Ceja

Order; Dissent by

This matter is before us on appeal from the district court’s January 19,1998 denial of *1369 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…

Dissenting:

I respectfully dissent from the majority’s summary refusal to grant a stay of execution and to address Jose Ceja’s claim that to execute him now, after 23 years of incarceration, would violate the Eighth Amendment’s prohibition against the infliction of cruel and unusual punishment. Accordingly, I would grant a certificate of appealability, see 28 U.S.C. § 2253 (c)(1) (West 1997), and address the merits of his claims.

I speak first to the circumstances of the man whose claims the majority declines to review. Ceja has been incarcerated on death row since December 19, 1974 — twenty-three (23) years. He has spent more time on death row than any other inmate in Arizona, possibly more than any other inmate in the United States. Ceja has spent more than half of his life on death row, entering at the age of 19. He is now 42. At the start, he was an irresponsible, street-tough teenager without a high school degree. He is now a middle-aged man with a GED and several college courses to his credit who has held employment as a porter on death row and as a law clerk in the law library at the prison.

For twenty-three years, Ceja has suffered the anxiety of impending death and the…