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

The majority begins its opinion by misrepresenting what is before us. Two matters were presented by McKenzie: 1) an appeal from the district court’s dismissal of the petition for habeas corpus and 2) a motion for a stay of execution made directly to this court. The resolution of the first issue is clear — the district court erred in its sua sponte dismissal McKenzie’s petition as “successive and repetitive” without giving him a chance to respond. Given this clear error, we should have immediately vacated the dismissal and quickly remanded to the district court for proper proceedings,…