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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-50501
CLARENCE ALLEN LACKEY,
Appellant-Petitioner,
VERSUS
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Appellee-Respondent.
Appeal from the United States District Court
For the Western District of Texas

May 3, 1996
Before JOLLY, DUHÉ and BARKSDALE, Circuit Judges.
PER CURIAM:
Clarence Lackey, a Texas death row inmate, appeals the
district court's denial of his petition for writ of habeas corpus.
Because, as we have previously held, the nonretroactivity doctrine
bars Lackey's claim, and because inordinate delay in carrying out
an execution does not violate a prisoner's Eighth Amendment rights,
we deny relief.

BACKGROUND1
In his first federal habeas petition, 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), 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 asserted that his
execution after his lengthy incarceration on death row would
constitute cruel and unusual punishment under the Eighth Amendment.
Lackey v. Scott, 52 F.3d 98 (5th Cir. 1995). His present claim
specifically targets the alleged procedural default of the State as
the cause for violation of his Eighth Amendment rights. The
district court stayed Lackey's execution, concluding 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. Lackey
1 For a discussion of the underlying facts, see our prior
opinions in Lackey v. Scott, 28 F.3d 486, 492 (5th Cir. 1994),
cert. denied, 115 S.Ct. 743 (1995), and 52 F.3d 98 (5th Cir.),
cert. dismissed, 115 S.Ct. 1818 (1995).
2

v. Scott, 885 F. Supp. 958, 967-68 (W.D. Tex. 1995).
We then vacated the district court's stay of execution and
held that an identical claim was barred by the nonretroactivity
doctrine of Teague v. Lane, 489 U.S. 288, 310 (1989). In
addressing the abuse-of-the-writ argument, we stated:
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.

52 F.3d at 100. Thus, this panel never evaluated the merits of the
abuse-of-the-writ argument, and instead held that Teague's
nonretroactivity doctrine barred Lackey's Eighth Amendment claim.
Lackey then sought a stay from the Supreme Court. The Supreme
Court issued a per curiam order granting a stay of execution
"pending the district court's consideration of petitioner's
petition for writ of habeas corpus." Lackey v. Scott, 115 S. Ct.
1818 (1995). Before the district court considered the petition,
this Court decided Fearance v. Scott, 56 F.3d 633 (5th Cir.), cert.
denied, 115 S. Ct. 2603 (1995), which held that the legal theory
underlying a "Lackey" claim is not novel and thus does not meet the
novelty exception to the abuse-of-the-writ doctrine. Relying on
Fearance, the district court dismissed Lackey's claim as an abuse
of the writ. Lackey now appeals.
DISCUSSION
We need not determine whether Lackey's Eighth Amendment claim
properly falls under the abuse-of-the-writ doctrine. Even if
3

Lackey's claim is not procedurally barred, as Lackey now concedes,2
a recent decision of the Fifth Circuit, White v. Johnson, 1996
WESTLAW 125022 (5th Cir. March 21, 1996), now controls the outcome
of Lackey's habeas petition. In White, this Court held that "Our
decision in Lackey remains the law of this circuit until reversed,
vacated or remanded. . . . Accordingly, we are bound to hold that
Teague precludes relief on White's eighth amendment claim." Id. at
*5. In addition, if Teague does not apply, Lackey's claim also
fails on the merits, because White holds that inordinate delay in
carrying out an execution does not violate the prisoner's Eighth
Amendment rights. Id. at *8.
CONCLUSION
For the foregoing reasons, the district court's denial of
Lackey's petition for writ of habeas corpus is AFFIRMED.
Motion for Expedited Appeal DISMISSED as moot.
2 See Motion for Expedited Appeal filed March 29, 1996.
4