Submitted March 17, 2015
Appeal from United States District Court for the Western District of Missouri - Kansas City.
For Cecil Clayton, Petitioner - Appellant: Elizabeth Unger Carlyle, Kansas City, MO; Susan M. Hunt, LAW OFFICE OF SUSAN M. HUNT, Kansas City, MO.
Cecil Clayton, Petitioner - Appellant, Pro se, Mineral Point, MO.
For Al Luebbers, Respondent - Appellee: Caroline Coulter, Assistant Attorney General, Gregory Michael Goodwin, Assistant Attorney General, Stephen David Hawke, Assistant Attorney General, Michael Joseph Spillane, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Jefferson City, MO.
Before LOKEN, BYE, and SMITH, Circuit Judges. BYE, Circuit Judge, dissenting.
Cecil Clayton moves for stay of his execution scheduled for March 17, 2015, at 6:00 p.m., pending full briefing and argument of his appeal from the district court's denial of his second-in-time federal habeas corpus petition and supplemental petition raising incompetence to be executed.
Clayton filed a petition for writ of habeas corpus in the Missouri Supreme Court on March 10, 2015, claiming that he is not competent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Missouri Revised Statutes § 552.060.1 (2000). The Missouri Supreme Court denied his petition on March 14, 2015.
In his federal habeas corpus petition, Clayton claims that he is not competent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). He also claims that he cannot be executed because he is intellectually disabled under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The district court denied the petition, finding that it could not
conclude under the deferential AEDPA [Antiterrorism and Effective Death Penalty Act] standards that the [Missouri Supreme Court's] decision was contrary to clearly established Federal law, as determined by the United States Supreme Court; involved an unreasonable application of clearly established Federal law; or was based on an unreasonable ...