Pickens v. Tucker, 91-2103EA

Decision Date12 May 1994
Docket NumberNo. 91-2103EA,91-2103EA
Citation23 F.3d 1477
PartiesEdward Charles PICKENS, Appellant, v. Jim Guy TUCKER, Governor of the State of Arkansas; Larry Norris, Director, Arkansas Department of Correction, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Appeal from the United States District Court for the Eastern District of Arkansas.

Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges.

AMENDED ORDER

This matter comes before the court on appellees' suggestion for rehearing en banc. It is hereby ordered that appellees' suggestion is granted. Chief Judge Richard S. Arnold, Judge McMillian, Judge Wollman and Judge Morris S. Arnold would deny the suggestion for rehearing en banc.

By operation of the order granting the suggestion for rehearing en banc, the panel's May 9, 1994 judgment is vacated.

On rehearing en banc the district court's May 4, 1994 order and judgment, --- F.Supp. ----, are affirmed for the reasons stated in that order. The stay of execution of a sentence of death previously granted by this court on May 9, 1994 is hereby vacated. Chief Judge Richard S. Arnold, Judge McMillian, Judge Wollman, and Judge Morris S. Arnold would grant a stay, reverse the district court's order and remand the matter for further proceedings consistent with the panel's May 9, 1994 judgment.

The clerk is directed to file Judge Morris S. Arnold's dissent as an attachment to this order. Chief Judge Richard S. Arnold, Judge McMillian and Judge Wollman join in Judge Morris S. Arnold's dissent.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981) is, despite the state's argument, rather in Pickens's favor than against him. While it holds that due process does not require that a petitioner be given reasons for a denial of clemency, it also holds that there is a constitutionally protected right to seek commutation if the state creates a procedure to obtain it. It seems to me axiomatic that this right to access must be real: It must mean access to a sentient and neutral decision-maker. I don't mean that the decision-maker has to be ignorant; only that he must be unbiased. An impartial decision-maker is a fundamental requirement of due process. See, e.g., Morrisey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972). Furthermore, Pickens has stated a...

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8 cases
  • US v. Schultz
    • United States
    • U.S. District Court — Northern District of Iowa
    • February 20, 1996
    ... ... Tucker, 638 F.2d 1292, 1296 (5th Cir.), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 111 ... ...
  • Bacon v. Lee
    • United States
    • North Carolina Supreme Court
    • August 2, 2001
    ...to clemency proceedings in similar situations. Id. at 983-84 (citing Pickens v. Tucker, 851 F.Supp. 363 (E.D.Ark.), aff'd, 23 F.3d 1477 (8th Cir.), cert. denied, 511 U.S. 1079, 114 S.Ct. 1668, 128 L.Ed.2d 457 (1994)). We find the rationale of these decisions persuasive and conclude that Bac......
  • Otey v. Stenberg, 94-3095
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 31, 1994
    ...clemency applicant and that thereafter, as governor, the former attorney general denied the clemency application), aff'd en banc, 23 F.3d 1477 (8th Cir.1994). As recently as July 14, 1994, see Henderson v. Baird, 29 F.3d 464 (8th Cir.1994), this court cited with approval the following langu......
  • Perry v. Brownlee, 97-3101
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 5, 1997
    ...decisionmaker under the Arkansas executive clemency statute. Pickens v. Tucker, 851 F.Supp. 363, 365 (E.D.Ark.), aff'd, 23 F.3d 1477 (8th Cir.1994) (en banc); see also Wainwright, 103 F.3d at 709-10 (rejecting equal protection claim based on alleged bias of decisionmaker). Perry has offered......
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