Duncan Peder McKenzie Jr. v. Rick Day, Director, Department of Corrections and Human Services

57 F.3d 1493, 95 Cal. Daily Op. Serv. 3621, 1995 U.S. App. LEXIS 10893, 1995 WL 293953

Opinions

ORDER

McKenzie, a prisoner awaiting execution in the State of Montana, appeals from the district court’s denial of his petition for writ of habeas corpus. A panel of this court denied McKenzie’s motion for stay of execution. McKenzie v. Day, 57 F.3d 1461, 1470 (9th Cir.1995). We have taken this ease en banc and now adopt the panel’s order as our own and deny the stay for the reasons stated therein.

As an alternative ground for denying the stay, we conclude that McKenzie is not entitled to relief under any of the theories he has advanced.

McKenzie contends that his execution would constitute cruel and unusual punish ment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. He argues that to execute him after the great delay that has occurred between his conviction and date of execution (20 years), combined with the repeated resetting of his execution date (8 times), and the allegedly unconstitutional conditions of his confinement, amount to cruel and unusual punishment.

In Richmond v. Lewis, 948 F.2d 1473 (9th Cir.1990), rev’d on other grounds, — U.S. -, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992), vacated, 986 F.2d 1583 (9th Cir.1993), we rejected a very similar argument. We reasoned that:

A defendant must not be penalized for pursuing his constitutional rights, but he also should not be able to benefit from the ultimately unsuccessful pursuit of those rights. It would indeed be a mockery of justice if the delay incurred during the prosecution of claims that fail on the merits could itself accrue into a substantive claim to the very relief that had been sought and properly denied in the first place. If that were the law, death-row inmates would be able to avoid their sentences simply by delaying proceedings beyond some threshold amount of time, while other deathrow inmates — less successful in their attempts to delay — would be forced to face their sentences. Such differential treatment would be far more “arbitrary and unfair” and “cruel and unusual” than the current system of fulfilling sentences when the last in the line of appeals fails on the merits. We thus decline to recognize Richmond’s lengthy incarceration on death row during the pendency of his appeals as substantively and independently violative of the Constitution.

Id. at 1491-92. Although the opinion was subsequently vacated, Richmond remains persuasive authority, and we adopt its analysis of this issue as our own.

We have examined each of McKenzie’s remaining arguments, and conclude that they are without merit.

STAY DENIED.