146 F.3d 675 | 9th Cir. | 1998
Lead Opinion
Douglas Edward Gretzler seeks to appeal the district court’s denial of his second petition for habeas corpus relief under 28 U.S.C. § 2254 and the denial of his application for stay of his execution scheduled for 3:00 p.m., Wednesday, June 3, 1998. We grant his motion for a Certificate of Appealability and deny the remaining motions as moot. The facts and procedural background are set forth in our disposition of the first petition. See Gretzler v. Stewart, 112 F.3d 992, (9th Cir.1997).
Gretzler here claims that his execution would be cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution because he has been on death row since 1975 and his execution would no longer serve any deterrent or retributive purpose. His claim is similar to the one we rejected in Ceja v. Stewart, 134 F.3d 1368 (9th Cir.1998), as barred by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(b)(3). In addition, Gretzler’s prior § 2254 petition was amended
The district court’s order dismissing the petition and denying the stay of execution is AFFIRMED.
Dissenting Opinion
dissenting,
I would grant the stay and remand to the district court to consider the merits of the petition. See Martinez-Villareal — U.S. -, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998).