Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653 (1992) (per curiam)

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OCTOBER TERM, 1991

Per Curiam

GOMEZ et al. v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA et al.

on application to vacate stay

No. A-767. Decided April 21, 1992

The Court of Appeals granted Robert Alton Harris a stay of execution pending a review of his 42 U. S. C. 1983 claim that his execution by lethal gas would be cruel and unusual in violation of the Eighth Amendment.

Held: The application to vacate the stay of execution is granted. Harris' action is an obvious attempt to avoid the application of McCleskey v. Zant, 499 U. S. 467, to bar this successive claim for relief. He has made no convincing showing of cause for his failure to raise this claim in his four prior federal habeas petitions. Even assuming that he could avoid the application of McCleskey, his claim should not be considered on the merits. Since he is seeking an equitable remedy, the State's strong interest in proceeding with its judgment and Harris' obvious attempt at manipulation must be taken into consideration. This claim could have been raised more than a decade ago, and there is no reason for this abusive delay, which has been compounded by the last-minute attempts to manipulate the judicial process.

Application granted.

Per Curiam.

Robert Alton Harris brought a 42 U. S. C. 1983 action claiming that execution by lethal gas is cruel and unusual in violation of the Eighth Amendment. This action is an obvious attempt to avoid the application of McCleskey v. Zant, 499 U. S. 467 (1991), to bar this successive claim for relief. Harris has now filed four prior federal habeas petitions. He has made no convincing showing of cause for his failure to raise this claim in his prior petitions.

Even if we were to assume, however, that Harris could avoid the application of McCleskey to bar his claim, we would not consider it on the merits. Whether his claim is

653

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