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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 95-50267
_____________________________________
CLARENCE LACKEY,
Petitioner-Appellee,
VERSUS
WAYNE SCOTT,
Respondent-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________________________________
(April 26, 1995)
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:
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.
1 Lackey v. Scott, 28 F.3d 486 (5th Cir. 1994).

BACKGROUND
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, 115 S. Ct. 743
(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
2

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, MO-95-CA-68-F, slip op. at 17 (W.D. Tex. Apr. 21, 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, 63 U.S.L.W. 3705 (Mar. 27, 1995). The district court
stayed Lackey's execution, which is scheduled for April 28, 1995.
DISCUSSION
We review a stay imposed under 28 U.S.C. § 2251 for abuse of
discretion. Delo v. Stokes, 495 U.S. 320, 322 (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.
As we have already decided in this case, Lackey's claim
invokes the nonretroactivity doctrine.3 Federal courts are barred
2 The parties and the district court misconstrue our recent
decision in James v. Cain, No. 95-30354, 1995 U.S. App. LEXIS 8825
(5th Cir. Apr. 17, 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 *22-*23. 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.
3 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
3

from applying new constitutional rules of criminal procedure
retroactively on collateral review. Teague v. Lane, 489 U.S. 288,
310 (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, 112 S. Ct. 1130, 1135 (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. 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. 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.
(1986).
4

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. § 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.
4 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.
5