Woodard v. Ohio Adult Parole Authority

Decision Date03 March 1997
Docket NumberNo. 95-4099,95-4099
Citation107 F.3d 1178
PartiesEugene WOODARD, Plaintiff-Appellant, v. OHIO ADULT PAROLE AUTHORITY, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Richard J. Vickers, Gregory L. Ayers, Michael J. Benza, Asst. S. P. Defender (argued and briefed), Public Defender's Office, Ohio Public Defender Commission, Columbus, OH, for plaintiff-appellant.

Jon C. Walden (argued and briefed), Office of Attorney General of Ohio, Columbus, OH, for defendants-appellees.

Margery Malkin Koosed (briefed), Akron, OH, amicus curiae Ohio Death Penalty Task Force.

Daniel T. Kobil (briefed), Columbus, OH, Joan M. Englund (briefed), American Civil Liberties Union of Ohio Foundation, Cleveland, OH, amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.

Before: MERRITT, NELSON, and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court. MERRITT, J. (p. 1194), delivered a separate concurring opinion. NELSON, J. (pp. 1194-98), delivered a separate opinion concurring in part and dissenting in part.

MOORE, Circuit Judge.

This is a § 1983 action involving Ohio's death-penalty clemency procedures. Eugene Woodard, a death-row inmate, seeks injunctive relief against the Ohio Adult Parole Authority, arguing that its clemency procedures violate due process and various other constitutional rights. The district court entered a judgment on the pleadings against Woodard, finding his claims to be wholly without merit. Although the court's analysis was not entirely incorrect, its discussion was incomplete and its conclusions, in significant respects, premature. As a result, we vacate the judgment in part and remand for further proceedings.

I. BACKGROUND

The underlying facts associated with Woodard's aggravated murder conviction are not particularly germane to this appeal. Nevertheless, we pause to observe that Woodard apparently killed his victim during a carjacking by him and his accomplices in southeastern Cleveland. See State v. Woodard, 68 Ohio St.3d 70, 623 N.E.2d 75 (1993). Woodard was nineteen years old at the time. His conviction and death sentence were affirmed by the Ohio Court of Appeals and Ohio Supreme Court, see id., and the U.S. Supreme Court denied certiorari, Woodard v. Ohio, 512 U.S. 1246, 114 S.Ct. 2770, 129 L.Ed.2d 883 (1994).

Although the Ohio Supreme Court set October 7, 1994 as Woodard's execution date, a stay was issued on August 24, 1994 so that Woodard could pursue state post-conviction relief. Because the execution was not stayed 45 days in advance, however, the Ohio Adult Parole Authority (APA) initiated the clemency process in his case, notifying his counsel on September 6 that a hearing would be held on September 16. In addition, the APA informed Woodard's attorneys that if he desired a pre-hearing interview with the APA, such an interview would be available on September 9. Woodard's counsel objected to the short notice given by the APA, pointing out that they had only recently been assigned to represent him. Counsel further sought assurances from the APA that any clemency procedures would not interfere with their representation of Woodard--namely, that counsel would be permitted to attend and participate in the scheduled interview and hearing. When the APA did not respond, Woodard filed this § 1983 action on September 14, 1994, moving additionally for a temporary restraining order against any clemency procedures in his case. According to Woodard, a premature review would serve as an obstacle to a later, more timely clemency review, because such later review could only be obtained by leave of the APA.

On September 16, a consent decree was filed, postponing the clemency proceedings indefinitely. Defendants then moved for a judgment on the pleadings, stating that Woodard could prove no set of facts to support any of his claims. The magistrate judge to whom the case had been referred agreed, noting that the Governor's broad discretion in making clemency decisions meant that Woodard lacked any protected liberty interest in the clemency procedures which might be subject to due process requirements. The magistrate judge also found that Woodard did not have a substantive due process claim, that the clemency procedures did not violate Woodard's privilege against self-incrimination, that Woodard did not have a right to counsel in the clemency proceedings, and that the Eighth Amendment prohibition against cruel and unusual punishments was not implicated in this case. The magistrate judge did not address Woodard's additional equal protection and Ninth Amendment arguments. Despite objection, the district court adopted the magistrate judge's report and recommendation in full and entered judgment against Woodard. This appeal followed.

II. PROCEDURAL DUE PROCESS

We start with what is undoubtedly the most complicated issue in this case: procedural due process. Close scrutiny of Woodard's and amici's briefs reveals that there are actually two kinds of procedural due process arguments to be extracted therefrom, although these arguments are hardly apparent at first glance: one relates to the deprivation of a life or liberty interest arising from the clemency procedures themselves; the other deals with the general deprivation of life or liberty that begins with the initial criminal prosecution and ends with the clemency decision. In the first type of argument, the inquiry focuses on whether a life or liberty interest exists in clemency and whether it has been deprived by the clemency procedures. In the second, the question is the degree to which the clemency procedures play a necessary role in the state's overall scheme of prosecution and punishment. Given the opacity of these abstract formulations, it is understandable that the district court only recognized the first approach--in our view, the one less helpful to Woodard. As these concepts require further explanation, we set forth our analysis in some detail, beginning with basic doctrine.

A. Deprivation of a Life or Liberty Interest in the Clemency Procedures Themselves
1. Basic Doctrine

When a state acts to deprive someone of his or her interest in life, liberty, or property, that deprivation must take place in accordance with due process of law. See U.S. CONST. amend. XIV, § 1. Three questions are thus instantly generated for any given situation: (1) is there a life, liberty, or property interest at stake here? (2) is there a deprivation of that protected interest? and (3) if so, what process is due? Sometimes, a state will do something disadvantageous to an individual by, for example, summarily terminating his employment or suddenly moving her from a prison to a mental hospital. The question whether a protected property or liberty interest exists in such instances of deprivation is the threshold inquiry, and according to prevailing doctrine, state law controls as to the existence of a property interest. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-41, 105 S.Ct 1487, 1491-93, 84 L.Ed.2d 494 (1985) (termination of public employment); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9-12, 98 S.Ct. 1554, 1560-62, 56 L.Ed.2d 30 (1978) (termination of utility service). As to whether there is a liberty interest at stake, however, the Supreme Court has made it clear that both state law and the Due Process Clause itself may create such an interest. See Sandin v. Conner, 515 U.S. 472, ---- - ----, 115 S.Ct. 2293, 2297-2302, 132 L.Ed.2d 418 (1995) (transfer from Hawaii prison to California prison); see also RICHARD FALLON, DANIEL MELTZER & DAVID SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 557-62 (4th ed. 1996). According to the Court, a liberty interest may arise from federal law when the change in a prisoner's situation is "not within the range of conditions of confinement to which a prison sentence subjects an individual"--that is, when it is "qualitatively different from the punishment characteristically suffered by a person convicted of crime." Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 1745, 75 L.Ed.2d 813 (1983) (quoting Vitek v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980)). In addition, state procedures may create liberty interests that are deprived when a state actor deviates from these procedures. Sandin, 515 U.S. at ---- - ----, 115 S.Ct. at 2299-2301. Of course, even though state law plays a role in determining the existence of property or liberty interests, the ultimate question of the degree of due process protection to be afforded under the Constitution remains a federal one.

Usually, disputes over "liberty" interests arise in the prison context, where some change in the circumstances of incarceration forms the basis for a due process claim. Although it provides the most common ground for complaint, the change does not always have to involve a transfer from one type of imprisonment to another. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), inmates challenged the prison authorities' summary revocation of good time credits. In Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), plaintiffs sought a declaratory judgment that the Connecticut board's commutation and pardon procedures did not comport with procedural due process.

2. The Existence of a Federally Created Life or Liberty Interest

In this case, Woodard contends that the Ohio clemency procedures are constitutionally defective under the foregoing framework. His primary difficulty, however, lies in showing the existence of a protected life or liberty interest. First, as far as the Due Process Clause itself is concerned, the Supreme Court has decisively rejected the argument that federal law can create a liberty interest in clemency. Dumschat, 452 U.S. at 464-65, 101 S.Ct. at 2464-65. According to the Court, "The ground for a constitutional...

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