                 Cite as: 558 U. S. ____ (2009)           1

                    THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES
                         _________________

                    No. 09–7839 (09A521)
                         _________________


CECIL C. JOHNSON v. PHIL BREDESEN, GOVERNOR
             OF TENNESSEE, ET AL.
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS

                FOR THE SIXTH CIRCUIT

                      [December 2, 2009] 


   JUSTICE THOMAS, concurring in the denial of certiorari.
In 1981, the petitioner in this case was convicted and
sentenced to death for three brutal murders he committed
in the course of a robbery. He spent the next 29 years
challenging his conviction and sentence in state and fed
eral judicial proceedings and in a petition for executive
clemency. His challenges were unsuccessful. He now
contends that the very proceedings he used to contest his
sentence should prohibit the State from carrying it out,
because executing him after the “lengthy and inhumane
delay” occasioned by his appeals would violate the Eighth
Amendment’s prohibition on “cruel and unusual” punish
ment. See Ante, at 1 (citing Lackey v. Texas, 514 U. S.
1045, 1045–1046 (1995) (STEVENS, J., statement respect
ing denial of certiorari)).
   It has been 14 years since JUSTICE STEVENS proposed
this “novel” Eighth Amendment argument. Lackey, supra,
at 1045. I was unaware of any constitutional support for
the argument then. See Knight v. Florida, 528 U. S. 990,
990 (1999) (THOMAS, J., concurring in denial of certiorari).
And I am unaware of any support for it now. There is
simply no authority “ in the American constitutional tradi
tion or in this Court’s precedent for the proposition that a
defendant can avail himself of the panoply of appellate
2                 JOHNSON v. BREDESEN

                    THOMAS, J., concurring

and collateral procedures and then complain when his
execution is delayed.” Thompson v. McNeil, 556 U. S. ___,
(2009) (slip op., at 1) (THOMAS, J., concurring in denial of
certiorari) (internal quotation marks and citation omitted).
Petitioner cites no evidence otherwise and, for all his
current complaints about delay, did not raise a Lackey
objection to the speed of his proceedings in the 1999 ha
beas petition he filed 18 years into his tenure on death
row. See ante, at 4–5, n. 3.
  Undeterred, JUSTICE STEVENS insists that petitioner’s
Eighth Amendment claim warrants relief. It does not, and
JUSTICE STEVENS’ arguments to the contrary stand in
stark contrast not only to history and precedent, but also
to his own recent statement in Muhammad v. Kelly, 558
U. S. ___ (2009) (slip op., at 1) (statement respecting de
nial of certiorari) decrying the “perversity of executing
inmates before their appeals process has been fully con
cluded.” In JUSTICE STEVENS’ view, it seems the State can
never get the timing just right. The reason, he has said, is
that the death penalty itself is wrong. McNeil, supra, at
___ (slip op., at 4) (statement respecting denial of certio
rari) (citing Baze v. Rees, 553 U. S. 35, ___ (2008)
(STEVENS, J., concurring in judgment) (slip op., at 8, 17)).
But that is where he deviates from the Constitution and
where proponents of his view are forced to find their sup
port in precedent from the “European Court of Human
Rights, the Supreme Court of Zimbabwe, the Supreme
Court of India, or the Privy Council.” Knight, supra, at
990 (THOMAS, J. concurring in denial of certiorari).
  Eager to distinguish this case from Knight and all the
other cases in which the Court has refused to grant relief
on Lackey grounds, JUSTICE STEVENS asserts that the
petition here presents important questions regarding the
proper procedural vehicle for bringing a Lackey claim that
merit this Court’s review. First, the procedural posture in
which a Lackey claim arises does not change the fact that
                  Cite as: 558 U. S. ____ (2009)            3

                     THOMAS, J., concurring

the claim itself has no constitutional foundation. Accord
ingly, the claim’s procedural posture does not matter for
purposes of merits relief; a Lackey claim would fail no
matter how it arrived. In addition, JUSTICE STEVENS
concedes that the unusual contours of petitioner’s Eighth
Amendment claim are the reason the procedural questions
in this case are difficult. Given that, our order in this case
rightly adheres to our precedents denying relief on Lackey
claims, however presented. Second, even if the procedural
claims in this case had merit, they would not warrant
review because JUSTICE STEVENS admits that a “successful
Lackey claim would have the effect of rendering invalid a
particular death sentence,” ante, at 4, and thus would
“ ‘directly call into question the “fact” or “validity” of the
sentence itself,’ ” ante, at 4 (quoting Nelson v. Campbell,
541 U. S. 637, 644 (2004)). Accordingly, the Sixth Circuit
plainly did not err in treating petitioner’s §1983 motion as
“the functional equivalent of” a habeas petition. Ante, at
3. And for the reasons above, the panel’s treatment of the
petition as a second or successive petition would not, even
if reversed, entitle petitioner to the merits relief he seeks.
   At bottom, JUSTICE STEVENS’ arguments boil down to
policy disagreements with the Constitution and the Ten
nessee legislature. Ante, at 3–4 (“ ‘[D]elaying an execution
does not further public purposes of retribution and deter
rence but only diminishes whatever possible benefit soci
ety might receive from petitioner’s death. . . . In other
words, the penological justifications for the death penalty
diminish as the delay lengthens.” (internal quotation
marks and citation omitted)). Such views, no matter how
“steadfast[ly]” held, ante, at 2, are not grounds for enjoin
ing petitioner’s execution or for granting certiorari on the
procedural questions that attend his Lackey claim. As
long as our system affords capital defendants the proce
dural safeguards this Court has long endorsed, defendants
who avail themselves of these procedures will face the
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                    THOMAS, J., concurring

delays JUSTICE STEVENS laments. There are, of course,
alternatives. As Blackstone observed, the principle that
“punishment should follow the crime as early as possible”
found expression in a “statute, 25 Geo. II. c. 37,” decreeing
that “in case of murder, the judge shall in his sentence
direct execution to be performed on the next day but one
after sentence passed.” 4 W. Blackstone, Commentaries
*397. I have no doubt that such a system would avoid the
diminishing justification problem JUSTICE STEVENS identi
fies, but I am equally confident that such a system would
find little support from this Court. See Knight, 528 U. S.,
at 990 n. 1 (THOMAS, J. concurring). I thus concur in the
denial of certiorari.
