green
Positive treatment
Quoted verbatim 3×
37.7 score
G Cite
cited 2× by 2 distinct cases, last quoted 1998 ·
…had mckenzie raised the lackey claim any time during , it could have been considered on the merits....
at p. 1465
⚠ not in text
cited 2× by 2 distinct cases, last quoted 1998 ·
…mckenzie could and should have raised his lackey claim at a time when it was capable of being resolved without staying a scheduled execution.
at p. 1468
⚠ not in text
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995
2010
2026
Top citers, strongest first. 45 distinct citers.
How cited ↗
examined
Cited "but see"
Smith v. Mahoney
(4×)
also: Cited as authority (rule)
See, e.g., Allen v. Ornoski, 435 F.3d 946, 948 (9th Cir.2006); LaGrand v. Stewart, 170 F.3d 1158, 1160 (9th Cir.1999); Gerlaugh v. Stewart, 167 F.3d 1222, 1223 (9th Cir. 1999); Ortiz v. Stewart, 149 F.3d 923, 944 (9th Cir.1998); but see McKenzie v. Day, 57 F.3d 1461, 1467 (9th Cir.1995) (declining to stay execution because it was "highly unlikely that McKenzie's Lackey claim would be successful if litigated to its conclusion.").
discussed
Cited "but see"
Smith v. Mahoney
(2×)
also: Cited as authority (rule)
See, e.g., Allen v. Ornoski, 435 F.3d 946, 948 (9th Cir. 2006); LaGrand v. Stew- art, 170 F.3d 1158, 1160 (9th Cir. 1999); Gerlaugh v. Stew- art, 167 F.3d 1222, 1223 (9th Cir. 1999); Ortiz v. Stewart, 149 F.3d 923, 944 (9th Cir. 1998); but see McKenzie v. Day, 57 F.3d 1461, 1467 (9th Cir. 1995) (declining to stay execu- tion because it was “highly unlikely that McKenzie’s Lackey claim would be successful if litigated to its conclusion.”).
examined
Cited "but see"
Smith v. Mahoney
(4×)
also: Cited as authority (rule)
See, e.g., Allen v. Ornoski, 435 F.3d 946, 948 (9th Cir.2006); LaGrand v. Stewart, 170 F.3d 1158, 1160 (9th Cir.1999); Gerlaugh v. Stewart, 167 F.3d 1222, 1223 (9th Cir. 1999); Ortiz v. Stewart, 149 F.3d 923, 944 (9th Cir.1998); but see McKenzie v. Day, 57 F.3d 1461, 1467 (9th Cir.1995) (declining to stay execution because it was "highly unlikely that McKenzie's Lackey claim would be successful if litigated to its conclusion.").
examined
Cited "but see"
Fearance v. Scott
(4×)
also: Cited as authority (rule), Cited as authority (verbatim quote)
t is unclear to us whether, even if it were held that delay in the imposition of the death penalty constitutes cruel and unusual punishment, commutation of the death penalty will turn out to be the appropriate remedy.
examined
Cited as authority (verbatim quote)
98 Cal. Daily Op. Serv. 557, 98 Daily Journal D.A.R. 1135 Jose Jesus Ceja, an Individual v. Terry Stewart, Director of Arizona Department of Corrections Donald Wawrzaszek, Superintendent of Arizona State Prison
(6×)
also: Cited as authority (rule), Cited "see"
mckenzie could and should have raised his lackey claim at a time when it was capable of being resolved without staying a scheduled execution.
examined
Cited as authority (verbatim quote)
Ceja v. Stewart
(6×)
also: Cited as authority (rule), Cited "see"
mckenzie could and should have raised his lackey claim at a time when it was capable of being resolved without staying a scheduled execution.
cited
Cited as authority (rule)
The Associated Press v. Tewalt
Ct. for N. Dist. of Cal., 503 U.S. 653, 653-54 (1992) (per curiam); Cooper v. Rimmer, 379 F.3d 1029 , 1032 n.2 (9th Cir. 2004) (per curiam); McKenzie v. Day, 57 F.3d 1461, 1468 (9th Cir. 1995).
discussed
Cited as authority (rule)
Thomas Creech v. Josh Tewalt
In McKenzie v. Day, 57 F.3d 1461, 1466 (9th Cir. 1995), opinion adopted, 57 F.3d 1493 (9th Cir. 1995) (en banc), for example, we suggested that an Eighth Amendment claim would be cognizable if a state “set up a scheme to prolong the period of incarceration” or “rescheduled [an] execution repeatedly in order to torture” an inmate. 25 be futile and affirm the dismissal of this claim with prejudice.
discussed
Cited as authority (rule)
Joe Smith, Jr. v. David Shinn
(2×)
also: Cited "see, e.g."
See also Allen v. Ornoski, 435 F.3d 946 , 956–57 (9th Cir. 2006); McKenzie v. Day, 57 F.3d 1461, 1463 (9th Cir. 1995).
discussed
Cited as authority (rule)
(DP) Weaver v. Chappell
Allen cannot credibly claim that there is any clearly 22 established law, as determined by the Supreme Court, which would support this . . . claim.”)); 23 see also McKenzie v. Day, 57 F.3d 1461, 1466-67 (9th Cir. 1995) (casting doubt that delays 24 caused by satisfying the Eighth Amendment can violate it); Smith v. Mahoney, 611 F.3d 978 , 25 997-98 (9th Cir. 2010) (citing McKenzie and finding Lackey claim barred by Teague v. Lane, 26 489 U.S. 299 , 316 (1989); Andrews v. Davis, 866 F.3d 994, 1039 (9th Cir. 2017) (same), 27 (rehearing en banc) 944 F.3d 1092 (9th Cir. 2019); People v. Taylor, …
cited
Cited as authority (rule)
Gerald Pizzuto, Jr. v. Josh Tewalt
Ct. for N. Dist. of Cal., 503 U.S. 653 , 653–54 (1992) (per curiam); Cooper v. Rimmer, 379 F.3d 1029 , 1032 & n.2 (9th Cir. 2004) (per curiam); McKenzie v. Day, 57 F.3d 1461, 1468 (9th Cir. 1995).
discussed
Cited as authority (rule)
Ernest Porter v. Pennsylvania Department of Cor
See Chambers v. Bowersox, 157 F.3d 560, 570 (8th Cir. 1998); Stafford v. Ward, 59 F.3d 1025 , 1028 n.5 (10th Cir. 1995); Turner v. Jabe, 58 F.3d 924 , 928–29 (4th Cir. 1995); McKenzie v. Day, 57 F.3d 1461, 1466 (9th Cir. 1995); Fearance v. Scott, 56 F.3d 633, 639 (5th Cir. 1995); Porter v. Singletary, 49 F.3d 1483, 1485 (11th Cir. 1995).
discussed
Cited as authority (rule)
(DP) Catlin v. Davis
In McKenzie v. Day, the Ninth Circuit rejected such a 27 Lackey claim involving a twenty-year delay, stating that “[a] defendant must not be penalized for 28 pursuing his constitutional rights, but he also should not be able to benefit from the ultimately 331 1 unsuccessful pursuit of those rights.” 57 F.3d 1461, 1466 (9th Cir. 1995); see also Jones v. Davis, 806 2 F.3d 538, 553 (9th Cir. 2015) (rejecting, as Teague-barred, a challenge to California’s death penalty on 3 the basis of the lengthy delay between sentencing and execution). 4 The California Supreme Court in People v. Ochoa con…
discussed
Cited as authority (rule)
(DP) Dickey v. Davis
(2×)
(Id., citing McKenzie v. Day, 57 F.3d 1461, 1484-89 (9th 21 Cir. 1995) (Norris, J., dissenting) (noting penological goals of retribution and deterrence are 22 attenuated by the passage of time, and the extraordinary psychological duress and extreme 23 physical and social restrictions on death row); see also Doc.
discussed
Cited as authority (rule)
Ernest Jones v. Ron Davis
(2×)
We and other courts previously have rejected a foundation of Petitioner’s proposed rule — that delay in resolving post-conviction proceedings has constitutional significance: “It would indeed be a mockery of justice if the delay incurred during the prosecution of claims that fail on the merits could itself accrue into a substantive claim to the very relief that had been sought and properly denied in the first place.” McKenzie v. Day, 57 F.3d 1461, 1466 (9th Cir.1995); see, e.g., Chambers v. Bowersox, 157 F.3d 560, 570 (8th Cir.1998) (“We believe that delay in capital cases is too lon…
discussed
Cited as authority (rule)
State v. Davis
(2×)
Sustaining such claims by “placing a substantial premium on speed rather than accuracy” could create a disincentive for “err[ing] on the side of caution.” McKenzie v. Day, 57 F.3d 1461, 1467 (9th Cir.1995).
discussed
Cited as authority (rule)
Emmett v. Johnson
See Workman v. Bredesen, 486 F.3d 896, 910 (6th Cir.) (concluding that the Eighth Amendment does not “require an anesthesiologist to be on hand to monitor the inmate’s consciousness during every execution”), cert. denied, — U.S.-, 127 S.Ct. 2160 , 167 L.Ed.2d 887 (2007); Hamilton v. Jones, 472 F.3d 814, 816 (10th Cir.) (“[T]he Constitution does not require the use of execution procedures that may be medically optimal in other contexts.”), cert. denied, — U.S. -, 127 S.Ct. 1054 , 166 L.Ed.2d 783 (2007); McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir.) (“[W]e are aware of no author…
discussed
Cited as authority (rule)
Michael Taylor v. Larry Crawford etc.
See generally id. at 910, 2007 WL 1311330, *12 (stating that the Constitution does not require the State to hire an anesthesiologist for each execution); McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir.), cert. denied, 514 U.S. 1104 , 115 S.Ct. 1840 , 131 L.Ed.2d 846 (1995) (stating, “we are aware of no authority for the proposition that the prisoner is entitled, for example, to have a lethal injection administered by a physician”).
discussed
Cited as authority (rule)
Taylor v. Crawford
See generally id. at 910, 2007 WL 1311330, *12 (stating that the Constitution does not require the State to hire an anesthesiologist for each execution); McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir.), cert. denied, 514 U.S. 1104 , 115 S.Ct. 1840 , 131 L.Ed.2d 846 (1995) (stating, "we are aware of no authority for the proposition that the prisoner is entitled, for example, to have a lethal injection administered by a physician"). 40 Neither does the record justify requiring the continuous monitoring of the anesthetic depth of the inmate by one trained in anesthesia or by additional equipment.
discussed
Cited as authority (rule)
Emmett v. Johnson
See Workman v. Breedesen, 486 F.3d 896, 910 , 2007 WL 1311330, at *12 (6th Cir.2007) (“[T]he Eighth Amendment [does not] require an anesthesiologist to be on hand to monitor the inmate’s consciousness during every execution.”); Hamilton v. Jones, 472 F.3d 814, 816 (10th Cir.2007) (“[T]he Constitution does not require the use of execution procedures that may be medically optimal in other contexts.”); McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir.1995) (“[W]e are aware of no authority for the proposition that a prisoner is entitled, for example, to have a lethal injection administered…
discussed
Cited as authority (rule)
Hamilton v. Ayers
“A defendant must not be penalized for pursu *1146 ing his constitutional rights, but he also should not be able to benefit from the ultimately unsuccessful pursuit of those rights.” McKenzie v. Day, 57 F.3d 1461, 1466 (9th Cir.1995) (panel opinion).
discussed
Cited as authority (rule)
State v. Murdaugh
(2×)
E.g., McKenzie v. Day, 57 F.3d 1461, 1466-67 (9th Cir.1995) (finding that delay in carrying out executions benefits inmates, allowing them to extend their lives and perhaps obtain commutations, reversals, or exoneration); State v. Schackart, 190 Ariz. 238, 259 , 947 P.2d 315, 336 (1997) (rejecting defendant's claim that prolonged incarceration before execution constitutes cruel and unusual punishment). ¶ 31 Murdaugh presented no authority that the delay in his case, which mostly occurred before sentencing, violates the Eighth Amendment.
cited
Cited as authority (rule)
Oken v. Sizer
Cf. Poland v. Stewart, 117 F.3d 1094, 1105 (9th Cir.1997); McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir.1995).
discussed
Cited as authority (rule)
United States v. 1.377 Acres Of Land, More Or Less, Situated In The City Of San Diego, County Of San Diego, State Of California
McKenzie v. Day, 57 F.3d 1461, 1474 (9th Cir.1995) ("Appellate courts cannot make factual determinations which may be decisive of vital rights where the crucial facts have not been developed." (internal quotations omitted)). 27 ii.
discussed
Cited as authority (rule)
United States v. 1.377 Acres of Land
McKenzie v. Day, 57 F.3d 1461, 1474 (9th Cir.1995) (“Appellate courts cannot make factual determinations which may be decisive of vital rights where the crucial facts have not been developed.” (internal quotations omitted)). ii.
cited
Cited as authority (rule)
Langford v. Day
See Bonin, 77 F.3d at 1163 ; cf. McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir.1995).
cited
Cited as authority (rule)
98 Cal. Daily Op. Serv. 598, 98 Daily Journal D.A.R. 811, 98 Daily Journal D.A.R. 989 Terry Allen Langford v. Rick Day, Acting Administrator of Corrections Division Joseph P. Mazurek, Attorney General of the State of Montana Marc Racicot, Governor
See Bonin, 77 F.3d at 1163 ; cf. McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir.1995). 6 Langford's remaining contentions are similarly without merit.
examined
Cited as authority (rule)
State v. Schackart
(4×)
also: Cited "see"
See Smith, 931 P.2d at 1288 ; McKenzie, 57 F.3d at 1466-67.
examined
Cited as authority (rule)
Larry Wayne White v. Gary L. Johnson, Director, Texas Dept. Of Criminal Justice, Institutional Division
(3×)
also: Cited "see, e.g."
See e.g., Stafford, 59 F.3d at 1028 (10th Cir.); McKenzie, 57 F.3d at 1494; Free v. Peters, 50 F.3d 1362 (7th Cir.) cert. denied, - U.S. -, 115 S.Ct. 1397 , 131 L.Ed.2d 247 (1995); Fearance, 56 F.3d at 639 (5th Cir.) These courts faced claims that were raised in successive petitions for a writ of habéas corpus while White makes his claim in his first federal habeas appeal firom *440 his second conviction.
discussed
Cited as authority (rule)
Daniel Mellinger, Petitioner-Appellant,. v. Richard H. Rison, Warden, United States Penitentiary in Lompoc, California, and State of Hawaii, Daniel Mellinger v. State of Hawaii John Sullivan, Warden, Usp Lompoc
(2×)
also: Cited "see, e.g."
He also provided (from prison) an affidavit that he had lied to Mellinger about the extent to which he had investigated the facts 2 We note that the district court erroneously labelled Petition 2 "successive." "A claim is 'successive' if it was raised in an earlier petition, or if it fails to raise a ground for relief that is new or different than a claim raised in an earlier petition and determined on the merits." McKenzie v. Day, 57 F.3d 1461, 1472 (9th Cir.1995) (Norris, J., dissenting) (citing Campbell, 997 F.2d at 515-16 ); see also Sanders v. United States, 373 U.S. 1, 15 (1963).
cited
Cited as authority (rule)
Jeffers v. Lewis
Court, 503 U.S. 653, 654 , 112 S.Ct. 1652, 1653 , 118 L.Ed.2d 293 (1992); McKenzie v. Day, 57 F.3d 1461, 1464 (9th Cir.1995).
cited
Cited as authority (rule)
95 Cal. Daily Op. Serv. 7405, 95 Daily Journal D.A.R. 12,693 Jimmie Wayne Jeffers v. Samuel A. Lewis, Director, Arizona Department of Corrections and Roger Crist, Warden, Arizona State Prison
Court, 503 U.S. 653, 654 , 112 S.Ct. 1652, 1653 , 118 L.Ed.2d 293 (1992); McKenzie v. Day, 57 F.3d 1461, 1464 (9th Cir.1995).
discussed
Cited as authority (rule)
Duncan Peder McKenzie Jr. v. Rick Day, Director, Department of Corrections and Human Services
(2×)
McKenzie v. Day, 57 F.3d 1461, 1470 (9th Cir.1995).
discussed
Cited as authority (rule)
LARRY WAYNE WHITE v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPT. OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
(2×)
also: Cited "see, e.g."
See Stafford, 59 F.3d at 1028 (10th Cir.)(“We conclude that Appellant has failed to show that executing him after fifteen years on death row, during which time he faced at least seven execution dates, would constitute cruel and unusual punishment”); McKenzie, 57 F.3d at 1494 (9th Cir.) (“We thus decline to recognize Richmond’s lengthy incarceration on death row during the pendency of his appeals as substantively and independently violative of the Constitution”); Free v. Peters, 50 F.3d 1362 (7th Cir.) (rejecting claim that to execute petitioner after almost two decades of pursuing ap…
discussed
Cited "see"
Brown v. State of Nevada
See McKenzie v. Day, 57 F.3d 1461, 1469 (9th 23 Cir. 1995) (evaluating a state prisoner’s habeas petition and explaining that Paskow is “the law of this circuit” on ex post facto claims). 1 to federal law, this court is not encumbered by deference to the Nevada Court of Appeals’ decision 2 on this ground.
discussed
Cited "see"
State v. Moore
(2×)
See McKenzie v. Day, supra. Indeed, most of these procedural safeguards have been imposed by the U.S. Supreme Court in recognition of the fact that the common-law practice of imposing swift and certain executions could result in arbitrariness and error in carrying out the death penalty.
discussed
Cited "see"
Gerlaugh v. Stewart
See McKenzie v. Day, 57 F.3d 1461, 1464, n. 6 (9th Cir.)(noting that petitioner could have raised his Lackey claim by moving to amend his petition prior to his petition finally being resolved by the district court) aff'd en banc, 57 F.3d 1493 (9th Cir.1995).
cited
Cited "see"
Belyeu v. Johnson
See McKenzie v. Day, 57 F.3d 1461 , n. 20 at 1470 (9th Cir.1995).
cited
Cited "see"
Roger Dale Stafford, Sr. v. Ron Ward, Warden, Oklahoma State Penitentiary at McAlester Oklahoma Drew Edmondson, Attorney General of Oklahoma
See McKenzie, 57 F.3d at 1464; Fearance v. Scott, 56 F.3d 633, 635-37 (5th Cir.1995), cert. denied, — U.S. —, 115 S.Ct. 2603 , 132 L.Ed.2d 847 (1995).
discussed
Cited "see"
Willie Lloyd Turner v. John Jabe, Warden
(2×)
See McKenzie v. Day, 57 F.3d 1461 (9th Cir.1995) (observing that "[w]hile Justice Stevens' memorandum in Lackey has given prominence to the argument that delay in carrying out a death sentence constitutes cruel and unusual punishment, the legal theory underlying the claim is not new"), opinion adopted, 57 F.3d 1493 , (9th Cir.1995) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1840 , 131 L.Ed.2d 846 (1995). 5 2.
cited
Cited "see, e.g."
Creech v. Tewalt
Coal., 938 F.3d at 1080 , to conclude claim is possible); see also Creech II, 84 F.4th at 792 n.6 (citing McKenzie, 57 F.3d at 1461 ).
discussed
Cited "see, e.g."
People v. Seumanu
(See Glossip v. Gross, supra, 576 U.S. at p._[ 135 S.Ct. at p. 2769 ] (dis. opn. of Breyer, J., joined by Ginsburg, J.) [“lengthy delays both aggravate the cruelty of the death penalty and undermine its jurisprudential rationale”].) Lackey claims are usually denied in the lower federal courts, sometimes on the merits (see, e.g., Smith v. Mahoney (9th Cir. 2010) 611 F.3d 978, 998 ; Thompson v. Secretary for Dept. of Corrections (11th Cir. 2008) 517 F.3d 1279, 1284 ), and sometimes on procedural grounds (e.g., Ibarra v. Thaler (5th Cir. 2012) 687 F.3d 222 , 224-225 & fn. 1), although not all…
discussed
Cited "see, e.g."
Pa Prison Society v. Cortes
We disagree with the District Court’s conclusion that the retrospective application of the 1997 Amendment to the Governor’s clemency power “creates more than a speculative and attenuated risk of increasing the measure of punishment applied to life sentenced inmates.” Pa. Prison Soc’y v. Rendell, 419 F.Supp.2d at 661 (emphasis added). 3 Finally, the Board of Pardons argues that “the [District C]ourt should have determined that, on its face, that [the Second Amended Complaint] presented no viable *247 ex post facto claim arising from the 1997 constitutional amendment changing the vot…
discussed
Cited "see, e.g."
Reid v. Johnson
However, as previously noted “[t]he risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.” See Campbell, 18 F.3d 662, 687 (9th Cir.1994); see also, McKenzie v. Day 57 F.3d 1461, 1469 (9th Cir.1995) (”[W]e are aware of no authority for the proposition that a prisoner is entitled, for example, to have a lethal injection administered by a physician).
discussed
Cited "see, e.g."
Langford v. State
(2×)
See, e.g., McKenzie v. Day (9th Cir. 1995), 57 F.3d 1461, 1469 .
Retrieving the full opinion text from the archive…
In Re JEFFERSON LINES, INC., Debtor. STATE OF OKLAHOMA Ex Rel. OKLAHOMA TAX COMMISSION, Appellant,
v.
JEFFERSON LINES, INC., Appellee
v.
JEFFERSON LINES, INC., Appellee
93-1684.
Court of Appeals for the Eighth Circuit.
Jun 23, 1995.
Stanley P. Johnston, Oklahoma City, OK (J.I.M. Caldwell and Craig S. Key, on the brief), for appellant., Loren A. Unterseher, Minneapolis, MN (Steven D. DeRuyter, on the brief), for ap-pellee.
Arnold, Beam, Jackson.
Published
RICHARD S. ARNOLD, Chief Judge.
This is a bankruptcy case in which Jefferson Lines, Inc., is the debtor. The Oklahoma Tax Commission seeks payment for unpaid sales taxes on the gross price of interstate bus tickets sold in Oklahoma. The applicable state statute, Okla. Stat. Title 68, § 1354(1)(C), requires Jefferson to collect a sales tax on the gross price of every bus ticket sold in Oklahoma, including tickets for transportation service performed out of state. In an opinion filed last year, we held that the sales tax, as applied to the present situation, was in violation of the Commerce Clause of the United States Constitution, Article I, § 8, cl. 3, and we therefore affirmed a judgment of the District Court disallowing the claim of the Oklahoma Tax Commission. 15 F.3d 90 (8th Cir.1994).
The Supreme Court granted certiorari and has now reversed our judgment. Oklahoma Tax Comm’n v. Jefferson Lines, Inc., — U.S. -, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995). That Court’s judgment, filed with us on May 26, 1995, reverses the judgment of our Court and remands the case to us “for further proceedings in conformity with the opinion of’ the Supreme Court.
Accordingly, we now reverse the judgment of the District Court and remand the case to that Court for further proceedings in conformity with the opinion of the Supreme Court of the United States.
It is so ordered.