Duncan Peder McKenzie Jr. v. Rick Day, Director, Department of Corrections and Human Services

57 F.3d 1461 Duncan Peder McKENZIE, Jr., Petitioner-Appellant, v. Rick DAY, Director, Department of Corrections and Human Services, Respondent-Appellee. No. 95-99006. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 6, 1995. Decided May 8, 1995. 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." Background The protracted procedural history of this case is a matter of public record and need not be…

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.”

Background

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 bane and petition for certiorari were all rejected, the ease 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…

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 rale 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. Scott, — U.S. -, 115 S.Ct. 1818 , 131 L.Ed.2d 741 (1995). 1 Instead, we held on to this case in *1471 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…