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Clarence Allen LACKEY





Classification: Murderer
Characteristics: Rape - Robbery
Number of victims: 1
Date of murder: July 31, 1977
Date of birth: August 3, 1954
Victim profile: Toni Diane Kumph (female, 20)
Method of murder: Stabbing with knife
Location: Tom Green County, Texas, USA
Status: Executed by lethal injection in Texas on May 20, 1997

clemency petition



Date of Execution:
May 20, 1997
Clarence Lackey #591
Last Statement:

I would like to thank my Lord Jesus Christ for keeping me strong all these years. I would also like to thank my mother for standing by me all these years. I would also like to thank my pen pals, Joe and Camille Tilling and JoAnn for helping me stay strong all these years. I also thank my two lawyers, Rita and Brent, for fighting to keep me alive.

I love you, Mom -


Clarence Allen Lackey

Executed: May 20, 1997

Convicted in the abduction and slashing death of Diane Kumph, 20, in Lubbock. Kumph was raped and beaten and had her throat slashed by Lackey, who also burglarized her apartment. After the Texas Court of Criminal Appeals reversed his conviction, he was tried and convicted a second time in 1983.


Lackey executed for '77 slaying

By Graham Underwood - Avalanche-Journal

May 5, 1997

HUNTSVILLE - Clarence Allen Lackey died by lethal injection Tuesday for the abduction, rape and slaying of Toni Diane Kumpf almost 20 years ago.

''I would like to thank my Lord Jesus Christ for keeping me strong all these years,'' the 42-year-old former Lubbock construction worker said in a deep, growl-like voice as he lay on his back on the execution table. A tattered black Bible, its spine held together by white masking tape, lay on his chest.

''I would also like to thank my mother for standing by me all these years.'' Lackey also thanked several friends before telling Warden Morris Jones, ''I'm through, warden.''

The three drugs used in the execution had begun flowing into both of Lackey's arms by 6:07 p.m.

''I love you, Mom,'' Lackey said shortly before he softly grunted. Neither Lackey's mother, Ann, nor any other relative was present for the execution. Six minutes after the drugs began flowing, a small hand-size door opened to Lackey's left and a white, canister-shaped object was placed on the ledge, a signal to Jones that a lethal dosage of potassium chloride and sodium thiopental had been completed.

Lackey, dressed in a blue uniform issued to inmates at the time of their release, lay with his eyes open. He was pronounced dead at 6:17 p.m., and a physician closed Lackey's eyes.

''Praise God! Jesus!'' husband and wife ministers Jack and Irene Wilcox exclaimed in whispers. The couple were the only witnesses Lackey requested to be present.

''I heard he thanked Jesus,'' said Jim Kumpf, whose 23-year-old daughter was killed by Lackey in July 1977. ''That pleased me very much. It really did. At least he had religion.''

None of Miss Kumpf's survivors attended the execution. Her sister, Julie, asked to send Lackey a letter earlier in the day. The request was denied, said David Nunnelee, a spokesman for the Texas Department of Criminal Justice.

''We decided not to at this stage in the game,'' Nunnelee said. ''It's been 20 years.''

Lackey was visited at 8:30 a.m. by his mother and an uncle. On Monday, he also received a 45-minute visit from Sister Helen Prejean, the anti-death penalty activist portrayed in the movie ''Dead Man Walking.''

Records at the TDCJ Ellis Unit, where Lackey was held before being taken to the death chamber about 15 miles away, show he passed the day of his death calmly and spent much of the time lying on his bunk and fanning himself.

''He's been ready to go for a long time,'' Nunnelee said. ''Last year, when he got his stay, there's no doubt he was relieved. But what I hear from Ellis, he's ready to go.''

At about 3:30 p.m., Lackey received his last meal: t-bone steak, a large salad, french fries and chocolate ice cream. His request for a pack of Camel cigarettes was denied because of prison tobacco policy.

Lackey's execution, the second this week and the 13th this year in Texas, drew about 10 protesters. They gathered behind banners at a corner outside the prison and were kept by guards behind a strand of yellow tape.

''Gray shirts, you can't hide,'' some chanted, referring to the corrections officers' uniforms. ''We charge you with homicide!''

Before the execution, Nunnelee said the demonstrations have been diminishing.

''Even in the last weeks, they've shrunken,'' he said. ''We've been called murderers, and Huntsville has been likened to Auschwitz and Buchenwald by loudspeaker. The past few have been pretty quiet.''

Lackey was arrested on his 23rd birthday in an Amarillo motel for the slaying of Miss Kumpf, a Tech Health Sciences Center secretary who was dragged out of her Avenue W apartment. Lackey had been released five months earlier from a state prison where he had been serving time for a 1974 burglary with intent to commit rape.

Lackey also had been questioned for another rape a few weeks before Kumpf was killed. The victim in that assault did not press charges.

Detective Randy Ward, who drove Lackey back from Amarillo, said in an earlier interview that Lackey admitted killing Kumpf, a stranger. The officer said Lackey apparently became angry because Kumpf hit him as she was being raped. The statement was not evidence in Lackey's trials.

Lackey is the first Lubbock inmate to be executed in more than 40 years and the first to die by lethal injection. The county's last execution was Walter Whitaker Jr., 23, who died in September 1954 in Huntsville's electric chair.

Lackey is the state's 120th execution since Texas resumed capital punishment in the early 1980s.


28 F.3d 486

Clarence LACKEY, Petitioner-Appellant,
Wayne SCOTT, Director, Director, Texas Department of
Criminal Justice Institutional Division,

No. 93-8529.

United States Court of Appeals,
Fifth Circuit.

Aug. 2, 1994.
Rehearing and Suggestion for Rehearing En Banc Denied Aug. 30, 1994.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, DUHE, and BARKSDALE, Circuit Judges.

DUHE, Circuit Judge:

Clarence Lackey, a Texas death row inmate, appeals the district court's decision denying his petition for writ of habeas corpus. We affirm.


In 1983, a Texas jury found Clarence Lackey guilty of capital murder.1 At the punishment phase of the trial, the jury answered affirmatively the special issues submitted under the former Tex.Code Crim.Proc.Ann. art. 37.071(b),2 requiring the trial court to impose a death sentence. In 1989, the Texas Court of Criminal Appeals affirmed Lackey's conviction and sentence. See Lackey v. State, 819 S.W.2d 111 (Tex.Crim.App.1989). Shortly thereafter, the Supreme Court decided Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Lackey petitioned the Court of Criminal Appeals for rehearing in light of that opinion. After considering Lackey's Penry claims, the court affirmed the judgment. See Lackey v. State, 819 S.W.2d 111, 128 (Tex.Crim.App.1991). Following this affirmance, Lackey sought a writ of habeas corpus in state court, which was denied. Lackey then filed a federal habeas petition and request for a stay of execution. The district court granted the stay, and after briefing and an evidentiary hearing, denied relief. This appeal followed.


I. Penry Claims

During the punishment phase of Lackey's trial, he requested an instruction regarding mitigating evidence, which was denied. On appeal, Lackey contends that the trial court's refusal to give the requested instruction unconstitutionally restricted his opportunity to present mitigating evidence. Specifically, Lackey argues that, without the requested instruction, the Texas special issues did not allow the jury to give mitigating effect to the following evidence: (1) his intoxication at the time of the offense; (2) his history of excessive drinking; (3) his low intelligence; and (4) his childhood abuse. In support of his arguments, he relies on the Supreme Court's decision in Penry, 492 U.S. at 302, 109 S.Ct. at 2934, 106 L.Ed.2d 256 (1989), and the cases that have clarified its holding.

In Penry, the Supreme Court held that, absent additional instructions to the jury, the Texas special issues did not permit the jury to give effect to the mitigating evidence of Penry's mental retardation and history of childhood abuse. According to the Court, in the absence of an instruction defining the term "deliberately" in the first special issue, the jury may have been precluded from giving effect to their possible opinion that Penry's mental retardation and history of childhood abuse made him "less able than a normal adult to control his impulses or to evaluate the consequences of his conduct" and thus less personally culpable. Id. at 323, 109 S.Ct. at 2949.

With respect to the second issue, the Court found that the mitigating evidence was a double-edged sword: it mitigated his culpability and at the same time it indicated that he would be dangerous in the future. Id. at 324, 109 S.Ct. at 2949. Finally, the evidence was not relevant to the third issue. The Court concluded that the state court erred by not instructing the jury that it could consider and give effect to the mitigating evidence of Penry's mental retardation and childhood abuse by declining to impose the death sentence.

Subsequent to Penry, the Supreme Court explained that a state's refusal to give additional instructions does not amount to constitutional error unless there is a " 'reasonable likelihood that the jury applied the challenged instruction in a way that prevents the consideration of constitutionally relevant mitigating evidence.' " Johnson v. Texas, --- U.S. ----, ----, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990)). Applying this standard, we hold that Lackey's mitigating evidence did not require additional instruction.

At the punishment phase of the trial,3 Lackey called Dr. Herbert Modlin, a psychiatrist and expert witness, to testify. Dr. Modlin described Lackey as a "periodic drinker"--a person who does not need daily drinks, but when he does drink, he often drinks too much causing him to blackout. Dr. Modlin attributed Lackey's crime to an alcohol-induced blackout that caused Lackey to lose contact with reality and rendered him capable of engaging in automatic behavior. Lackey adduced additional evidence that his drinking problem was treatable, that he was a good candidate for treatment, and that diagnostic and treatment facilities were available to him in prison. Dr. Modlin concluded that, in his expert opinion, Lackey was not likely to pose a future threat to society.

We have previously stated that the Texas sentencing scheme does not preclude the jury from giving mitigating effect to evidence of a defendant's voluntary intoxication at the time of the offense. See, e.g., James v. Collins, 987 F.2d 1116, 1121 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 30, 125 L.Ed.2d 780 (1993); Cordova v. Collins, 953 F.2d 167, 170 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 959, 117 L.Ed.2d 125 (1992).

Unlike Penry's mental retardation and childhood abuse, "voluntary intoxication is not the kind of 'uniquely severe permanent handicap[ ] with which the defendant was burdened through no fault of his own' that requires a special instruction to ensure that the mitigating effect of such evidence finds expression in the jury's sentencing decision." Cordova, 953 F.2d at 170 (quoting Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir.1992), aff'd, --- U.S. ----, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993)). "[E]vidence of voluntary intoxication can be given full effect by the jury in deciding whether the defendant acted deliberately." Id. Furthermore, the sentencing jury could have reasonably taken into consideration Dr. Modlin's testimony that Lackey would not be a future threat to society in answering the second issue.4

Likewise, no special instruction was necessary to effectuate evidence presented on Lackey's history of childhood abuse or low intelligence. At the sentencing hearing, Lackey's mother told the jury that during his childhood she and Lackey were physically abused by his father. With regard to his low intelligence, both Lackey's mother and Dr. Modlin testified that Lackey did poorly in school. Additionally, Dr. Modlin testified that Lackey's IQ was below normal.5

This evidence was not relevant to the first special issue because there was no suggestion that Lackey's criminal act was attributable to his low intelligence or childhood abuse. See Madden v. Collins, 18 F.3d 304, 307 (5th Cir.1994) (stating that to be relevant there must be a nexus between the mitigating evidence and the criminal act).

To the contrary, Dr. Modlin testified that Lackey's background and psychological profile could not explain his crime. Furthermore, Lackey's trial counsel argued to the jury that the evidence of Lackey's low intelligence and history of childhood abuse were not offered to excuse Lackey's crime, but rather to show that he would not be a future danger to society. We conclude that the jury could have reasonably considered this evidence in answering the second issue.

Because Lackey's mitigating evidence, as proffered, was within the jury's effective reach, acceptance of Lackey's claim would require this Court to announce a new rule of constitutional law. Consequently, federal habeas relief is foreclosed. See Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 1075-76, 103 L.Ed.2d 334 (1989).

II. Intoxication/Insanity Instruction

Lackey contends that the following instruction, given pursuant to section 8.04 of the Texas Penal Code, prevented the jury from giving mitigating effect to his evidence of voluntary intoxication at the time of the offense:

You are instructed that under our law neither intoxication nor temporary insanity of mind caused by intoxication shall constitute any defense to the commission of crime. Evidence of temporary insanity caused by intoxication may be considered in mitigation of the penalty attached to the offense.

By the term "intoxication" as used in this Charge is meant that at the time of the conduct charged, the defendant, as a result of voluntary intoxication, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law which he has found to have violated.

Now, if you find from the evidence that the defendant, Clarence Allen Lackey, at the time of the commission of the offense for which he is on trial was laboring under temporary insanity as above defined, produced by voluntary intoxication as defined, that you may take such temporary insanity into consideration in mitigation of the penalty which you attach to the offense for which you have found him guilty.

Lackey argues that the instruction precluded the jury from considering mitigating evidence of voluntary intoxication that did not rise to the level of temporary insanity. In effect, Lackey is arguing that the jury was precluded from considering evidence that he did not ask them to consider. He did not present evidence or argue at trial that his voluntary intoxication amounted to anything less than temporary insanity. Rather, he presented evidence that his criminal conduct was attributable to an "alcoholic blackout," which caused him to lose contact with reality and rendered him capable of engaging in automatic behavior. Because Lackey failed to proffer evidence of non-insane intoxication in mitigation of punishment, whether the jury could properly consider it is not a proper subject for habeas review. See Delo v. Lashley, --- U.S. ----, ----, 113 S.Ct. 1222, 1225, 122 L.Ed.2d 620 (1993) ("Nothing in the Constitution obligates state courts to give mitigating circumstantial instructions when no evidence is offered to support them.")

III. Interference of the Texas Capital Sentencing Scheme With Counsel's Presentation of Evidence

Appellant argues that the Texas capital sentencing statute unconstitutionally interfered with his trial counsel's ability to make decisions about his defense. Specifically, Lackey argues that because mental health evidence could be considered in aggravation of the second special issue, the statutory scheme prevented his trial counsel from developing and presenting mitigating evidence about his mental condition. We have considered and rejected this precise argument in previous cases. See Black v. Collins, 962 F.2d 394, 407 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992); May v. Collins, 948 F.2d 162, 166-68 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 907, 116 L.Ed.2d 808 (1992).

IV. Ineffective Assistance of Counsel

Lackey suggests that his trial counsel rendered ineffective assistance by failing to produce a mental health expert to develop a nexus between Appellant's childhood abuse and his violence as an adult. He also suggests that his appellate counsel was ineffective for failing to pursue a challenge to the state law prohibition against informing jurors of the legal effect of a failure to agree on answers to the special issues. Because Lackey did not raise these claims before the state court on habeas review or the federal district court,6 we cannot consider his claims here. Alexander v. McCotter, 775 F.2d 595, 603 (5th Cir.1985); see also Barnard v. Collins, 958 F.2d 634, 643 n. 12 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993).

V. Denial of Funds for expert assistance

Lackey contends that the trial court unconstitutionally denied him funds for the assistance of non-psychiatric experts. The district court correctly found that Appellant had procedurally defaulted the claim in state court. Lackey did not request such assistance on the record or obtain a ruling, and the state habeas court held this claim was procedurally barred. When a state-law default prevents the state court from reaching the merits of a federal claim, that claim cannot be reviewed absent a showing of cause and prejudice. Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Cowart v. Hargett, 16 F.3d 642, 644-45 (5th Cir.1994). Because Lackey has not even attempted to argue cause and prejudice, we are precluded from considering his claim.

VI. Punishment-phase Instructions Regarding Jury Agreement

Appellant claims his constitutional rights were violated by a statutory prohibition against informing jurors of the effect of their failure to agree on a punishment phase issue.7 The district court properly held that this claim was procedurally barred. As noted by the district court, the state habeas court rejected Lackey's claim on the ground that he did not object to the jury charge or request a special instruction. Furthermore, Appellant has not argued circumstances permitting our review of his defaulted claim.

VII. Failure to Define Reasonable Doubt

Lackey contends that the state court violated his constitutional rights by refusing to apply retroactively the principles of Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). In Geesa, which was decided after Lackey's trial but before Lackey's conviction became final, the Texas Court of Criminal Appeals announced a new rule requiring a definition of the term "reasonable doubt" in jury instructions in criminal trials. The state court also announced that the new rule would only apply to criminal cases where the trial occurred after Geesa. Appellant argues that Geesa is based on federal law, and therefore, Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), requires that it be given retroactive treatment.

Contrary to Lackey's assertions, the rule announced in Geesa was not required by the federal constitution or law. See Victor v. Nebraska, --- U.S. ----, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (stating that "the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so"); see also Thompson v. Lynaugh, 821 F.2d 1054, 1060-61 (5th Cir.), cert. denied, 483 U.S. 1035, 108 S.Ct. 5, 97 L.Ed.2d 794 (1987) (noting that "attempts by trial courts to define 'reasonable doubt, have been disfavored by this Court"). Thus, the federal retroactive principles discussed in Griffith have no bearing on the state's application of its new rule. See American Trucking Ass'ns Inc. v. Smith, 496 U.S. 167, 177, 110 S.Ct. 2323, 2330, 110 L.Ed.2d 148 (1990).

Alternatively, Appellant argues that the state court's refusal to give retroactive application to Geesa violated his right to equal protection. Because Lackey has not made any attempt to show this Court that the state did not have a rational basis for its refusal to apply the rule of Geesa retroactively, we reject Lackey's claim. See Johnson v. Louisiana, 406 U.S. 356, 363-65, 92 S.Ct. 1620, 1625-26, 32 L.Ed.2d 152 (1972).VIII. Cumulative Effect of Errors

Lackey contends that the cumulative effect of the foregoing alleged errors constituted an independent constitutional violation. Because Lackey has not shown any error, much less constitutional error, we must reject his contention.

IV. Execution After Long Imprisonment

Finally, Appellant notes that he has been on death row since 1983 and argues that executing him after his lengthy incarceration "makes no measurable contribution to accepted goals of punishment." He also argues that the addition of the death penalty to his lengthy incarceration is "grossly out of proportion to his isolated act." We will not address the merits of these arguments for two reasons. First, Appellant raises these arguments for the first time on appeal. See Alexander, 775 F.2d 603. Second, granting Lackey the relief he seeks would require us to create a new rule. See Teague, 489 U.S. at 311, 109 S.Ct. at 1076.


For the foregoing reasons, the district court's denial of Lackey's petition for writ of habeas corpus is AFFIRMED, and the stay of execution issued by the district court is VACATED.



See Lackey v. State, 819 S.W.2d 111 (Tex.Crim.App.1989), for a detailed recitation of the facts


At the time, the Texas capital sentencing statute required the court to sentence the defendant to death if the jury returned affirmative findings on each of the following issues:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately.and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

Tex.Code Crim.Proc.Ann. art. 37.071(b). The first two issues were submitted to the jury at the punishment phase of Lackey's trial.


Lackey bases his Penry claim on evidence proffered at a hearing on federal habeas, as well as evidence proffered at his trial. Our review, however, is limited to evidence presented at trial. See, e.g., Anderson v. Collins, 18 F.3d 1208, 1214-15 (5th Cir.1994)


Lackey attempts to characterize his propensity to overindulge as a permanent handicap by claiming that he is an alcoholic. The evidence does not, however, support his claim. Lackey presented no expert diagnosis that he suffered from alcoholism. To the contrary, Dr. Modlin described Lackey as a "periodic drinker."


Lackey attempts to characterize his poor academic record and low IQ as mental retardation. This characterization is unfounded. Although at age fourteen Lackey tested in the mildly retarded range, Dr. Modlin explained that IQ tests are not reliable until age sixteen. Tests given to Lackey after the age of sixteen indicated below average intelligence, but not retardation


On state habeas and on federal habeas before the district court, Lackey claimed that his trial counsel was ineffective for four reasons: (1) failure to request a competency trial; (2) failure to object to the exclusion for cause of certain prospective jurors; (3) failure to properly cross-examine trial witnesses; and (4) failure to request an instruction on parole during the punishment phase. None of these arguments encompasses Lackey's arguments before this Court


Tex.Code Crim.Proc.Ann. art. 37.071




on petition for writ of certiorari to the court of criminal appeals of texas

No. 94-8262.

Decided March 27, 1995

The petition for a writ of certiorari is denied.

Memorandum of Justice Stevens respecting the denial of certiorari.

Petitioner raises the question whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment's prohibition against cruel and unusual punishment. Though the importance and novelty of the question presented by this certiorari petition are sufficient to warrant review by this Court, those factors also provide a principled basis for postponing consideration of the issue until after it has been addressed by other courts. See, e. g., McCray v. New York, 461 U.S. 961 (1983) (Stevens, J., respecting denial of certiorari).

Though novel, petitioner's claim is not without foundation. In Gregg v. Georgia, 428 U.S. 153 (1976), this Court held that the Eighth Amendment does not prohibit capital punishment. Our decision rested in large part on the grounds that (1) the death penalty was considered permissible by the Framers, see id., at 177 (opinion of Stewart, Powell, and Stevens, JJ.), and (2) the death penalty might serve "two principal social purposes: retribution and deterrence," id., at 183.

It is arguable that neither ground retains any force for prisoners who have spent some 17 years under a sentence of death. Such a delay, if it ever occurred, certainly would have been rare in 1789, and thus the practice of the Framers would not justify a denial of petitioner's claim. Moreover, after such an extendedtime, the acceptable state interest in retribution has arguably been satisfied by the severe punishment already inflicted.

Over a century ago, this Court recognized that "when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it." In re Medley, 134 U.S. 160, 172 (1890). If the Court accurately described the effect of uncertainty in Medley, which involved a period of four weeks, see ibid., that description should apply with even greater force in the case of delays that last for many years. [n.*]

Finally, the additional deterrent effect from an actual execution now, on the one hand, as compared to 17 years on death row followed by the prisoner's continued incarceration for life, on the other, seems minimal. See, e. g., Coleman v. Balkcom, 451 U.S. 949, 952 (1981) (Stevens, J., respecting denial of certiorari) ("the deterrent value of incarceration during that period of uncertainty may wellbe comparable to the consequences of the ultimate step itself"). As Justice White noted, when the death penalty "ceases realistically to further these purposes, . . . its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment." Furman v. Georgia, 408 U.S. 238, 312 (1972) (opinion concurring in judgment); see also Gregg v. Georgia, 428 U. S., at 183 ("[T]he sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering").

Petitioner's argument draws further strength from conclusions by English jurists that "execution after inordinate delay would have infringed the prohibition against cruel and unusual punishments to be found in section 10 of the Bill of Rights 1689." Riley v. Attorney General of Jamaica, [1983] 1 A. C. 719, 734, 3 All E. R. 469, 478 (P. C. 1983) (Lord Scarman, dissenting, joined by Lord Brightman). As we have previously recognized, that section is undoubtedly the precursor of our own Eighth Amendment. See, e.g., Gregg v. Georgia, 428 U. S., at 169-170; Harmelin v. Michigan, 501 U.S. 957, 966 (1991) (Scalia, J., concurring in judgment).

Finally, as petitioner notes, the highest courts in other countries have found arguments such as petitioner's to be persuasive. See Pratt v. Attorney General of Jamaica, [1994] 2 A.C. 1, 4 All E. R. 769 (P. C. 1993) (en banc); id., at 32-33, 4 All E. R., at 785-786 (collecting cases).

Closely related to the basic question presented by the petition is a question concerning the portion of the 17 year delay that should be considered in the analysis. There may well be constitutional significance to the reasons for the various delays that have occurred in petitioner's case. It may be appropriate to distinguish, for example, among delays resulting from (a) a petitioner's abuse of the judicial system by escape or repetitive, frivolous filings; (b) a petitioner's legitimate exercise of his right to review; and (c) negligence or deliberate action by the State. Thus, though English cases indicate that the prisoner should not be held responsible for delays occurring in the latter two categories, see id., at 33, 4 All E. R., at 786, it is at least arguable that some portion of the time that has elapsed since this petitioner was first sentenced to death in 1978 should be excluded from the calculus.

As I have pointed out on past occasions, the Court's denial of certiorari does not constitute a ruling on the merits. See, e. g., Tennessee v. Barber, 513 U. S. __ (1995); Singleton v. Commissioner, 439 U.S. 940, 942 (1978) (Stevens, J., respecting denial of certiorari). Often, a denial of certiorari on a novel issue will permit the state and federal courts to "serve as laboratories in which the issue receives further study before it is addressed by this Court." McCray v. New York, 461 U. S., at 963. Petitioner's claim, with its legal complexity and its potential for far reaching consequences, seems an ideal example of one which would benefit from such further study.

Justice Breyer agrees with Justice Stevens that the issue is an important undecided one.



* See also People v. Anderson, 6 Cal. 3d 628, 649, 493 P. 2d 880, 894 (1972) ("The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out. Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture") (footnote omitted); Furman v. Georgia, 408 U.S. 238, 288-289 (1972) (Brennan, J., concurring) ("[T]he prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death"); Solesbee v. Balkcom, 339 U.S. 9, 14 (1950) (Frankfurter, J., dissenting) ("In the history of murder, the onset of insanity while awaiting execution of a death sentence is not a rare phenomenon"); Suffolk County District Attorney v. Watson, 381 Mass. 648, 673, 411 N. E. 2d 1274, 1287 (1980) (Braucher, J. concurring) (death penalty is unconstitutional under state constitution in part because "[i]t will be carried out only after agonizing months and years of uncertainty"); id., at 675-686, 411 N. E. 2d, at 1289-1295 (Liacos, J., concurring).


52 F.3d 98

Clarence Allen LACKEY, Petitioner-Appellee,
Wayne SCOTT, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellant.

No. 95-50267.

United States Court of Appeals,
Fifth Circuit.

April 26, 1995.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, DUHE and BARKSDALE, Circuit Judges.


The State of Texas appeals and moves to vacate the stay imposed by the district court on the execution of Clarence Lackey, a Texas death row inmate. The district court stayed the execution on the basis that reasonable jurists would disagree on the application of the abuse-of-the-writ doctrine, and the nonretroactivity doctrine, to Lackey's second habeas petition and on the merits of Lackey's claim. Because, as we have previously held,1 the nonretroactivity doctrine bars Lackey's claim, we vacate the stay.


Lackey beat, kidnapped, and murdered Diane Kumph on July 31, 1977. Lackey was arrested, convicted of capital murder, and sentenced to death. Although the Texas Court of Criminal Appeals reversed his conviction, Lackey v. State, 638 S.W.2d 439, 476 (Tex.Crim.App.1982), Lackey was again convicted and sentenced to death. The Court of Criminal Appeals ultimately affirmed his conviction on rehearing. Lackey v. State, 819 S.W.2d 111, 136 (Tex.Crim.App.1989).

In his first federal habeas petition in this court, Lackey argued that executing him after his lengthy incarceration would constitute cruel and unusual punishment under the Eighth Amendment. In particular, Lackey argued that "executing him after his lengthy incarceration 'makes no measurable contribution to accepted goals of punishment' [and that] the addition of the death penalty to his lengthy incarceration is 'grossly out of proportion to his isolated act.' " Lackey v. Scott, 28 F.3d 486, 492 (5th Cir.1994) (quoting Appellant's Opening Brief at 42), cert. denied, --- U.S. ----, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995). We refused to consider his argument for two reasons: "First, Appellant raises these arguments for the first time on appeal. Second, granting Lackey the relief he seeks would require us to create a new rule." Id. (citation omitted).

Lackey's second federal petition also asserts that his execution after his lengthy incarceration on death row would constitute cruel and unusual punishment under the Eighth Amendment. His present claim specifically targets the alleged procedural default of the State as the cause for violation of his Eighth Amendment rights. As the district court put it: "Debatably, that which is truly 'new' ... is the added emphasis on 'who is to blame' for the bulk of the time he has spent on death row." Lackey v. Scott, 885 F.Supp. 958, 967-68 (W.D.Tex.1995). The Court of Criminal Appeals denied this same claim. Ex parte Lackey, Writ No. 24,267-02 (Tex.Crim.App. Mar. 1, 1995), cert. denied, --- U.S. ----, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995). The district court stayed Lackey's execution, which is scheduled for April 28, 1995.


We review a stay imposed under 28 U.S.C. Sec. 2251 for abuse of discretion. Delo v. Stokes, 495 U.S. 320, 322, 110 S.Ct. 1880, 1881-82, 109 L.Ed.2d 325 (1990). A federal court may stay an execution based on a second or successive federal habeas petition only when substantial grounds exist upon which relief may be granted.2 Id. at 321, 110 S.Ct. at 1881.

As we have already decided in this case, Lackey's claim invokes the nonretroactivity doctrine.3 Federal courts are barred from applying new constitutional rules of criminal procedure retroactively on collateral review. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). Teague prohibits application of a new procedural rule to a conviction that was final before the rule's creation. The nonretroactivity doctrine applies equally to a novel application of an old rule. Stringer v. Black, 503 U.S. 222, 227-29, 112 S.Ct. 1130, 1135, 117 L.Ed.2d 367 (1992).

Neither of Teague 's two narrow exceptions apply to Lackey's claim. The first concerns primary, private, individual conduct that is a substantive due process right; the second concerns procedures implicit within ordered liberty that significantly improve factfinding. Teague, 489 U.S. at 311-12, 109 S.Ct. at 1075-76. The new rule that Lackey seeks would neither place certain primary conduct beyond prohibition nor apply to factfinding.

The district court held that reasonable jurists would debate whether Teague applies to this case because Lackey could not have raised this claim on direct review. Nevertheless, Lackey's claim attacks the punishment judgment imposed by the trial court. He claims the State's procedural delay caused the Eighth Amendment violation. The Supreme Court requires nonretroactivity on collateral review because the finality of a state criminal judgment promotes deterrence. Teague, 489 U.S. at 309, 109 S.Ct. at 1074-75. The Court has not carved out any exceptions to Teague other than two narrow ones.

Last time we held that we could not grant Lackey relief because to do so would require us to create a new rule. Lackey v. Scott, 28 F.3d at 492. The district court held that reasonable jurists would debate whether the grounds for relief between the successive petitions are identical for purposes of 28 U.S.C. Sec. 2254 Rule 9(b). We need not address the issue of identical grounds because both claims require the same analysis under Teague. Both claims attack the state court judgment yet arise from postconviction facts. Consequently, Teague 's nonretroactivity doctrine bars Lackey's current claim. We conclude that the district court abused its discretion by staying Lackey's execution.4


Because the nonretroactivity doctrine prevents us and the district court from granting Lackey's petition, we VACATE the stay imposed by the district court.



Lackey v. Scott, 28 F.3d 486 (5th Cir.1994)


The parties and the district court misconstrue our recent decision in James v. Cain, 50 F.3d 1327 (5th Cir.1995). In that case, because we determined that reasonable jurists would not debate James's failure to show cause in his successive petition, we denied his application for a certificate of probable cause (CPC). Id. at 1334-35. Without a CPC there could be no appeal so we denied the stay. In this case, the district court applied the reasonable jurist standard in determining whether to grant a stay. The reasonable jurist standard, however, is the inquiry in determining whether to grant a CPC


Lackey contends that executing him after a lengthy incarceration, allegedly caused by the State's procedural default, would either be considered cruel and unusual by the Framers of the Constitution or violate the common decency standards of modern American society. See Ford v. Wainwright, 477 U.S. 399, 405-06, 106 S.Ct. 2595, 2599-2600, 91 L.Ed.2d 335 (1986)


In other words, assuming without deciding that Lackey's petition is not an abuse of the writ and that it would succeed on the merits, the district court could not enter a stay because the nonretroactivity doctrine bars Lackey's claim



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