OCTOBER TERM, 1998
on application to lift restraining order and petition for writ of certiorari to the united states court of appeals for the ninth circuit
No. A-735 (98-1412). Decided March 3, 1999
After Walter LaGrand's conviction and sentence were affirmed by the Arizona Supreme Court and his first federal habeas petition was denied, he filed this petition, challenging, inter alia, lethal gas as a cruel and unusual form of execution. The District Court denied the petition and a certificate of appealability. The Ninth Circuit granted the certificate and denied the stay of execution, but enjoined the State from executing LaGrand by lethal gas.
Held: The Ninth Circuit's judgment is reversed and its injunctive order vacated. LaGrand waived his claim that execution by lethal gas is unconstitutional by choosing lethal gas over lethal injection, an alternative method of execution available in Arizona. To hold otherwise, and to hold that Eighth Amendment protections cannot be waived in the capital context, would create and apply a new procedural rule in violation of Teague v. Lane, 489 U. S. 288. In addition, LaGrand's claims are procedurally defaulted, and he has failed to show cause for his failure to overcome this bar. At the time of his direct appeal, there was sufficient debate about the constitutionality of lethal gas executions that he cannot show cause for his failure to raise this claim. He also specifically waived an alternative claim that his trial counsel was ineffective by representing to the District Court prior to filing his first federal habeas petition that there was no basis for such a claim. That claim is also procedurally defaulted. The Arizona court held that his ineffective-assistance arguments were barred pursuant to a state procedural rule, and he has not demonstrated cause or prejudice for his failure to raise the claims on direct review.
Certiorari granted; judgment reversed and injunction vacated.
Walter LaGrand and Karl LaGrand were each convicted of first-degree murder, attempted murder in the first degree, attempted armed robbery, and two counts of kidnaping. The Arizona Supreme Court gave a detailed account of the
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