James P. Free, Jr. v. Howard A. Peters, III and Neil F. Hartigan

50 F.3d 1362

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 29, 1995
• Docket: 95-1692
• Status: Published

Opinions

PER CURIAM.

Petitioner James P. Free, Jr. is scheduled to be executed by the State of Illinois on March 22, 1995. He filed a motion under Fed.R.Civ.P. 60(b) in the district court and sought a stay of the execution pending the U.S. Supreme Court’s decision whether to grant a writ of certiorari in Lackey v. Texas, — U.S. -, 115 S.Ct. 1274, 131 L.Ed.2d 192 (1995) which raises the issue of

[w]hether the execution of a death sentence constitutes cruel and unusual punishment under the Eighth Amendment as understood by the Framers if, as a result of inordinate delay not attributable to his own conduct, the condemned inmate is forced to endure nearly two decades on death row, during which time his execution is repeatedly rescheduled. Cert. Pet. at ii.

Dist. Ct. order of March 20, 1995.

The district court found the Lackey case was “clearly and materially distinguishable, and thus can provide no relief to Free.” We agree. In Lackey the majority of the time that the defendant spent on death row was a result of very protracted proceedings in his mandatory direct appeals to the state supreme court. His discretionary state and federal actions accounted for relatively few years.

Free’s mandatory direct appeal, on the other hand, was disposed of in about three and one half years in 1983. The remaining years since then have resulted from Free’s pursuit of his discretionary appeals in both state and federal court. We agree with the district court that any inordinate delay in the execution of Free’s sentence is directly attributable to his own conduct. The circumstances of this case are clearly distinguishable from Lackey. The judgment of the district court is AFFIRMED. Petitioner’s Emergency Motion for a Stay of Execution is Denied. The mandate shall issue immediately.