Clarence Ray Allen v. Steven W. Ornoski, Warden, of the California State Prison at San Quentin Attorney General of the State of California

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 infirmity. 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 v. Texas, 514 U.S. 1045 , 115 S.Ct. 1421 , 131 L.Ed.2d 304 (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 successive 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. Finally, for the first time on appeal, Allen challenges 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…