This is a Ring v. Arizona claim, a claim that must be brought in habeas, not one of the many method of execution claims that have delayed executions through civil suits. Indeed, a check of the PACER system for USDC WDMo. shows that a stay for a lethal injection claim was denied yesterday by District Judge Nanette Laughrey in Ringo v. Lombardi, 09-CV-4095-NKL, a case in which Nunley is a co-plaintiff.

But the Ring case is 8 years old.  Couldn't Nunley have litigated that claim much earlier? He not only could, he did.  The Eighth Circuit rejected Nunley's Ring claim over 5 years ago in Nunley v. Bowersox, 394 F.3d 1079 (2005).

Under what circumstances can a federal habeas petitioner relitigate on a successive petition a claim he litigated and lost on a prior petition? Congress has specifically addressed the precise question.  The answer is absolutely none. "A claim presented in a second or successive habeas application under section 2254 that was presented in a prior application shall be dismissed."  28 U.S.C. §2244(b)((1). Period. No exceptions, unlike the "new claim" rule of paragraph (2) which does have a couple of very narrow exceptions.

So how do Nunley's lawyers and Judge Gaitan think they are getting around this unequivocal prohibition?  I can't tell from the article, and Judge Gaitan's order does not appear to be on the PACER system.  From what I know to this point, the stay appears to be improper.  This is exactly the kind of maneuver AEDPA was enacted to prevent.

Update: Now this makes no sense.  The Eighth Circuit refused to lift the stay, issuing this order.  The issue deemed to require a stay is "[i]f the right to have a jury determine his punishment did not exist when [Nunley] was originally sentenced to death, but this right was subsequently established by Ring and found to be retroactive by the Missouri Supreme Court in Whitfield, is [Nunley]'s waiver still valid?"  A footnote says, "In State v. Whitfield, 107 S.W.3d 253 (Mo. Banc 2003), the Missouri Supreme Court made Ring retroactive under state law."  But Ring is not retroactive under federal law, as the 8th correctly decided the first time, so however Missouri resolved the Ring issue cannot violate federal law to Nunley's detriment.  And what is this "waiver still valid?"  Is the theory that a waiver of jury trial that was valid when made somehow becomes retroactively invalid because the state chooses to give a new  federal constitutional rule greater retroactive effect than federal law requires? That would be an absurd theory, and even if it is deemed a new claim for the successive petition rule, it does not come close to qualifying for an exception.

Update 2: I located the

District Court opinion

, filed under the old, closed habeas case.  How does Judge Gaitan get around the successive petition bar? He doesn't. He recites Nunley's argument claiming to get around it:

Petitioner argues that this is not a second or successive habeas claim because his claim just became ripe for review and he could not have raised it before. He states that he is raising a claim based on Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980) alleging that he has a state created liberty interest under Whitfield to have a jury determine the facts necessary for the imposition of the death penalty.

Okay, petitioner argues that. Does the argument have any validity? Considering that you are applying a statute enacted for the specific purpose of stopping this kind of endless litigation, Judge Gaitan, you absolutely must say something about the validity of this argument before doing exactly what Congress intended to stop.  What do you say about it?

[sound of crickets chirping]

Judge Gaitan discusses the possible merits of the underlying argument, but as to whether Nunley has any credible claim to have gotten around the successive petition rule, he says zip.

Update 3:  The U.S. Supreme Court has decided, for whatever reason, not to vacate the stay. Justice Scalia dissents. No opinion relating to order, at least not yet. Give 'em hell, Nino.