Allen v. Ornoski

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLARENCE RAY ALLEN, 
Petitioner-Appellant,
Nos. 06-99001
v. 06-70206
STEVEN W. ORNOSKI, Warden, of
the California State Prison at San  D.C. No.
CV-00064-FCD-
Quentin; ATTORNEY DAD
GENERAL OF THE STATE OF
OPINION
CALIFORNIA,
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, Presiding
Submitted and Filed January 15, 2006
Pasadena, California*
Before: Susan P. Graber, Kim McLane Wardlaw, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Wardlaw
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
879
884 ALLEN v. ORNOSKI
COUNSEL
Michael Satris, Bolinas, California, for the appellant.
Ward A. Campbell, Supervising Deputy Attorney General,
Sacramento, California, for the appellee.
OPINION
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 infir-
mity. 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
ALLEN v. ORNOSKI 885
v. Texas, 514 U.S. 1045 (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 succes-
sive 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 chal-
lenges 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 demon-
strated 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.
1
We hereby order that for purposes of this appeal Allen’s motion for a
certificate of appealability and his application for leave to file a “second
or successive” habeas petition are consolidated.
886 ALLEN v. ORNOSKI
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 (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 peti-
tion. 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 magis-
trate 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
2
The factual basis for Allen’s jury convictions for triple-murder and
conspiracy to murder seven persons is detailed in our opinion affirming
the district court’s denial of Allen’s first habeas petition. Allen v. Wood-
ford, 395 F.3d 979 (9th Cir.), cert. denied, 126 S. Ct. 134 (2005).
ALLEN v. ORNOSKI 887
Allen appealed. In January 2005, we issued an opinion affirm-
ing the district court’s denial of Allen’s habeas petition. Allen
v. Woodford, 395 F.3d 979 (9th Cir.), cert. denied, 126 S. Ct.
134 (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 coun-
sel4 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
3
The same claims Allen brings before us in his habeas petition were
brought before the California Supreme Court. The California Supreme
Court denied Allen’s habeas petition in a one-sentence order: “Petitioner’s
third petition for a writ of habeas corpus and request for stay of execution,
filed December 23, 2005, is denied on the merits.” In re Clarence Ray
Allen, No. S139857 (Cal. Jan. 10, 2006).
4
The district court granted Allen’s motion for leave to proceed in forma
pauperis and his application for appointment of counsel. The Warden does
not cross-appeal these orders.
5
Allen will be seventy-six years old on January 16, 2006, the day before
his appointed date of execution.
6
Allen suffers from a long list of infirmities, including blindness, hear-
ing problems, advanced Type-2 diabetes, complications from a stroke,
heart disease, and complications from a recent heart attack suffered in
September 2005, which have left him confined to a wheelchair.
888 ALLEN v. ORNOSKI
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, No. Civ. S-06-64 FCD/
DAD (E.D. Cal. Jan. 12, 2006).
Judge Damrell properly analyzed Allen’s claims indepen-
dently 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 indepen-
dently 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 sep-
arate claims for relief in his second habeas petition and sup-
porting 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 proce-
dural sphere, we analyze them independently from that per-
spective as well.
7
Each of the parties has variously argued that the two claims should be
considered as one and that they should be considered independently. We
believe that the district court’s separate treatment of the claims is analyti-
cally correct.
ALLEN v. ORNOSKI 889
II.
CERTIFICATE OF APPEALABILITY ON ALLEN’S
AGE AND PHYSICAL INFIRMITY CLAIM
[1] 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 appeala-
bility. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529
U.S. 473, 483-84 (2000). “The petitioner must demonstrate
that reasonable jurists would find the district court’s assess-
ment of the constitutional claims debatable or wrong.” Slack,
529 U.S. at 484; see also Miller-El v. Cockrell, 537 U.S. 322,
338 (2003). To meet this “threshold inquiry,” Slack, 529 U.S.
at 482, 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 orig-
inal) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983) (internal quotation marks omitted)). Even if a question
is well settled in our circuit, a constitutional claim is debat-
able 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
(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 deprive him of his con-
890 ALLEN v. ORNOSKI
stitutional right under the Eighth Amendment to be free from
cruel and unusual punishment. Allen’s petition, however, dis-
plays a woeful lack of support for the proposition that the
Eighth Amendment prohibits execution of the elderly and the
infirm. Allen provides only one case which discusses an
Eighth Amendment claim based upon the advanced age of an
inmate, Hubbard v. Campbell, 379 F.3d 1245 (11th Cir.) (per
curiam), cert. denied, 542 U.S. 958 (2004). Hubbard is
unhelpful, however, because there the Eleventh Circuit upheld
the district court’s dismissal of Hubbard’s petition for lack of
subject matter jurisdiction on the ground that the claim should
have been filed as a second or successive habeas petition. Id.
at 1247. Allen cites no other authority favoring or disfavoring
his legal position.
[2] Allen instead argues that the Supreme Court’s recently
developing Eighth Amendment jurisprudence naturally
extends to a constitutional prohibition against executing the
elderly and infirm. In support, Allen points to the Supreme
Court’s capital case decisions of the post-Furman era, in
which the Court has gradually (1) enlarged the classes of per-
sons who are ineligible for the death penalty, see Ford v.
Wainwright, 477 U.S. 399 (1986) (executing the mentally
incompetent is unconstitutional); Thompson v. Oklahoma, 487
U.S. 815 (1988) (executing youths under sixteen at time of
offense is unconstitutional); Atkins v. Virginia, 536 U.S. 304
(2002) (executing the mentally retarded is unconstitutional);
Roper v. Simmons, 125 S. Ct. 1183 (2005) (executing juve-
niles who committed the offense while under eighteen is
unconstitutional), and (2) narrowed the range of offenses that
are death-eligible, see Coker v. Georgia, 433 U.S. 584 (1977)
(execution for offenses short of murder is unconstitutional);
Enmund v. Florida, 458 U.S. 782 (1982) (executing those
who aided a felony but did not kill or intend to kill is uncon-
stitutional). Allen vaguely suggests that execution of an
elderly person does not comport with “evolving standards of
decency,” in that the execution “offends humanity,” provides
no deterrence value, does not serve any retributive purpose,
ALLEN v. ORNOSKI 891
and violates the norms of domestic and international law.8
However, Allen’s argument fails in two critical respects: (1)
the Supreme Court’s limitations on the use of the death pen-
alty are grounded in the theory that some classes of persons
are less culpable and therefore not deserving of the death pen-
alty and Allen’s age and infirmity do not render him less cul-
pable at the time of his offenses; and (2) Allen cannot
demonstrate the required “objective indicia of consensus” that
“evolving standards of decency” now prohibit the execution
of elderly and infirm persons. Thus, his contention that rea-
sonable jurists could debate whether he has made a substantial
showing of the denial of a constitutional right fails because
there is no clearly established Supreme Court authority, or
any legal authority, supporting his position, even if one
stretches existing Supreme Court authority to its maximum
reach.
The Supreme Court’s rulings in Roper, Atkins, Thompson
and Enmund are inextricably bound to the concept that the
execution of certain classes of inherently less-culpable per-
sons offends the Eighth Amendment’s proportionality require-
ment. In Roper, the Supreme Court enumerated three traits of
juveniles which, as a class, render them less culpable and
therefore unsuitable to be placed in the worst category of
offenders: (1) a “lack of maturity and an underdeveloped
sense of responsibility” resulting in “impetuous and ill-
considered actions and decisions;” (2) a heightened vulnera-
bility to “negative influences and outside pressures;” and (3)
personality that is “more transitory, less fixed.” Roper, 125
S. Ct. at 1195. The Court found that “[t]heir own vulnerability
and comparative lack of control over their immediate sur-
roundings mean juveniles have a greater claim than adults to
8
While international norms may also be instructive in this analysis, in
light of the nonexistence of domestic authority supporting Allen’s claim,
and the lack of definitive international authority provided by Allen, we, as
an intermediate court, decline to consider the asserted practices of foreign
jurisdictions.
892 ALLEN v. ORNOSKI
be forgiven for failing to escape negative influences in their
whole environment,” and therefore concluded that the social
purpose of “[r]etribution is not proportional if the law’s most
severe penalty is imposed on one whose culpability or blame-
worthiness is diminished, to a substantial degree, by reason of
youth and immaturity.” Id. at 1195-96. The Court again
focused on culpability in assessing whether executing juve-
niles fulfilled the social purpose of deterrence and found that
“the absence of evidence of deterrent effect is of special con-
cern because the same characteristics that render juveniles
less culpable than adults suggest as well that juveniles will be
less susceptible to deterrence.” Id. at 1196.
In Atkins, the Court again linked “relative culpability” to
the “penological purposes served by the death penalty.” 536
U.S. at 317. With respect to retribution, the Court found that
because “severity of the appropriate punishment necessarily
depends on the culpability of the offender . . . an exclusion for
the mentally retarded is appropriate.” Id. at 319. Culpability
was again key to the Court’s finding that execution of the
mentally retarded did not serve the penological purpose of
deterrence, because “it is the same cognitive and behavioral
impairments that make these defendants less morally culpable
— for example, the diminished ability to understand and pro-
cess information, to learn from experience, to engage in logi-
cal reasoning, or to control impulses — that also make it less
likely that they can process the information of the possibility
of execution as a penalty and, as a result, control their conduct
based upon that information.” Id. at 320. The Court applied
the same rationale of lessened culpability undermining the
deterrence and retributive effects of capital punishment in
holding that the Eighth Amendment prohibits the execution of
persons who were under sixteen at the time of their offense.
See Thompson, 487 U.S. at 833-38. Similarly, in Enmund, the
Court assessed proportionality based upon the personal culpa-
bility of the defendant, ruling that for an accomplice to a fel-
ony, “criminal culpability must be limited to his participation
ALLEN v. ORNOSKI 893
in the robbery, and his punishment must be tailored to his per-
sonal responsibility and moral guilt.” 458 U.S. at 801.
Allen heavily relies upon Ford, arguing that given Allen’s
age, failing health and length and conditions of confinement
on death row the retributive purposes of capital punishment
would not be served by his execution. In Ford, the Court held
that the Eighth Amendment prohibits the execution of an
insane defendant. In doing so, it relied in part on the rationale
that the execution of a person who does not understand, or is
not even aware of, the punishment that he is about to face
does not serve the death penalty’s aims of deterrence and ret-
ribution. By contrast, here, there is no indication that Allen’s
physical condition or his age has affected his mental acuity.
To the contrary, Allen’s mental state was last evaluated on
December 27, 2005, and he was found competent. Indeed, he
does not claim that he is mentally incompetent in any way.
Ford, then, is inapposite because nothing in the record sug-
gests that Allen’s physical condition and age render him
unable to comprehend the nature and purpose of the death
penalty that he faces.
Nor has Allen argued that his current physical incapacity9
somehow relates to his culpability at the time he committed
the capital offenses. Allen was fifty years old when he orches-
trated the murders of Bryon Schletewitz, Josephine Rocha,
and Douglas White. His age and experience only sharpened
his ability to coldly calculate the execution of the crime.
Nothing about his current ailments reduces his culpability and
thus they do not lessen the retributive or deterrent purposes of
the death penalty.
Moreover, in both Atkins and Roper the Supreme Court
looked to objective indicia of consensus — “the rejection of
9
The Warden vigorously disputes the level of physical incapacitation
Allen currently suffers, relying in part on the interview of Allen by one
of Allen’s experts, Dr. Paul Good.
894 ALLEN v. ORNOSKI
the juvenile death penalty in the majority of States; the infre-
quency of its use even where it remains on the books; and the
consistency in the trend toward abolition of the practice” —
to provide sufficient evidence that society viewed juveniles
and the mentally retarded as “ ‘categorically less culpable
than the average criminal.’ ” Roper, 125 S. Ct. at 1194 (quot-
ing Atkins, 536 U.S. at 316). As the Court noted in both Atkins
and Roper, it is “not so much the number of these States that
is significant, but the consistency of the direction of change.”
Roper, 125 S. Ct. at 1193 (quoting Atkins, 536 U.S. at 315).
Allen’s argument that sixteen states disallow the death penalty
altogether is overly broad. We cannot equate contemporary
judgment that the death penalty is generally inappropriate for
all persons with the specific claim presented here. Allen’s
logic equally leads to the conclusion that the death penalty in
general is contrary to evolving standards of decency, as to the
conclusion that the death penalty as applied to elderly and
infirm prisoners is contrary to the Eighth Amendment. This
position is further weakened by the fact that, if sixteen states
bar the death penalty, then thirty-four states must still permit
the death penalty for elderly and infirm persons. Allen has not
adduced any evidence showing that states are barring execu-
tions specifically of the elderly or infirm.
Allen also argues that there is a de facto practice on the part
of states not to execute elderly persons. He points out that
since 1973, only two persons over the age of seventy have
been executed — James Hubbard, who was seventy-four
when executed by the State of Alabama in 2004, and John B.
Nixon, who was seventy-seven when executed by the State of
Mississippi in 2005. Allen also cites one study which asserts
that only twenty-seven of the 7,311 people executed in the
United States between 1608 and 2002 whose ages were ascer-
tainable were over the age of seventy. Allen “infers” from the
rarity of executions of elderly persons, as shown in the bare
statistics he provides, that there is a pattern or practice, an
evolving standard of decency, of not executing the elderly.
Allen has not, however, adduced any direct evidence of a
ALLEN v. ORNOSKI 895
societal aversion to executing the elderly, such as evidence
demonstrating that juries disproportionately elect not to
impose the death penalty for elderly offenders, or that gover-
nors are more likely to commute death sentences of older pris-
oners or that any State has legislated against the execution of
the elderly and infirm.
It may very well be that other societal forces account for
the paucity of elderly persons executed. It is possible that
more elderly persons die on death row before their appeals are
exhausted, given that the average time spent in prison for a
death row inmate in 2004 was ten years and two months. U.S.
DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULLETIN,
CAPITAL PUNISHMENT 2004, at 11. In addition, most people
commit crimes while in their twenties. In 2004, the mean age
at the time of arrest for a person later sentenced to death was
twenty-eight years old; it is rare for anyone over fifty to be
arrested for a crime that carries the death penalty. Id. at 7.
Allen presents no contrary evidence to suggest that a signifi-
cant number of people commit capital crimes at age fifty and
above. The DOJ Report also belies the notion that there is any
“evolving standard of decency” rejecting execution of the
elderly — a ninety-year-old man sits on death row in Arizona,
forty-four persons aged sixty-five or older are on death row,
and eighty-two persons aged sixty to sixty-four are on death
row across the nation. Id. at 7-8.
Thus, Allen’s age and physical infirmity claim does not fit
within the twin rationales motivating the Supreme Court’s
recent Eighth Amendment jurisprudence. The claim that the
Eighth Amendment forbids the execution of the elderly and
infirm finds no support in our existing law, that of our sister
circuits, or of the Supreme Court. Therefore, Allen’s claim is
not “debatable among jurists of reason” such that another
court could rule in a different manner, nor is it a question that
is “adequate to deserve encouragement to proceed further.”
Lambright, 220 F.3d at 1025 (internal citations omitted), and
should not be certified.
896 ALLEN v. ORNOSKI
[3] Even were we to certify this claim, it would fail on the
merits due to the standards of review applicable under
AEDPA, because the California Supreme Court’s denial of
habeas relief was neither “contrary to, [nor] involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1).
The California Supreme Court denied Allen’s petition “on
the merits,” without any discussion of Allen’s claims or its
reasoning. “We have relaxed AEDPA’s strict standard of
review when the state court reaches a decision on the merits
but provides no reasoning to support its conclusion. Under
such circumstances, we independently review the record to
determine whether the state court clearly erred in its applica-
tion of Supreme Court law.” Pirtle v. Morgan, 313 F.3d 1160,
1167 (9th Cir. 2002) (citing Delgado v. Lewis, 223 F.3d 976,
982 (9th Cir. 2000) (“Federal habeas review is not de novo
when the state court does not supply reasoning for its deci-
sion, but an independent review of the record is required to
determine whether the state court clearly erred in its applica-
tion of controlling federal law.”). However, the independent
review undertaken under Delgado is not the equivalent of de
novo review, but rather is a style of review which views the
state court decision “through the ‘objectively reasonable’ lens
ground by Williams.” Delgado, 223 F.3d at 982 (quoting Wil-
liams v. Taylor, 529 U.S. 362 (2000)). In addition, “although
we independently review the record, we still defer to the state
court’s ultimate decision.” Pirtle, 313 F.3d at 1167.
[4] Even applying this less deferential standard of review,
we find no substantive support for Allen’s legal position; he
is asking us to make new law, which we cannot do. There is
no clearly established federal law, as determined by the
Supreme Court, to support Allen’s age and physical disability
based claim. The Supreme Court has adopted the definition of
new law fashioned in Teague v. Lane, 489 U.S. 288 (1989),
to determine what qualifies as clearly established law under
ALLEN v. ORNOSKI 897
AEDPA. See Williams at 379 (Stevens, J., for four justices)
(“The antiretroactivity rule recognized in Teague, which pro-
hibits reliance on ‘new rules,’ is the functional equivalent of
a statutory provision commanding exclusive reliance on
‘clearly established law.’ ”). Teague counsels that “a case
announces a new rule when it breaks new ground or imposes
a new obligation on the States or the Federal Government,”
or, to put it differently, “if the result was not dictated by pre-
cedent existing at the time the defendant’s conviction became
final.” Teague, 489 U.S. at 301 (emphasis in original). Nota-
bly, Teague offers the Court’s decision in Ford v. Wain-
wright, 477 U.S. 399, 410 (1986), as an example of a case
which broke new ground. Id. We fail to see how Allen’s pro-
posed restriction on capital punishment based upon his status
as an elderly and infirm death row inmate would not qualify
as breaking new ground or imposing a new obligation on the
States or the Federal Government.
III.
THE LACKEY CLAIM
We must first determine whether Allen’s claim that twenty-
three years on death row under “horrific” conditions of con-
finement violates the Eighth Amendment is a “second or suc-
cessive” habeas petition within the meaning of 28 U.S.C.
§ 2244.
[5] Title 28 U.S.C. § 2244 acts as a “gatekeeper” to prevent
petitioners from filing “second or successive” habeas petitions
in the district court without first moving “in the appropriate
court of appeals for an order authorizing the district court to
consider the application.” 28 U.S.C. § 2244(b)(3)(A). Section
2244(b)(2) requires the court of appeals to dismiss the claims
in a “second or successive” habeas petition unless:
(A) the applicant shows that the claim relies on a
new rule of constitutional law, made retroactive to
898 ALLEN v. ORNOSKI
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 exer-
cise 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 evi-
dence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of
the underlying offense.
[6] AEDPA does not define the term “second or succes-
sive.” However, “[t]he Supreme Court, the Ninth Circuit, and
our sister circuits have interpreted the concept incorporated in
this term of art as derivative of the ‘abuse-of-the-writ’ doc-
trine developed in pre-AEDPA cases.” Hill v. Alaska, 297
F.3d 895, 897-98 (9th Cir. 2002). See also Stewart v.
Martinez-Villareal, 523 U.S. 637, 642-43 (1998) (AEDPA’s
“ ‘restrictions on successive petitions constitute a modified res
judicata rule, a restraint on what used to be called in habeas
corpus practice “abuse of the writ.” ’ ”) (quoting Felker v.
Turpin, 518 U.S. 651, 664 (1996)); Calderon v. United States
Dist. Court, 163 F.3d 530, 538 (9th Cir. 1998) (en banc)
(“[a]buse of the writ evolved as a judicially created equitable
doctrine, but it is now codified by the AEDPA” at § 2244(b)),
overruled in unrelated part by Woodford v. Garceau, 538
U.S. 202 (2003); Crouch v. Norris, 251 F.3d 720, 723-25 (8th
Cir. 2001) (applying abuse of the writ principles to assess
prisoner’s challenge to the execution of his sentence); Muniz
v. United States, 236 F.3d 122, 127 (2d Cir. 2001) (per
curiam) (defining second or successive “with reference to the
equitable principles underlying the ‘abuse of the writ’ doc-
trine”); United States v. Barrett, 178 F.3d 34, 44 (1st Cir.
1999) (“The core of the AEDPA restrictions on second or suc-
cessive § 2255 petitions is related to the longstanding judicial
ALLEN v. ORNOSKI 899
and statutory restrictions embodied in the form of res judicata
known as the ‘abuse of the writ’ doctrine.”); Reeves v. Little,
120 F.3d 1136, 1139 (10th Cir. 1997) (per curiam) (noting
that AEDPA restrictions on successive petitions stem from
abuse of the writ doctrine). An “abuse of the writ” occurs
when a petitioner raises a habeas claim that could have been
raised in an earlier petition were it not for “inexcusable
neglect.” McCleskey v. Zant, 499 U.S. 467, 493 (1991).
“[T]he abuse-of-the-writ doctrine . . . concentrate[s] on a peti-
tioner’s acts to determine whether he has a legitimate excuse
for failing to raise a claim at the appropriate time.” Id. at 490.
If the petitioner can show cause for his failure to raise the
claim, he then must demonstrate “ ‘actual prejudice’ resulting
from the errors of which he complains.” Id. at 494 (quoting
United States v. Frady, 456 U.S. 152, 168 (1982)).
[7] Claims that suffering the ravages of death row for a
lengthy duration violate the Eighth Amendment are com-
monly called Lackey claims, after Justice Stevens’ concur-
rence in the Supreme Court’s denial of certiorari in Lackey v.
Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of
certiorari). There, Justice Stevens pointed out that the Court’s
determination in Gregg v. Georgia, 428 U.S. 153 (1976), that
the Eighth Amendment did not prohibit capital punishment
relied heavily on the ground that the death penalty “might
serve ‘two principal social purposes: retribution and deter-
rence.’ ” Lackey, 514 U.S. at 1045 (quoting Gregg, 428 U.S.
at 183). He questioned whether either of those policy grounds
retained any force after an inmate had spent seventeen years
on death row, noting that “the acceptable state interest in retri-
bution has arguably been satisfied by the severe punishment
already inflicted,” id., and that “the additional deterrent effect
from an actual execution now . . . seems minimal,” id. at
1046. Since then, Justice Breyer has also questioned whether
the additional punishment of death after confinement on death
row for “more than a generation” was cruel and unusual pun-
ishment. Foster v. Florida, 537 U.S. 990, 993 (2002) (Breyer,
J., dissenting from denial of certiorari) (arguing that imposi-
900 ALLEN v. ORNOSKI
tion of the death penalty might violate the Eighth Amendment
where Florida courts twice vacated petitioner’s sentence and
the Eleventh Circuit held that his sentence was unconstitu-
tional, but then four months later withdrew all relief); Knight
v. Florida, 528 U.S. 990, 993-94 (1999) (Breyer, J., dissent-
ing from denial of certiorari) (arguing that imposition of the
death penalty might violate the Eighth Amendment where
petitioner had been on death row for twenty-four years and
the Eleventh Circuit found that Florida’s death penalty sen-
tencing procedure was constitutionally defective, but the State
waited more than seven years before holding a new sentenc-
ing hearing); Elledge v. Florida, 525 U.S. 944, 945 (1998)
(Breyer, J., dissenting from denial of certiorari) (“Not only
has he, in prison, faced the threat of death for nearly a genera-
tion, but he has experienced that delay because of the State’s
own faulty procedures . . . .”).10 Allen claims that, enduring
this death row phenomenon, his punishment has been made
all the more acute by the horrific conditions and unconstitu-
tional, substandard medical care provided at San Quentin.
[8] Allen brings his Lackey claim for the first time in this
second habeas petition. A petition for review of a new claim
that could have been raised earlier may be treated as the func-
tional equivalent of a second or successive petition for a writ
of habeas corpus. See Thompson v. Calderon, 151 F.3d 918,
921 (9th Cir. 1998) (en banc) (“In most cases when the factual
predicate for a Rule 60(b) motion also states a claim for a suc-
cessive petition under 28 U.S.C. § 2244(b), . . . the Rule 60(b)
motion should be treated as a successive habeas petition.”);
Felker, 101 F.3d at 661 (“Rule 60(b) cannot be used to cir-
cumvent restraints on successive habeas petitions.”).
[9] Allen could have brought his Lackey claim in his first
habeas petition in 1988, when he had already been on death
10
In all three cases, however, much of the delay had been due to the
State’s own errors, a situation not present here, as the courts on both direct
and habeas appeal have uniformly rejected each of Allen’s claims.
ALLEN v. ORNOSKI 901
row for six years, in his first amended habeas petition, when
he had been on death row for nine years, or at some other
point during the course of the proceedings on his first habeas
petition in federal court from 1993 to 2005. Allen cites the
Supreme Court case Stewart v. Martinez-Villareal, to bolster
his argument that his Lackey claim could not have been
brought earlier because it was not ripe. 523 U.S. at 642-43.
Martinez-Villareal is distinguishable, however, because it
dealt with a Ford claim of mental incompetency. See id. at
640; Ford, 477 U.S. at 410 (holding that “the Eighth Amend-
ment prohibits the State from inflicting the penalty of death
upon a prisoner who is insane”). Unlike a Ford claim of
incompetence, a Lackey claim does not become ripe only after
a certain number of years or as the final hour of execution
nears. There is no fluctuation or rapid change at the heart of
a Lackey claim, but rather just the steady and predictable pas-
sage of time. As the district court noted, that the passage of
time makes his Lackey claim stronger is irrelevant to ripeness,
because the passage of time strengthens any Lackey claim.
Allen’s initial execution date was in 1988, and by the time
habeas proceedings resumed in federal court in 1993, he
already had been suffering the psychological distress of death
row and impending execution for eleven years. Those pro-
ceedings did not end until 2005. Allen could have sought to
amend his petition to state a Lackey claim at any time during
their pendency. Allen fails to show adequate cause as to why
he delayed raising his Lackey claim.
[10] We conclude that because Allen could have brought
his Lackey claim earlier, it is a “second or successive” habeas
application under the abuse of the writ doctrine and is gov-
erned by section 2244. See Ortiz v. Stewart, 149 F.3d 923,
944 (9th Cir. 1998) (holding that a Lackey claim, not raised
in a first § 2254 petition, does not fall within either exception
to AEDPA’s bar against subsequent claims), cert. denied, 526
U.S. 1123 (1999); Gerlaugh v. Stewart, 167 F.3d 1222, 1223-
24 (9th Cir. 1999) (same); Ceja v. Stewart, 134 F.3d 1368,
1369 (9th Cir. 1998) (affirming district court’s denial of “sec-
902 ALLEN v. ORNOSKI
ond or successive” petition based on failure to obtain permis-
sion to file from the Ninth Circuit because no Supreme Court
or Ninth Circuit authority recognizes a Lackey claim as an
exception to AEDPA). It is undisputed that Allen did not seek
our permission to file his Lackey claim in the district court.
Therefore, the district court correctly dismissed this claim
pursuant to 28 U.S.C. § 2244(b)(3)(A).
Allen now seeks permission to file his Lackey claim as a
“second or successive” habeas petition. We deny this request
because Allen has not made a prima facie case that he has sat-
isfied the requirements of section 2244. 28 U.S.C.
§ 2244(b)(3)(C).
[11] Even were we to find that Allen’s Lackey claim was
not a “second or successive” habeas petition and reach the
merits of his claim, we would necessarily conclude that the
California Supreme Court’s denial of habeas relief was not
“contrary to,” and did not involve “an unreasonable applica-
tion of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
[12] The Supreme Court has never held that execution after
a long tenure on death row is cruel and unusual punishment.
Justices Stevens and Breyer have argued that this claim
should be heard by the Court, as discussed above, in response
to the Court’s denial of certiorari in several death penalty
cases where an inmate has served a lengthy period of time on
death row. See Foster, 537 U.S. at 991-93 (Breyer, J., dissent-
ing from denial of certiorari); Knight, 528 U.S. at 993
(Breyer, J., dissenting from denial of certiorari); Elledge, 525
U.S. at 944-46 (Breyer, J., dissenting from denial of certio-
rari); Lackey, 514 U.S. 1045-47 (Stevens, J., respecting denial
of certiorari). However, Justice Thomas, concurring in
Knight, noted that he is “unaware of any support in the Amer-
ican constitutional tradition or in this Court’s precedent for
the proposition that a defendant can avail himself of the pano-
ply of appellate and collateral procedures and then complain
ALLEN v. ORNOSKI 903
when his execution is delayed.” 528 U.S. at 990 (Thomas, J.,
concurring). Allen cannot credibly claim that there is any
clearly established law, as determined by the Supreme Court,
which would support his Lackey claim.
[13] Allen also cannot credibly argue that “the evolving
standards of decency that mark the progress of a maturing
society,” Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plural-
ity opinion), as evidenced by the decisions of state and federal
courts, are moving toward recognition of the validity of
Lackey claims. See, e.g., Roper v. Simmons, 125 S. Ct. at
1192-1194 (surveying state prohibitions on the death penalty
for juveniles and finding that the “consistency of direction of
change has been demonstrated” as to justify a constitutional
prohibition). Indeed, we denied outright a Lackey claim in
McKenzie v. Day, holding that “[w]e cannot conclude that
delays caused by satisfying the Eighth Amendment them-
selves violate it.” 57 F.3d 1461, 1467 (9th Cir.), opinion aff’d
and adopted, 57 F.3d 1493 (9th Cir. 1995) (en banc). We fur-
ther reasoned that “[i]t 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.” Id. at 1466.
Numerous other federal and state courts have rejected
Lackey claims. See Chambers v. Bowersox, 157 F.3d 560,
568, 570 (8th Cir. 1998) (holding that Lackey claim is proce-
durally barred by failure to raise in state courts; but nonethe-
less noting that death row delays do not constitute cruel and
unusual punishment because delay results from “desire of our
courts, state and federal, to get it right, to explore . . . any
argument that might save someone’s life”); White v. Johnson,
79 F.3d 432, 439 (5th Cir. 1996) (“The state’s interest in
deterrence and swift punishment must compete with its inter-
est in insuring that those who are executed receive fair trials
with constitutionally mandated safeguards. . . . White has ben-
efitted from this careful and meticulous process and cannot
904 ALLEN v. ORNOSKI
now complain that the expensive and laborious process of
habeas corpus appeals which exists to protect him has vio-
lated other of his rights.”); Stafford v. Ward, 59 F.3d 1025,
1028 (10th Cir.) cert. denied, 515 U.S. 1173 (1995) (noting
that to date, no federal court had recognized claim); Fearance
v. Scott, 56 F.3d 633, 639 (5th Cir. 1995) (“Fearance was not
the unwilling victim of a Bleak House-like procedural system
hopelessly bogged down; at every turn, he, without complain-
ing about the accumulating period on death row, sought
extensions of time, hearings and reconsiderations.”); Free v.
Peters, 50 F.3d 1362, 1362 (7th Cir. 1995) (per curiam) (any
inordinate delay in execution of defendant’s death sentence
was directly attributable to his own conduct and thus did not
constitute cruel and unusual punishment); Williams v. Ander-
son, 174 F. Supp. 2d 843, 874-75 (N.D. Ind. 2001), aff’d sub
nom., Williams v. Davis, 301 F.3d 625 (7th Cir. 2002); Ex
Parte Bush, 695 So. 2d 138, 139-140 (Ala. 1997); State v.
Schackart, 947 P.2d 315, 336 (Ariz. 1997); Hill v. State, 962
S.W.2d 762, 767 (Ark. 1998) (holding that it was not cruel
and unusual punishment to resentence the defendant to death
even though he had been on death row for more than fifteen
years); People v. Massie, 19 Cal. 4th 550, 574 (1998); People
v. Frye, 18 Cal. 4th 894, 1029-31 (1998); People v. Hill, 3
Cal. 4th 959, 1014-16 (1992), overruled on other grounds by
Price v. Superior Court, 25 Cal. 4th 1046 (2001); Parker v.
State, 873 So. 2d 270, 294 (Fla. 2004), cert. denied, 125 S. Ct.
868 (2005) (concluding that an eighteen-year span between
indictment for capital murder and resentencing to death was
not cruel and unusual punishment); Booker v. State, 773 So.
2d 1079, 1096 (Fla. 2000) (per curiam); McKinney v. State,
992 P.2d 144, 150-52 (Idaho 1999); State v. Smith, 931 P.2d
1272, 1287-89 (Mont. 1996); Bell v. State, 938 S.W.2d 35, 53
(Tex. Crim. App. 1996). Allen’s Lackey claim is devoid of
support in federal or state law and therefore the denial of
habeas relief by the California Supreme Court, even without
a thorough discussion of the merits, could not possibly be
construed to be “contrary to, or involve[ ] an unreasonable
ALLEN v. ORNOSKI 905
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).
IV.
CONSTITUTIONAL CHALLENGE TO
28 U.S.C. § 2254(d)
Allen for the first time on appeal challenges the constitu-
tionality of AEDPA’s standards for federal court habeas
review of State court judgments, arguing that 28 U.S.C.
§ 2254(d) violates the Supremacy Clause, Article III’s case or
controversy requirement, and the principle of separation of
powers. Allen offers no adequate explanation for his failure
to raise his section 2254(d)(1) challenge in the district court;
in so doing, he deprived the district court of an opportunity to
address the merits of his claim. “[A] party cannot treat the dis-
trict court as a mere ill-placed bunker to be circumvented on
his way to this court where he will actually engage his oppo-
nents.” Handa v. Clark, 401 F.3d 1129, 1132 (9th Cir. 2005)
(citing Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th Cir.
1996)).
[14] Allen concedes that he failed to properly proceed with
this claim, but relies on our principle that “[w]hile issues not
raised to the district court normally are deemed waived, we
have recognized three narrow exceptions to this general rule.”
United States v. Flores-Montano, 424 F.3d 1044, 1047 (9th
Cir. 2005). We may exercise discretion to review newly pre-
sented issues if: “(1) there are exceptional circumstances why
the issue was not raised in the trial court; (2) the new issue
arises while the appeal is pending because of a change in the
law; or (3) the issue presented is purely one of law and the
opposing party will suffer no prejudice as a result of the fail-
ure to raise the issue in the trial court. Id. (internal quotations
omitted). “Further exception may be made when plain error
906 ALLEN v. ORNOSKI
has occurred and an injustice might otherwise result.” Id.
(internal quotations omitted).
[15] Allen does not satisfy any of these exceptions. First,
Allen failed to present any exceptional circumstances satisfac-
torily explaining why he did not raise the issue in the district
court. Second, AEDPA’s constitutionality is not a new issue;
Allen and his attorneys have known since April 24, 1996, the
date AEDPA was enacted, that any subsequent petition Allen
filed would be governed by AEDPA’s provisions, including
section 2254(d)(1). Third, although the constitutionality of
section 2254(d)(1) is purely a question of law, the prejudice
to the State when a petitioner brings this claim on the eve of
his execution is great. When a petitioner seeks an equitable
remedy, the federal courts “must take into consideration the
State’s strong interest in proceeding with its judgment and
[the petitioner’s] obvious attempt at manipulation.” Gomez v.
United States Dist. Court, 503 U.S. 653, 654 (1992) (“This
claim could have been brought more than a decade ago. There
is no good reason for this abusive delay . . . . A court may
consider the last-minute nature of an application to stay exe-
cution in deciding whether to grant equitable relief.”). In addi-
tion, a finding of waiver is particularly appropriate here
where, in his district court filing, Allen discussed AEDPA’s
standards of review, argued the merits of his claim with
respect to AEDPA, and specifically invoked the wording of
the AEDPA deference standard.
[16] Moreover, by including this claim for the first time in
his motion before us for a certificate of appealability, Allen
violates both Ninth Circuit Rule 22-1 and Federal Rule of
Appellate Procedure 22(b)(1). 9TH CIR. R. 22-1(a)( “The court
of appeals will not act on a motion for a COA if the district
court has not ruled first.”); FED. R. APP. P. 22(b)(1) (“If an
applicant files a notice of appeal, the district judge who ren-
dered the judgment must either issue a certificate of appeala-
bility or state why a certificate should not issue.”). Given
Allen’s failure to raise his constitutional challenge to AEDPA
ALLEN v. ORNOSKI 907
in a timely and proper manner, we decline Allen’s invitation
to address this momentous issue at this stage of the proceed-
ings.11
V.
CONCLUSION
[17] Based on the foregoing, we deny Allen’s motions for
leave to file a second or successive habeas petition and certifi-
cation of appealability. Our discussion of the issues presented
by this appeal also reveals that Allen has not demonstrated
“the presence of substantial grounds upon which relief might
be granted.” Barefoot v. Estelle, 463 U.S. 880, 895 (1983);
Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997),
abrogation on other grounds recognized by Jackson v. Roe,
425 F.3d 654, 658-61 (9th Cir. 2005) (discussing impact of
Supreme Court’s decision in Rhines v. Weber, 125 S. Ct. 1528
(2005)). Accordingly, we also deny Allen’s emergency
motion for a stay of execution.
JUDGMENT OF THE DISTRICT COURT
11
We note that we have previously rejected the claim that AEDPA vio-
lates Article III. See Duhaime v. Ducharme, 200 F.3d 597, 600-01 & n.5
(9th Cir. 2000). Like Allen, Duhaime argued that section 2254(d)(1) vio-
lates Article III because the lower federal courts have a constitutional duty
to “ ‘say what the law is.’ ” Duhaime, 200 F.3d at 600-01 & n.5 (citing
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803)). The
Duhaime court acknowledged that prior Ninth Circuit cases had not
addressed petitioner’s exact arguments, but Duhaime concluded that the
circuit’s prior cases had “implicitly” rejected the argument that section
2254(d)(1) was unconstitutional under Article III. See id. at 601. “Section
2254(d) merely limits the source of clearly established law that the Article
III court may consider, and that limitation serves to govern prospectively
classes of habeas cases rather than offend the court’s authority to interpret
the governing law and to determine the outcome in any pending case.” Id.
In any event, regardless of AEDPA’s constitutionality, as our foregoing
analysis explains, Allen’s Eighth Amendment claims find no support in
the law.
908 ALLEN v. ORNOSKI
AFFIRMED; MOTION FOR CERTIFICATION OF
APPEALABILITY DENIED; MOTION FOR AUTHORI-
ZATION OF A SECOND OR SUCCESSIVE APPLICA-
TION DENIED; MOTION FOR STAY OF EXECUTION
DENIED.