Stewart v. LaGrand, 526 U.S. 115, 4 (1999) (per curiam)

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118

STEWART v. LaGRAND

Per Curiam

tions may not be waived, at least in the area of capital punishment." See LaGrand v. Stewart, 173 F. 3d 1144, 1148 (1999). As part of its ultimate order, the Court of Appeals stayed Karl LaGrand's execution and enjoined Arizona "from executing Karl Hinze LaGrand, or anyone similarly situated, by means of lethal gas." Id., at 1149. The State filed an application to vacate the stay, which we granted. Subsequently, Karl LaGrand's lawyers moved to clarify our order to determine whether the Ninth Circuit's injunction was still in place. We denied this motion. 525 U. S. 1174 (1999). At the last moment, Karl LaGrand requested the use of lethal injection, which the State allowed, and the validity of the Ninth Circuit's injunction was not tested.

This case followed. Like Karl LaGrand, Walter LaGrand filed a petition for writ of habeas corpus challenging lethal gas as a cruel and unusual form of execution. The District Court declined to follow the Ninth Circuit's previous opinion in LaGrand v. Stewart, No. 99-99004 (Feb. 23, 1999), concluding that our lifting of the stay of execution necessarily vacated the merits of the Ninth Circuit's decision. The District Court also denied a certificate of appealability, concluding that "the issue of procedural default of Petitioner's lethal gas challenge is not debatable among jurists of reason." Pet. for Cert. 5.

The Ninth Circuit panel granted a certificate of appealability and proceeded to the merits of the case. It concluded that our order lifting the stay of execution in LaGrand v. Stewart, No. 99-99004 (Feb. 23, 1999), did not pass upon the merits of the panel's opinion and concluded that its reasoning remained sound. It then denied the stay of execution but restrained and enjoined the State of Arizona from executing Walter LaGrand by means of lethal gas.

The State has filed a petition for writ of certiorari and an application to lift the Court of Appeals' injunction. We now grant the petition for certiorari, summarily reverse the judgment, and vacate the Court of Appeals' injunctive order.

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