Ceja v. Stewart

Order; Dissent by

Judge FLETCHER.

This matter is before us on appeal from the district court’s January 19,1998 denial of 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)(8); and (2) Petitioner seeking permission from this Court to file a successive petition concerning those claims covered by AEDPA.

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 certio-rari 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.

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.