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).

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).

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.

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.

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.

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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

CONCLUSION

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

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