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526 U.S. 115

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OCTOBER TERM, 1998

Per Curiam

STEWART, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, ET AL. v. LAGRAND

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

Mter 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 ineffectiveassistance 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.

PER CURIAM.

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 thecralaw


116

Per Curiam

crime in Walter LaGrand's appeal. See State v. LaGrand, 153 Ariz. 21, 23-24,734 P. 2d 563, 565-566 (1987). Following a jury trial, both Karl LaGrand and Walter LaGrand were convicted on all charges and sentenced to death. The Arizona Supreme Court affirmed the convictions and sentences. State v. LaGrand, 152 Ariz. 483, 733 P. 2d 1066 (1987) (Karl LaGrand); State v. LaGrand, supra (Walter LaGrand). Subsequently, we denied the LaGrands' petitions for certiorari. See 484 U. S. 872 (1987).

The LaGrands then filed petitions for writs of habeas corpus pursuant to 28 U. S. C. § 2254. Until then, Walter LaGrand had been represented by Bruce Burke, a Tucson lawyer. Before appointing Burke as counsel in the habeas proceeding, however, the District Court required Burke to discuss all possible claims of ineffective assistance of counsel with Walter LaGrand and to file a status report with the court. See 133 F.3d 1253, 1269 (CA9 1998). Walter LaGrand informed Burke that he did not desire a new attorney and requested that Burke continue to represent him. Ibid. Nevertheless, after Burke learned that Karl LaGrand was pursuing ineffective-assistance-of-counsel claims, Burke moved to withdraw as counsel. The District Court denied this motion on the ground that "Walter LaGrand entered a waiver of any potential claims of ineffective assistance of counsel and Mr. Burke indicated to the Court that he believes no such grounds existed." LaGrand v. Lewis, 883 F. Supp. 451, 456, n. 3 (1995). The Ninth Circuit affirmed, holding that "[w]hen Walter waived the offer of new counsel, he was waiving the benefits of new representation, among which would potentially have been the presentation of this sort of [ineffective-assistance claim]." 133 F. 3d, at 1269.

Among the claims raised in Walter LaGrand's petition for a writ of habeas corpus was the claim that execution by lethal gas constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Thecralaw


117
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