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

57 F.3d 1493 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. May 9, 1995. Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, WA, for petitioner-appellant. Pamela P. Collins, Asst. Atty. Gen., Helena, MT, for respondent-appellee. Appeal from the United States District Court for the District of Montana. Before: WALLACE, Chief Judge, BROWNING, WIGGINS, BRUNETTI, KOZINSKI, THOMPSON, O'SCANNLAIN, TROTT, RYMER, KLEINFELD, and HAWKINS, Circuit Judges. ORDER 1 McKenzie, a prisoner awaiting execution in the State of Montana, appeals from the district court's denial of his petition for writ of habeas corpus. A panel of this court denied McKenzie's motion for stay of execution. McKenzie v. Day, 57 F.3d 1461, 1470 (9th Cir.1995). We have taken this case en banc and now adopt the panel's order as our own and deny the stay for the reasons stated therein. 2 As an alternative ground for denying the stay, we conclude that McKenzie is not entitled to relief under any of the theories he has advanced. 3 McKenzie contends that his execution…

ORDER

McKenzie, a prisoner awaiting execution in the State of Montana, appeals from the district court’s denial of his petition for writ of habeas corpus. A panel of this court denied McKenzie’s motion for stay of execution. McKenzie v. Day, 57 F.3d 1461, 1470 (9th Cir.1995). We have taken this ease en banc and now adopt the panel’s order as our own and deny the stay for the reasons stated therein.

As an alternative ground for denying the stay, we conclude that McKenzie is not entitled to relief under any of the theories he has advanced.

McKenzie contends that his execution would constitute cruel and unusual punish *1494 ment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. He argues that to execute him after the great delay that has occurred between his conviction and date of execution (20 years), combined with the repeated resetting of his execution date (8 times), and the allegedly unconstitutional conditions of his confinement, amount to cruel and unusual punishment.

In 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), we…

in which MICHAEL DALY HAWKINS, Circuit Judge, joins, dissenting:

I respectfully dissent.

The majority of the en banc court adopts the panel opinion as its own. This fails to decide McKenzie’s claims on the merits.

The panel issued a certificate of probable cause. In this circumstance, we must address the merits of the petitioner’s claims. “When a certificate of probable cause is issued by the district court, as it was in this case, or later by the court of appeals, petitioner must then be afforded an opportunity to address the merits, and the court of appeals is obligated to decide the merits of the appeal.” Barefoot v. Estelle, 463 U.S. 880, 893 , 103 S.Ct. 3383, 3395 , 77 L.Ed.2d 1090 (1983). We said the same thing in Campbell. Campbell v. Wood, 18 F.3d 662, 680 (9th Cir.1994).

The majority’s assertion of what it would decide if alternatively it should reach the merits, is not a decision on the merits; it is simply conclusory dicta adopting language from 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). In my view, this does not satisfy our obligation un *1495 der…

dissenting.

In a virtually identical case, the Supreme Court granted a stay of execution to permit the district court to consider the same issues raised by petitioner in this proceeding. See Lackey v. Scott, — U.S. -, 115 S.Ct. 1818 , 131 L.Ed.2d 741 (1995). We are obliged to follow the same course here. It is entirely inappropriate for this court to resurrect our vacated opinion in Richmond v. Lewis, 948 F.2d 1473, 1491-92 (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), which rejected these claims five years before the Supreme Court’s action in Lackey. I would also grant the stay for the reasons given by Judge Norris in his dissenting panel opinion.