Clarence Allen Lackey
Executed: May 20, 1997
Convicted in the abduction and
slashing death of Diane Kumph, 20, in Lubbock. Kumph was raped
and beaten and had her throat slashed by Lackey, who also
burglarized her apartment. After the Texas Court of Criminal
Appeals reversed his conviction, he was tried and convicted a
second time in 1983.
Lackey executed for
By Graham Underwood -
May 5, 1997
HUNTSVILLE - Clarence Allen
Lackey died by lethal injection Tuesday for the abduction, rape
and slaying of Toni Diane Kumpf almost 20 years ago.
''I would like to thank my
Lord Jesus Christ for keeping me strong all these years,'' the
42-year-old former Lubbock construction worker said in a deep,
growl-like voice as he lay on his back on the execution table. A
tattered black Bible, its spine held together by white masking
tape, lay on his chest.
''I would also like to thank
my mother for standing by me all these years.'' Lackey also
thanked several friends before telling Warden Morris Jones, ''I'm
The three drugs used in the
execution had begun flowing into both of Lackey's arms by 6:07
''I love you, Mom,'' Lackey
said shortly before he softly grunted. Neither Lackey's mother,
Ann, nor any other relative was present for the execution. Six
minutes after the drugs began flowing, a small hand-size door
opened to Lackey's left and a white, canister-shaped object was
placed on the ledge, a signal to Jones that a lethal dosage of
potassium chloride and sodium thiopental had been completed.
Lackey, dressed in a blue
uniform issued to inmates at the time of their release, lay with
his eyes open. He was pronounced dead at 6:17 p.m., and a
physician closed Lackey's eyes.
''Praise God! Jesus!'' husband
and wife ministers Jack and Irene Wilcox exclaimed in whispers.
The couple were the only witnesses Lackey requested to be
''I heard he thanked Jesus,''
said Jim Kumpf, whose 23-year-old daughter was killed by Lackey
in July 1977. ''That pleased me very much. It really did. At
least he had religion.''
None of Miss Kumpf's survivors
attended the execution. Her sister, Julie, asked to send Lackey
a letter earlier in the day. The request was denied, said David
Nunnelee, a spokesman for the Texas Department of Criminal
''We decided not to at this
stage in the game,'' Nunnelee said. ''It's been 20 years.''
Lackey was visited at 8:30 a.m.
by his mother and an uncle. On Monday, he also received a
45-minute visit from Sister Helen Prejean, the anti-death
penalty activist portrayed in the movie ''Dead Man Walking.''
Records at the TDCJ Ellis
Unit, where Lackey was held before being taken to the death
chamber about 15 miles away, show he passed the day of his death
calmly and spent much of the time lying on his bunk and fanning
''He's been ready to go for a
long time,'' Nunnelee said. ''Last year, when he got his stay,
there's no doubt he was relieved. But what I hear from Ellis,
he's ready to go.''
At about 3:30 p.m., Lackey
received his last meal: t-bone steak, a large salad, french
fries and chocolate ice cream. His request for a pack of Camel
cigarettes was denied because of prison tobacco policy.
Lackey's execution, the second
this week and the 13th this year in Texas, drew about 10
protesters. They gathered behind banners at a corner outside the
prison and were kept by guards behind a strand of yellow tape.
''Gray shirts, you can't hide,''
some chanted, referring to the corrections officers' uniforms.
''We charge you with homicide!''
Before the execution, Nunnelee
said the demonstrations have been diminishing.
''Even in the last weeks,
they've shrunken,'' he said. ''We've been called murderers, and
Huntsville has been likened to Auschwitz and Buchenwald by
loudspeaker. The past few have been pretty quiet.''
Lackey was arrested on his
23rd birthday in an Amarillo motel for the slaying of Miss Kumpf,
a Tech Health Sciences Center secretary who was dragged out of
her Avenue W apartment. Lackey had been released five months
earlier from a state prison where he had been serving time for a
1974 burglary with intent to commit rape.
Lackey also had been
questioned for another rape a few weeks before Kumpf was killed.
The victim in that assault did not press charges.
Detective Randy Ward, who
drove Lackey back from Amarillo, said in an earlier interview
that Lackey admitted killing Kumpf, a stranger. The officer said
Lackey apparently became angry because Kumpf hit him as she was
being raped. The statement was not evidence in Lackey's trials.
Lackey is the first Lubbock
inmate to be executed in more than 40 years and the first to die
by lethal injection. The county's last execution was Walter
Whitaker Jr., 23, who died in September 1954 in Huntsville's
Lackey is the state's 120th
execution since Texas resumed capital punishment in the early
28 F.3d 486
Clarence LACKEY, Petitioner-Appellant,
Wayne SCOTT, Director, Director, Texas Department of
Criminal Justice Institutional Division,
United States Court of Appeals,
Aug. 2, 1994.
Rehearing and Suggestion for Rehearing En Banc Denied Aug. 30,
Appeal from the United
States District Court for the Western District of Texas.
Before JOLLY, DUHE, and
BARKSDALE, Circuit Judges.
DUHE, Circuit Judge:
Lackey, a Texas death row inmate, appeals the district
court's decision denying his petition for writ of habeas
corpus. We affirm.
In 1983, a Texas jury
found Clarence Lackey guilty of capital murder.
At the punishment phase of the trial, the jury answered
affirmatively the special issues submitted under the former
Tex.Code Crim.Proc.Ann. art. 37.071(b),
requiring the trial court to impose a death sentence. In
1989, the Texas Court of Criminal Appeals affirmed Lackey's
conviction and sentence. See Lackey v. State, 819 S.W.2d 111
(Tex.Crim.App.1989). Shortly thereafter, the Supreme Court
decided Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106
L.Ed.2d 256 (1989). Lackey petitioned the Court of Criminal
Appeals for rehearing in light of that opinion. After
considering Lackey's Penry claims, the court affirmed the
judgment. See Lackey v. State, 819 S.W.2d 111, 128 (Tex.Crim.App.1991).
Following this affirmance, Lackey sought a writ of habeas
corpus in state court, which was denied. Lackey then filed a
federal habeas petition and request for a stay of execution.
The district court granted the stay, and after briefing and
an evidentiary hearing, denied relief. This appeal followed.
I. Penry Claims
During the punishment
phase of Lackey's trial, he requested an instruction
regarding mitigating evidence, which was denied. On appeal,
Lackey contends that the trial court's refusal to give the
requested instruction unconstitutionally restricted his
opportunity to present mitigating evidence. Specifically,
Lackey argues that, without the requested instruction, the
Texas special issues did not allow the jury to give
mitigating effect to the following evidence: (1) his
intoxication at the time of the offense; (2) his history of
excessive drinking; (3) his low intelligence; and (4) his
childhood abuse. In support of his arguments, he relies on
the Supreme Court's decision in Penry, 492 U.S. at 302, 109
S.Ct. at 2934, 106 L.Ed.2d 256 (1989), and the cases that
have clarified its holding.
In Penry, the Supreme
Court held that, absent additional instructions to the jury,
the Texas special issues did not permit the jury to give
effect to the mitigating evidence of Penry's mental
retardation and history of childhood abuse. According to the
Court, in the absence of an instruction defining the term "deliberately"
in the first special issue, the jury may have been precluded
from giving effect to their possible opinion that Penry's
mental retardation and history of childhood abuse made him "less
able than a normal adult to control his impulses or to
evaluate the consequences of his conduct" and thus less
personally culpable. Id. at 323, 109 S.Ct. at 2949.
With respect to the second
issue, the Court found that the mitigating evidence was a
double-edged sword: it mitigated his culpability and at the
same time it indicated that he would be dangerous in the
future. Id. at 324, 109 S.Ct. at 2949. Finally, the evidence
was not relevant to the third issue. The Court concluded
that the state court erred by not instructing the jury that
it could consider and give effect to the mitigating evidence
of Penry's mental retardation and childhood abuse by
declining to impose the death sentence.
Subsequent to Penry, the
Supreme Court explained that a state's refusal to give
additional instructions does not amount to constitutional
error unless there is a " 'reasonable likelihood that the
jury applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant
mitigating evidence.' " Johnson v. Texas, --- U.S. ----,
----, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (quoting
Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190,
1198, 108 L.Ed.2d 316 (1990)). Applying this standard, we
hold that Lackey's mitigating evidence did not require
At the punishment phase of
Lackey called Dr. Herbert Modlin, a psychiatrist and expert
witness, to testify. Dr. Modlin described Lackey as a "periodic
drinker"--a person who does not need daily drinks, but when
he does drink, he often drinks too much causing him to
blackout. Dr. Modlin attributed Lackey's crime to an
alcohol-induced blackout that caused Lackey to lose contact
with reality and rendered him capable of engaging in
automatic behavior. Lackey adduced additional evidence that
his drinking problem was treatable, that he was a good
candidate for treatment, and that diagnostic and treatment
facilities were available to him in prison. Dr. Modlin
concluded that, in his expert opinion, Lackey was not likely
to pose a future threat to society.
We have previously stated
that the Texas sentencing scheme does not preclude the jury
from giving mitigating effect to evidence of a defendant's
voluntary intoxication at the time of the offense. See, e.g.,
James v. Collins, 987 F.2d 1116, 1121 (5th Cir.), cert.
denied, --- U.S. ----, 114 S.Ct. 30, 125 L.Ed.2d 780 (1993);
Cordova v. Collins, 953 F.2d 167, 170 (5th Cir.), cert.
denied, --- U.S. ----, 112 S.Ct. 959, 117 L.Ed.2d 125
Unlike Penry's mental
retardation and childhood abuse, "voluntary intoxication is
not the kind of 'uniquely severe permanent handicap[ ] with
which the defendant was burdened through no fault of his own'
that requires a special instruction to ensure that the
mitigating effect of such evidence finds expression in the
jury's sentencing decision." Cordova, 953 F.2d at 170 (quoting
Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir.1992), aff'd,
--- U.S. ----, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993)). "[E]vidence
of voluntary intoxication can be given full effect by the
jury in deciding whether the defendant acted deliberately."
Id. Furthermore, the sentencing jury could have reasonably
taken into consideration Dr. Modlin's testimony that Lackey
would not be a future threat to society in answering the
Likewise, no special
instruction was necessary to effectuate evidence presented
on Lackey's history of childhood abuse or low intelligence.
At the sentencing hearing, Lackey's mother told the jury
that during his childhood she and Lackey were physically
abused by his father. With regard to his low intelligence,
both Lackey's mother and Dr. Modlin testified that Lackey
did poorly in school. Additionally, Dr. Modlin testified
that Lackey's IQ was below normal.
This evidence was not
relevant to the first special issue because there was no
suggestion that Lackey's criminal act was attributable to
his low intelligence or childhood abuse. See Madden v.
Collins, 18 F.3d 304, 307 (5th Cir.1994) (stating that to be
relevant there must be a nexus between the mitigating
evidence and the criminal act).
To the contrary, Dr.
Modlin testified that Lackey's background and psychological
profile could not explain his crime. Furthermore, Lackey's
trial counsel argued to the jury that the evidence of
Lackey's low intelligence and history of childhood abuse
were not offered to excuse Lackey's crime, but rather to
show that he would not be a future danger to society. We
conclude that the jury could have reasonably considered this
evidence in answering the second issue.
mitigating evidence, as proffered, was within the jury's
effective reach, acceptance of Lackey's claim would require
this Court to announce a new rule of constitutional law.
Consequently, federal habeas relief is foreclosed. See
Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 1075-76,
103 L.Ed.2d 334 (1989).
II. Intoxication/Insanity Instruction
Lackey contends that the
following instruction, given pursuant to section 8.04 of the
Texas Penal Code, prevented the jury from giving mitigating
effect to his evidence of voluntary intoxication at the time
of the offense:
You are instructed that
under our law neither intoxication nor temporary insanity of
mind caused by intoxication shall constitute any defense to
the commission of crime. Evidence of temporary insanity
caused by intoxication may be considered in mitigation of
the penalty attached to the offense.
By the term "intoxication"
as used in this Charge is meant that at the time of the
conduct charged, the defendant, as a result of voluntary
intoxication, either did not know that his conduct was wrong
or was incapable of conforming his conduct to the
requirements of the law which he has found to have violated.
Now, if you find from the
evidence that the defendant, Clarence Allen Lackey, at the
time of the commission of the offense for which he is on
trial was laboring under temporary insanity as above defined,
produced by voluntary intoxication as defined, that you may
take such temporary insanity into consideration in
mitigation of the penalty which you attach to the offense
for which you have found him guilty.
Lackey argues that the
instruction precluded the jury from considering mitigating
evidence of voluntary intoxication that did not rise to the
level of temporary insanity. In effect, Lackey is arguing
that the jury was precluded from considering evidence that
he did not ask them to consider. He did not present evidence
or argue at trial that his voluntary intoxication amounted
to anything less than temporary insanity. Rather, he
presented evidence that his criminal conduct was
attributable to an "alcoholic blackout," which caused him to
lose contact with reality and rendered him capable of
engaging in automatic behavior. Because Lackey failed to
proffer evidence of non-insane intoxication in mitigation of
punishment, whether the jury could properly consider it is
not a proper subject for habeas review. See Delo v. Lashley,
--- U.S. ----, ----, 113 S.Ct. 1222, 1225, 122 L.Ed.2d 620
(1993) ("Nothing in the Constitution obligates state courts
to give mitigating circumstantial instructions when no
evidence is offered to support them.")
III. Interference of the Texas Capital
Sentencing Scheme With
Counsel's Presentation of Evidence
Appellant argues that the
Texas capital sentencing statute unconstitutionally
interfered with his trial counsel's ability to make
decisions about his defense. Specifically, Lackey argues
that because mental health evidence could be considered in
aggravation of the second special issue, the statutory
scheme prevented his trial counsel from developing and
presenting mitigating evidence about his mental condition.
We have considered and rejected this precise argument in
previous cases. See Black v. Collins, 962 F.2d 394, 407 (5th
Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2983, 119 L.Ed.2d
601 (1992); May v. Collins, 948 F.2d 162, 166-68 (5th
Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 907, 116
L.Ed.2d 808 (1992).
IV. Ineffective Assistance of Counsel
Lackey suggests that his
trial counsel rendered ineffective assistance by failing to
produce a mental health expert to develop a nexus between
Appellant's childhood abuse and his violence as an adult. He
also suggests that his appellate counsel was ineffective for
failing to pursue a challenge to the state law prohibition
against informing jurors of the legal effect of a failure to
agree on answers to the special issues. Because Lackey did
not raise these claims before the state court on habeas
review or the federal district court,
we cannot consider his claims here. Alexander v. McCotter,
775 F.2d 595, 603 (5th Cir.1985); see also Barnard v.
Collins, 958 F.2d 634, 643 n. 12 (5th Cir.1992), cert.
denied, --- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d 142
V. Denial of Funds for expert assistance
Lackey contends that the
trial court unconstitutionally denied him funds for the
assistance of non-psychiatric experts. The district court
correctly found that Appellant had procedurally defaulted
the claim in state court. Lackey did not request such
assistance on the record or obtain a ruling, and the state
habeas court held this claim was procedurally barred. When a
state-law default prevents the state court from reaching the
merits of a federal claim, that claim cannot be reviewed
absent a showing of cause and prejudice. Ylst v. Nunnemaker,
501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Cowart
v. Hargett, 16 F.3d 642, 644-45 (5th Cir.1994). Because
Lackey has not even attempted to argue cause and prejudice,
we are precluded from considering his claim.
VI. Punishment-phase Instructions
Regarding Jury Agreement
Appellant claims his
constitutional rights were violated by a statutory
prohibition against informing jurors of the effect of their
failure to agree on a punishment phase issue.
The district court properly held that this claim was
procedurally barred. As noted by the district court, the
state habeas court rejected Lackey's claim on the ground
that he did not object to the jury charge or request a
special instruction. Furthermore, Appellant has not argued
circumstances permitting our review of his defaulted claim.
VII. Failure to Define Reasonable Doubt
Lackey contends that the
state court violated his constitutional rights by refusing
to apply retroactively the principles of Geesa v. State, 820
S.W.2d 154 (Tex.Crim.App.1991). In Geesa, which was decided
after Lackey's trial but before Lackey's conviction became
final, the Texas Court of Criminal Appeals announced a new
rule requiring a definition of the term "reasonable doubt"
in jury instructions in criminal trials. The state court
also announced that the new rule would only apply to
criminal cases where the trial occurred after Geesa.
Appellant argues that Geesa is based on federal law, and
therefore, Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct.
708, 93 L.Ed.2d 649 (1987), requires that it be given
Contrary to Lackey's
assertions, the rule announced in Geesa was not required by
the federal constitution or law. See Victor v. Nebraska, ---
U.S. ----, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (stating
that "the Constitution neither prohibits trial courts from
defining reasonable doubt nor requires them to do so"); see
also Thompson v. Lynaugh, 821 F.2d 1054, 1060-61 (5th Cir.),
cert. denied, 483 U.S. 1035, 108 S.Ct. 5, 97 L.Ed.2d 794
(1987) (noting that "attempts by trial courts to define 'reasonable
doubt, have been disfavored by this Court"). Thus, the
federal retroactive principles discussed in Griffith have no
bearing on the state's application of its new rule. See
American Trucking Ass'ns Inc. v. Smith, 496 U.S. 167, 177,
110 S.Ct. 2323, 2330, 110 L.Ed.2d 148 (1990).
argues that the state court's refusal to give retroactive
application to Geesa violated his right to equal protection.
Because Lackey has not made any attempt to show this Court
that the state did not have a rational basis for its refusal
to apply the rule of Geesa retroactively, we reject Lackey's
claim. See Johnson v. Louisiana, 406 U.S. 356, 363-65, 92
S.Ct. 1620, 1625-26, 32 L.Ed.2d 152 (1972).VIII. Cumulative
Effect of Errors
Lackey contends that the
cumulative effect of the foregoing alleged errors
constituted an independent constitutional violation. Because
Lackey has not shown any error, much less constitutional
error, we must reject his contention.
IV. Execution After Long Imprisonment
Finally, Appellant notes
that he has been on death row since 1983 and argues that
executing him after his lengthy incarceration "makes no
measurable contribution to accepted goals of punishment." He
also argues that the addition of the death penalty to his
lengthy incarceration is "grossly out of proportion to his
isolated act." We will not address the merits of these
arguments for two reasons. First, Appellant raises these
arguments for the first time on appeal. See Alexander, 775
F.2d 603. Second, granting Lackey the relief he seeks would
require us to create a new rule. See Teague, 489 U.S. at
311, 109 S.Ct. at 1076.
For the foregoing reasons,
the district court's denial of Lackey's petition for writ of
habeas corpus is AFFIRMED, and the stay of execution issued
by the district court is VACATED.
52 F.3d 98
Clarence Allen LACKEY, Petitioner-Appellee,
Wayne SCOTT, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellant.
United States Court of Appeals,
April 26, 1995.
Appeal from the United
States District Court for the Western District of Texas.
Before JOLLY, DUHE and
BARKSDALE, Circuit Judges.
of Texas appeals and moves to vacate the stay imposed by the
district court on the execution of Clarence Lackey, a Texas
death row inmate. The district court stayed the execution on
the basis that reasonable jurists would disagree on the
application of the abuse-of-the-writ doctrine, and the
nonretroactivity doctrine, to Lackey's second habeas
petition and on the merits of Lackey's claim. Because, as we
have previously held,
the nonretroactivity doctrine bars Lackey's claim, we vacate
Lackey beat, kidnapped,
and murdered Diane Kumph on July 31, 1977. Lackey was
arrested, convicted of capital murder, and sentenced to
death. Although the Texas Court of Criminal Appeals reversed
his conviction, Lackey v. State, 638 S.W.2d 439, 476 (Tex.Crim.App.1982),
Lackey was again convicted and sentenced to death. The Court
of Criminal Appeals ultimately affirmed his conviction on
rehearing. Lackey v. State, 819 S.W.2d 111, 136 (Tex.Crim.App.1989).
In his first federal
habeas petition in this court, Lackey argued that executing
him after his lengthy incarceration would constitute cruel
and unusual punishment under the Eighth Amendment. In
particular, Lackey argued that "executing him after his
lengthy incarceration 'makes no measurable contribution to
accepted goals of punishment' [and that] the addition of the
death penalty to his lengthy incarceration is 'grossly out
of proportion to his isolated act.' " Lackey v. Scott, 28
F.3d 486, 492 (5th Cir.1994) (quoting Appellant's Opening
Brief at 42), cert. denied, --- U.S. ----, 115 S.Ct. 743,
130 L.Ed.2d 644 (1995). We refused to consider his argument
for two reasons: "First, Appellant raises these arguments
for the first time on appeal. Second, granting Lackey the
relief he seeks would require us to create a new rule." Id.
Lackey's second federal
petition also asserts that his execution after his lengthy
incarceration on death row would constitute cruel and
unusual punishment under the Eighth Amendment. His present
claim specifically targets the alleged procedural default of
the State as the cause for violation of his Eighth Amendment
rights. As the district court put it: "Debatably, that which
is truly 'new' ... is the added emphasis on 'who is to blame'
for the bulk of the time he has spent on death row." Lackey
v. Scott, 885 F.Supp. 958, 967-68 (W.D.Tex.1995). The Court
of Criminal Appeals denied this same claim. Ex parte Lackey,
Writ No. 24,267-02 (Tex.Crim.App. Mar. 1, 1995), cert.
denied, --- U.S. ----, 115 S.Ct. 1421, 131 L.Ed.2d 304
(1995). The district court stayed Lackey's execution, which
is scheduled for April 28, 1995.
We review a stay imposed
under 28 U.S.C. Sec. 2251 for abuse of discretion. Delo v.
Stokes, 495 U.S. 320, 322, 110 S.Ct. 1880, 1881-82, 109 L.Ed.2d
325 (1990). A federal court may stay an execution based on a
second or successive federal habeas petition only when
substantial grounds exist upon which relief may be granted.
Id. at 321, 110 S.Ct. at 1881.
As we have already decided
in this case, Lackey's claim invokes the nonretroactivity
Federal courts are barred from applying new constitutional
rules of criminal procedure retroactively on collateral
review. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060,
1075, 103 L.Ed.2d 334 (1989). Teague prohibits application
of a new procedural rule to a conviction that was final
before the rule's creation. The nonretroactivity doctrine
applies equally to a novel application of an old rule.
Stringer v. Black, 503 U.S. 222, 227-29, 112 S.Ct. 1130,
1135, 117 L.Ed.2d 367 (1992).
Neither of Teague 's two
narrow exceptions apply to Lackey's claim. The first
concerns primary, private, individual conduct that is a
substantive due process right; the second concerns
procedures implicit within ordered liberty that
significantly improve factfinding. Teague, 489 U.S. at
311-12, 109 S.Ct. at 1075-76. The new rule that Lackey seeks
would neither place certain primary conduct beyond
prohibition nor apply to factfinding.
The district court held
that reasonable jurists would debate whether Teague applies
to this case because Lackey could not have raised this claim
on direct review. Nevertheless, Lackey's claim attacks the
punishment judgment imposed by the trial court. He claims
the State's procedural delay caused the Eighth Amendment
violation. The Supreme Court requires nonretroactivity on
collateral review because the finality of a state criminal
judgment promotes deterrence. Teague, 489 U.S. at 309, 109
S.Ct. at 1074-75. The Court has not carved out any
exceptions to Teague other than two narrow ones.
Last time we held that we
could not grant Lackey relief because to do so would require
us to create a new rule. Lackey v. Scott, 28 F.3d at 492.
The district court held that reasonable jurists would debate
whether the grounds for relief between the successive
petitions are identical for purposes of 28 U.S.C. Sec. 2254
Rule 9(b). We need not address the issue of identical
grounds because both claims require the same analysis under
Teague. Both claims attack the state court judgment yet
arise from postconviction facts. Consequently, Teague 's
nonretroactivity doctrine bars Lackey's current claim. We
conclude that the district court abused its discretion by
staying Lackey's execution.
nonretroactivity doctrine prevents us and the district court
from granting Lackey's petition, we VACATE the stay imposed
by the district court.