Duncan Peder McKenzie Jr. v. Rick Day, Director, Department of Corrections and Human Services

KOZINSKI, Circuit Judge.

Duncan Peder McKenzie has been on death row for two decades. In his third federal habeas petition, he claims inter alia that the state of Montana’s inordinate delay in carrying out his sentence constitutes cruel and unusual punishment, a claim similar to that raised in Texas by Clarence Allen Lackey. See Lackey v. Texas, — U.S. -, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (Stevens, J., respecting the denial of certiorari). We will refer to this claim as the “Lackey claim.”

Background

The protracted procedural history of this case is a matter of public record and need not be…