JOE CLARENCE SMITH, Jr. v. DAVID SHINN, Director, in official capacity only;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE CLARENCE SMITH, Jr.,
Plaintiff-Appellant,
v.
DAVID SHINN, Director, in official
capacity only; et al.,
Defendants-Appellees.
No. 20-17404
D.C. No.
2:20-cv-02012-ROS-JFM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Submitted November 16, 2021**
Pasadena, California
Before: PAEZ, CLIFTON, and OWENS, Circuit Judges.
Plaintiff Joe Smith, Jr. filed a civil rights complaint under 42 U.S.C. § 1983
alleging that his tenure of over forty-four years on Arizona’s death row, much of it
in solitary confinement, violates the Eighth and Fourteenth Amendments. He
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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sought declaratory and injunctive relief prohibiting Arizona officials from
imposing his execution at any point in the future. A challenge to the imposition of
the death penalty due to a plaintiff’s extended stay on death row is known as a
Lackey claim, derived from Justice Stevens’ concurrence in the Supreme Court’s
denial of certiorari in Lackey v. Texas, 514 U.S. 1045 (1995). 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). The district court dismissed Smith’s complaint for failure to
state a claim with prejudice. Smith timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
court’s dismissal of Smith’s complaint under 28 U.S.C. § 1915A for failure to state
a claim. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm the district
court’s dismissal of Smith’s complaint.
We hold that the district court did not err in dismissing Smith’s complaint
based on its determination that Smith’s Lackey claim was not cognizable under
§ 1983. “The Supreme Court has recognized that ‘[f]ederal law opens two main
avenues to relief on complaints related to imprisonment: a petition for habeas
corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871 . . .
42 U.S.C. § 1983.’” Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en
banc) (quoting Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam)).
“Challenges to the validity of any confinement or to particulars affecting its

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duration are the province of habeas corpus; requests for relief turning on
circumstances of confinement may be presented in a § 1983 action.” Id. The
Supreme Court has “long held that habeas is the exclusive vehicle for claims
brought by state prisoners that fall within the core of habeas, and such claims may
not be brought in a § 1983 action.” Id. (citing Wilkinson v. Dotson, 544 U.S. 74,
81–82 (2005)).
Smith concedes that neither our court nor any court has recognized a Lackey
claim under § 1983. That said, the dispositive inquiry here is whether Smith’s
Lackey claim is in “the province of habeas corpus.” Id. It is. We have repeatedly
considered Lackey claims brought on habeas. See e.g., Smith v. Mahoney, 611 F.3d
978, 998–99 (9th Cir. 2010) (considering Lackey claim raised on habeas and
denying the petition because, pursuant to Teague v. Lane, 489 U.S. 288, 316
(1989), courts may not announce new constitutional rules on habeas review);
Allen, 435 F.3d at 957–58 (holding that the petitioner’s Lackey claim was barred
by the Antiterrorism and Effective Death Penalty Act because it was raised for the
first time in a second habeas petition even though the petitioner “could have
brought his Lackey claim in his first habeas petition.”); LaGrand v. Stewart, 170
F.3d 1158, 1160 (9th Cir. 1999) (same); Gerlaugh v. Stewart, 167 F.3d 1222, 1223
(9th Cir. 1999) (order) (same); Ortiz v. Stewart, 149 F.3d 923, 944 (9th Cir. 1998)
(same), overruled on other grounds as recognized by Apelt v. Ryan, 878 F.3d 800,

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827–28 (9th Cir. 2017); see also McKenzie, 57 F.3d at 1470 (denying an
emergency stay motion and casting doubt on the petitioner’s habeas claim that “the
inordinate delay in carrying out the sentence of death, regardless of any other
factor, conclusively establishe[d] that [the petitioner] has suffered cruel and
unusual punishment”).
These cases establish that a Lackey claim, like Smith’s, is in “the province of
habeas corpus” and therefore, the district court did not err in determining that
Smith’s complaint failed to state a claim because his Lackey claim was not
cognizable and “may not be brought in a § 1983 action.” Nettles, 830 F.3d at 927.1
AFFIRMED.
1 Smith’s argument that his complaint states a challenge to the method of his
execution as opposed to the validity of his death sentence, is a distinction without a
difference considering the relief Smith seeks. Smith’s complaint requests a
declaration and permanent injunction against Defendants from ever imposing his
execution.

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