Stewart v. LaGrand, 526 U.S. 115, 5 (1999) (per curiam)

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Cite as: 526 U. S. 115 (1999)

Per Curiam

I

Walter LaGrand, by his actions, has waived his claim that execution by lethal gas is unconstitutional. At the time Walter LaGrand was sentenced to death, lethal gas was the only method of execution available in Arizona, but the State now provides inmates a choice of execution by lethal gas or lethal injection, see Ariz. Rev. Stat. Ann. § 13-704(B) (Supp. 1998) (creating a default rule of execution by lethal injection). Walter LaGrand was afforded this choice and decided to be executed by lethal gas. On March 1, 1999, Governor Hull of Arizona offered Walter LaGrand an opportunity to rescind this decision and select lethal injection as his method of execution. Walter LaGrand, again, insisted that he desired to be executed by lethal gas. By declaring his method of execution, picking lethal gas over the State's default form of execution—lethal injection—Walter LaGrand has waived any objection he might have to it. See, e. g., Johnson v. Zerbst, 304 U. S. 458, 464 (1938). 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 (1989).

II

In addition, Walter LaGrand's claims are procedurally defaulted, and he has failed to show cause to overcome this bar. See Coleman v. Thompson, 501 U. S. 722, 750 (1991). At the time of Walter LaGrand's direct appeal, there was sufficient debate about the constitutionality of lethal gas executions that Walter LaGrand cannot show cause for his failure to raise this claim. Arguments concerning the constitutionality of lethal gas have existed since its introduction as a method of execution in Nevada in 1921. See H. Bedau, The Death Penalty in America 16 (3d ed. 1982). In the period immediately prior to Walter LaGrand's direct appeal, a number of States were reconsidering the use of execution by lethal gas, see Gray v. Lucas, 710 F. 2d 1048, 1059-1061 (CA5

119

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