Darick Leonard Gerlaugh v. Terry L. Stewart, Director, Arizona Dept. Of Corrections

167 F.3d 1222, 99 Daily Journal DAR 1363, 99 Cal. Daily Op. Serv. 1129, 1999 U.S. App. LEXIS 1827, 1999 WL 65008

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 2, 1999
• Docket: 99-99003
• Status: Published

Opinions

Order; Partial Concurrence and Partial Dissent by Judge REINHARDT.

Darick Leonard Gerlaugh, an Arizona capital petitioner whose execution is scheduled for today, February 3,1999, at 2 p.m. P.S.T., appeals after the district court dismissed his Lackey¹ claim for lack of jurisdiction and denied a certificate of appealability.

A. Certificate of Appealability

An appeal may not be taken unless the applicant has made a substantial showing of the denial of a constitutional right and a certificate of appealability is granted. See 28 U.S.C. § 2253(c)(1),(2) (West 1998). Observing that the law in this circuit is settled, the district court denied a certificate of appealability. We agree.

In this circuit, it is settled that a Lackey claim does not fall within any exception to the Antiterrorism and Effective Death Penalty Act’s (AEDPA’s) rule that claims raised, after the denial of a first 28 U.S.C. § 2254 petition has become final, must first be authorized by the court of appeals. See Ceja v. Stewart, 134 F.3d 1368, 1369 (9th Cir.1998). Gerlaugh argues that a Lackey claim, like the claim that petitioner was not competent for execution in Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 1621, 140 (1998), does not require prior authorization by the court of appeals because it does not become ripe until an execution is imminent and therefore is not a subsequent claim. This court already has rejected that argument. See Ceja, 134 F.3d at 1371-72 (B.Fletcher, J., dissenting). Accordingly, we deny Gerlaugh’s application for a certificate of appealability. .

B. Subsequent Habeas Petition

Even were we to consider Gerlaugh’s appeal as a motion for leave to file a subsequent habeas petition, we would deny leave because in this circuit a Lackey claim, not raised in a first section 2254 petition, does not fall within either exception to the AED-PA’s bar against subsequent claims. See Ortiz v. Stewart, 149 F.3d 923, 944 (9th Cir.1998); see also 28 U.S.C. § 2244(b)(2)(A),(B).

C. Motion for Stay of Execution

Because, in our view, Gerlaugh has failed to show “substantial grounds upon which relief might be granted,” our judgment is that his stay of execution is to be denied. See Barefoot v. Estelle, 463 U.S. 880, 895,103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). However, because Gerlaugh is entitled to seek a stay of execution from the Supreme Court, we stay the order of his execution until 6:00 p.m. P.S.T. today, February 3,1999.

CERTIFICATE OF APPEALABILITY DENIED; DISTRICT COURT’S JUDGMENT AFFIRMED; LEAVE TO FILE SUBSEQUENT PETITION DENIED; MOTION FOR STAY OF EXECUTION GRANTED ONLY UNTIL 6:00 p.m. P.S.T. FEBRUARY 3,1999.

1 . See Lackey v. Texas, 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (Stevens, J., re denial of certiorari).