedy. Unlike the claim raised by Harris, for example, which dealt with cruelty in the method of a future execution, whatever anguish McKenzie has suffered is in the past and cannot be undone. Vacating the death sentence would punish the state and perhaps speed up the rate of future executions, but it would not relieve McKenzie and those in his position of the pain they have already suffered. When prisoners complain about the conditions in prison, we do not commute their sentence; we order the conditions ameliorated. If inordinate delay in carrying out an execution is adJudged to be a problem of constitutional dimension, there may be other remedies that are more appropriate in addressing the harm done.

Based on these considerations, we conclude that it is highly unlikely that McKenzie's Lackey claim would be successful if litigated to its Conclusion. This factor therefore does not outweigh the strong presumption against granting a stay created by our determination that McKenzie's delay in raising the claim on the eve of his execution is abusive.*fn14 McKenzie nevertheless argues that we have an obligation to enter a stay because the Supreme Court recently entered a stay in Lackey to allow the district court in that case to consider whether inordinate delay in carrying out the sentence of death constitutes cruel and unusual punishment. Lackey v. Scott, No. 94-9047, 1995 WL 244537 (U.S. Apr. 27, 1995). McKenzie argues that the Supreme Court's stay in Lackey is a signal that the inferior federal courts must enter stays of execution in all cases raising colorable Lackey claims.

We have carefully examined the Supreme Court's order in Lackey in light of the procedural history of that case, and we do not read it so broadly. To begin with, Lackey is a case where the district court exercised its discretion by entering a stay, which was then lifted by the Fifth Circuit.*fn15 By reinstating the stay in Lackey, the Supreme Court was arguably deferring to the discretion of the initial decision-maker in that case, which was the district court. More importantly, the question of manipulative delay so prominent in Harris was not at issue in Lackey. Lackey had raised his claim of inordinate delay many years earlier in his first federal habeas petition, a fact carefully considered by the district court in determining whether to issue the stay. Lackey v. Scott, MO-95-CA-68-F, 1995 WL 254323, at * 6-7 (W.D. Tex. Apr. 21, 1995). Finally, we read the Supreme Court's laconic stay in Lackey as an indication that the Justices wish to see the matter explored in cases where it is properly raised, not as a ruling that stays must be entered in all cases raising Lackey claims in disregard of all other equitable considerations. Harris, again, provides useful guidance: Although the constitutionality of execution by lethal gas was being seriously considered by the district court, see Fierro, 865 F. Supp. at 1389-90, Harris' execution was allowed to go forward because equitable considerations weighed so heavily against any further delay in carrying out his sentence.*fn16 Without more explicit guidance, we cannot conclude that the Supreme Court intends to halt virtually all executions in this country for the many months, perhaps years, it will take for the issue to be fully explored and resolved.*fn17

As the Supreme Court has directed, we "consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief" and weigh heavily "the State's strong interest in proceeding with its judgment." Harris, 112 S. Ct. at 1653. McKenzie could and should have raised his Lackey claim at a time when it was capable of being resolved without staying a scheduled execution.*fn18 When considered in light of what we see as a low probability of ultimate success on the merits of McKenzie's Lackey claim, we find no basis for exercising our equitable discretion in issuing a stay.

Nor are we able to issue a stay based on any of McKenzie's other claims. Each of those claims also could and should have been raised at a much earlier time. In any event, each is either patently without merit or fails to state a federal claim under 28 U.S.C. § 2254(a). McKenzie's claim that the state violated his rights under the ex post facto clause by changing the place and procedures applicable to his execution is precluded by Holden v. Minnesota, 137 U.S. 483, 491, 34 L. Ed. 734, 11 S. Ct. 143 (1890), which stands for the proposition that such matters are "regulations that do not affect [the prisoner's] substantial rights." McKenzie's claim that he was denied due process of law because the state did not disclose the identity of the executioner and gave him insufficient time and information to make a reasoned selection of the method of execution is similarly without merit. The state has broad discretion to determine the procedures for conducting an execution; we are aware of no authority for the proposition that a prisoner is entitled, for example, to have a lethal injection administered by a physician. Montana's procedures are reasonably calculated to ensure a swift, painless death and are therefore immune from constitutional attack. See Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994) ("The risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.").

The only other of McKenzie's claims that deserves more than cursory Discussion is that the state improperly changed its death penalty law to remove the authority of the court scheduling an execution to also reconsider the sentence. A removal of discretion to mitigate a sentence can, under the law of this circuit, violate the ex post facto clause. See United States v. Paskow, 11 F.3d 873, 877 (9th Cir. 1993). McKenzie has, however, pointed to no authority in Montana law supporting his claim that trial courts there ever had that authority. Indeed, McKenzie's execution was rescheduled a number of times before Montana amended its death penalty statute and there is no evidence that he could have sought mitigation of his sentence at any of these proceedings. McKenzie's claim that the state courts had authority to reconsider a death sentence when rescheduling an execution rests entirely on his interpretation of former section 95-2303 of the Montana Code, which reads as follows:

In pronouncing the sentence of death, the court shall set the date of execution which must not be less than 30 days nor more than 60 days from the date the sentenced is pronounced.

Rev. Code Mont. § 95-2303 (1947), amended and recodified at Mont. Code Ann. § 46-19-103.

As we read this section, however, it imposes an obligation to set a date of execution at the time the sentence is pronounced, not vice versa. McKenzie offers no opinion of the Montana courts, or any other authority for that matter, in support of his counterintuitive interpretation.*fn19 Absent guidance from the state courts suggesting that section 2303 ought not be read according to its plain meaning, we conclude that it did not confer upon the state trial court any authority to reconsider the death sentence once it had been pronounced. Cf. State v. Hanners, 254 Mont. 524, 839 P.2d 1267, 1268 (Mont. 1992) (trial courts do not have the authority to reconsider a sentence once it has been pronounced absent specific statutory authorization).*fn20 The 1981 amendment and recodification of section 2303 pursuant to which McKenzie's execution was rescheduled thus did not remove the discretion of the sentencing authority and does not violate the ex post facto clause.

B. The Merits

McKenzie argues, in the alternative, that we should bypass the equitable considerations applicable to issuance of a stay and simply issue the writ based on his Lackey claim. According to McKenzie, the inordinate delay in carrying out the sentence of death, regardless of any other factor, conclusively establishes that he has suffered cruel and unusual punishment. As we noted above, however, we are skeptical of the merits of the Lackey claim. See pp. 5345-49, supra. We are all the more reluctant, therefore, to grant the equivalent of summary judgment on McKenzie's claim.*fn21 In essence, McKenzie asks us to grant on the merits the very claim that the Supreme Court ordered to be examined in Lackey, a claim which, as Justice Stevens explained in his memorandum, is highly fact-intensive. We decline to do so.

Conclusion

McKenzie's motion for a stay of execution of the sentence of death and his alternative motion for summary issuance of the writ on his Lackey claim are denied.

NORRIS, J., Dissenting:

The majority begins its opinion by misrepresenting what is before us. Two matters were presented by McKenzie: 1) an appeal from the district court's dismissal of the petition for habeas corpus and 2) a motion for a stay of execution made directly to this court. The resolution of the first issue is clear - the district court erred in its sua sponte dismissal McKenzie's petition as "successive and repetitive" without giving him a chance to respond. Given this clear error, we should have immediately vacated the dismissal and quickly remanded to the district court for proper proceedings, permitting the district court to exercise its discretion and rule on McKenzie's application for a stay in light of the Supreme Court's issuance of a stay in a nearly identical case, Lackey v. Texas, 63 U.S.L.W. 3786 (Apr. 27, 1995).*fn1 Instead, we held on to this case in order to issue an opinion that inexplicably fails to rule on the appeal of the district court's order of dismissal. Without disposing of the appeal, the majority denies the motion for stay made to this court only by seriously misconstruing the Supreme Court's holding in Gomez v. United States Dist. Ct. for the Dist. of Cal., 112 S. Ct. 1652 (1992) (hereinafter " Harris "), and committing the same due process violations committed by the district court below. The result of this bizarre combination of rulings and failures to rule is that the dismissal of the petition has neither been affirmed, nor vacated, but remains before this court, waiting to be mooted by the unstayed execution of the petitioner. I begin my Dissent from this unprecedented Disposition with a brief but necessary review of the history of this case.

In January of 1975, McKenzie was convicted of deliberate homicide and aggravated kidnapping. Intent was a major issue at trial because the defense argued that McKenzie was incapable of harboring the mental states required for conviction of these crimes due to mental disease or defect.

On March 3, 1975, McKenzie was sentenced to death. The sentencing Judge gave two reasons for imposing the death penalty: (1) that McKenzie posed a danger to society and (2) that Montana law did not provide for life imprisonment without possibility of parole, so that absent a sentence of death, McKenzie "would only be required to serve approximately seven years . . . before he would be turned loose to menace society again." Sentencing Order at 8-9.

Nearly twenty-one years later, McKenzie is still on death row. The extraordinary delay in carrying out his death sentence is not of McKenzie's making. It is primarily the result of two actions taken by the trial Judge - one of which was not discovered until almost ten years after the Judge sentenced McKenzie to death - that raised serious questions about whether the State of Montana convicted and sentenced McKenzie in violation of the United States Constitution. First, the Judge gave instructions to the jury that violated due process by shifting to McKenzie the burden of proving lack of intent. Second, the Judge had an ex parte meeting with the prosecutor about the case shortly before sentencing that the prosecutor admitted "may have included" a Discussion about the brutality of the murder, evidence that the victim was raped, and McKenzie's psychiatric defenses. McKenzie v. McCormick, 27 F.3d 1415, 1418 (9th Cir. 1994), cert. denied, 130 L. Ed. 2d 797, 115 S. Ct. 916 (1995). See Appendix & part VI n.13, infra.

On March 27, 1995, McKenzie appeared at a hearing on a motion by the State of Montana to set a new date for his execution through the issuance of a death warrant. At that hearing, McKenzie requested resentencing pursuant to the death penalty statutes in effect at the time his crime was committed, which, he argued, permitted the court to reconsider the appropriateness of a sentence of death in 1995. He then argued that he should be resentenced to life imprisonment because the reasons why he was originally sentenced to death were no longer valid: Montana law had been amended to provide for a life sentence without the possibility of parole and his exemplary behavior during his 20 years of imprisonment proved that he was no longer a danger to society.

The court refused to apply or interpret the 1975 sentencing statute and, instead, applied the law as it was amended in 1981. The court plainly had no discretion to resentence McKenzie under the 1981 version of the statute. The court's authority was explicitly limited to setting a new execution date, which was, as the court stated, merely a "procedural and ministerial act." Opinion at 10, Montana v. McKenzie, No. 95-161 (Mont. Apr. 20, 1995). Accordingly, the court issued a death warrant and scheduled McKenzie's execution for May 10, 1995.

On April 11, 1995, the Montana Supreme Court, agreeing with the state trial Judge, dismissed McKenzie's appeal on the ground that the order rescheduling the execution, as a ministerial act, was not an appealable order. Accordingly, the Montana Supreme Court refrained from ruling on any of McKenzie's substantive claims.

On April 18, 1995, McKenzie submitted his third federal habeas petition in the United States District Court for the District of Montana. He moved for an order directing the state to file an Answer, which the State opposed. The State also requested permission to file a motion to dismiss raising "many procedural bars." However, rather than grant the State permission to file its motion to dismiss, the district court dismissed the petition sua sponte in a one-sentence order: "this third federal habeas corpus petition is meritless as a successive and repetitive petition."

On April 21, 1995, McKenzie filed a notice of appeal to the Ninth Circuit and on April 28, 1995 he filed a motion to stay his execution.

I

District Court's Sua Sponte Dismissal

In sua sponte dismissing the third habeas petition as "successive and repetitive" within forty-eight hours after receiving it, the district court made two flagrant errors. First, it wrongly decided that all of McKenzie's claims were "successive." A claim is "successive" if it was raised in an earlier petition, or if it fails to raise a ground for relief that is new or different than a claim raised in an earlier petition and determined on the merits. Campbell v. Blodgett, 997 F.2d 512, 515-16 (9th Cir. 1992), cert. denied, 127 L. Ed. 2d 685, 114 S. Ct. 1337 (1994). The State concedes that McKenzie has never previously raised most of the claims in his petition, including his Eighth Amendment and Ex Post Facto claims, see parts V & VI infra.

It is the abuse of the writ doctrine that applies to claims raised for the first time in a second or subsequent petition. McCleskey v. Zant, 499 U.S. 467, 470, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991). Here, even if the district court's order is construed as dismissing the non-successive claims as an abuse of the writ, the district court failed to follow the proper procedure for raising and deciding abuse of the writ, as prescribed by the Supreme Court in McCleskey :

When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. . . . To excuse his failure to raise the claim earlier, petitioner must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. . . . If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of Justice would result from a failure to entertain the claim.

Id. at 494-95.*fn2

The district court failed to observe these required procedures, dismissing McKenzie's petition without requiring the State to raise its affirmative defenses and without providing him notice or an opportunity to demonstrate cause and prejudice or miscarriage of Justice. A petitioner need not anticipate an abuse of the writ defense and plead cause and prejudice or miscarriage of Justice in advance. Price v. Johnston, 334 U.S. 266, 291-92, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948). As a necessary corollary, the district court may not rule on an assertion of abuse of the writ without giving the petitioner an opportunity to show cause and prejudice or miscarriage of Justice. See Lugo v. Keane, 15 F.3d 29, 31 (2d Cir. 1994); Williams v. Whitley, 994 F.2d 226, 232 (5th Cir.), cert. denied, 126 L. Ed. 2d 572, 114 S. Ct. 608 (1993); United States v. Fallon, 992 F.2d 212, 213 (8th Cir. 1993); Johnson v. Copinger, 420 F.2d 395, 399 (4th Cir. 1969).

On appeal, the State defends the sua sponte dismissal by arguing that "summary Disposition by the district court was appropriate in this case, due to the obvious lack of merit of Petitioner's claims, the fact that this is McKenzie's third habeas petition and the short period of time available until his execution date due to the last minute filing of his third petition." Appellee's Brief at 8. None of these reasons relieve the district court of its obligations under McCleskey. First, although the State asserts that the court dismissed the petition as meritless, it is clear that the district court never considered the merits of the claims, but dismissed on purely procedural grounds. See Order, No. CV-95-44-GF, April 20, 1995, at 1 ("this third federal habeas corpus petition is meritless as a successive and repetitive petition"). Second, that this is a third petition is no reason to ignore the procedural mandates of McCleskey, which was explicitly intended to govern district court procedure "when a prisoner files a second or subsequent application" for habeas relief. 499 U.S. at 494. Third, while the district court has authority to expedite consideration of a habeas petition filed close to an execution date, it does not have discretion simply to ignore McKenzie's due process right to notice and the opportunity to be heard, under procedures clearly mandated by the Supreme Court. See In re Blodgett, 502 U.S. 236, 240, 116 L. Ed. 2d 669, 112 S. Ct. 674 (1992).

As the Court in Price v. Johnston stated:

We are not unaware of the many problems caused by the numerous and successive habeas corpus petitions filed by prisoners. But the answer is not to be found in repeated denials of petitions . . . without the prisoners having an opportunity to defend against their alleged abuse of the writ.

334 U.S. at 293 (footnote ...


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