Cite as: 526 U. S. 115 (1999)
Per Curiam
District Court found the claim to be procedurally defaulted because Walter LaGrand had failed to raise it either on direct appeal or in his petition for state postconviction relief, when the sole method of execution was by way of lethal gas. On appeal, the Ninth Circuit did not reach the issue of procedural default because it found the claim was not ripe until and unless LaGrand chose gas as his method of execution. Id., at 1264. The petition for writ of habeas corpus was denied. Id., at 1269.
In February 1999, Karl LaGrand filed a successive state petition for postconviction relief raising the claim that execution by lethal gas constituted cruel and unusual punishment. The trial court found the claim moot and precluded due to Karl LaGrand's failure to raise the claim in prior state court proceedings, and the Arizona Supreme Court denied review. Karl LaGrand again raised the claim in a second federal habeas corpus petition. The District Court again found the claim procedurally defaulted and concluded that Karl LaGrand had failed to establish cause and prejudice or a fundamental miscarriage of justice to excuse the default. The District Court denied that petition, but the Court of Appeals reversed.
The Ninth Circuit held that Karl LaGrand's lethal gas claim was procedurally barred but found cause and preju-dice to excuse the default. The court concluded that Karl LaGrand's failure to raise the lethal gas claim was excused because there was no legal or factual basis for the claim when he pursued his direct appeal in state court. Preju-dice was shown because he was now faced with execution by a method the Ninth Circuit had previously found to be unconstitutional.
The Ninth Circuit also addressed the State's argument that Karl LaGrand's choice of execution method constituted a waiver of his current claim. According to the Ninth Circuit, its precedent dictated that "Eighth Amendment protec-
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