Otey v. Stenberg, 94-3095

• Decision Date: 31 August 1994
• Docket Number: No. 94-3095,94-3095
• Citation: 34 F.3d 635
• Parties: Harold Lamont OTEY, Appellant, v. Donald B. STENBERG, Attorney General of the State of Nebraska; E. Benjamin Nelson, Governor of the State of Nebraska; Allen Beermann, Secretary of State of the State of Nebraska; and Frank X. Hopkins, Warden of the Nebraska State Penitentiary, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 635

34 F.3d 635

Harold Lamont OTEY, Appellant, v. Donald B. STENBERG, Attorney General of the State of Nebraska; E. Benjamin Nelson, Governor of the State of Nebraska; Allen Beermann, Secretary of State of the State of Nebraska; and Frank X. Hopkins, Warden of the Nebraska State Penitentiary, Appellees.

No. 94-3095.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 30, 1994.

Decided Aug. 31, 1994.

Shawn D. Renner, Lincoln, NE, argued, for appellant.

J. Kirk Brown, Lincoln, NE, argued, for appellee.

Before BOWMAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

A. DUE PROCESS CLAIM

Appellant Otey's core claim in this section 1983 action ¹ is that his right to both substantive and procedural due process was violated by the procedure utilized by the Nebraska Board of Pardons (Pardons) at his clemency hearing. He pleaded for mercy that his sentence of death in 1978 for a murder in 1977 be commuted to life. He had voluntarily confessed to first-degree murder in the perpetration of a sexual assault in the first degree. All judicial processes have been exhausted during these intervening sixteen years. See Otey, 5 F.3d at 1126-27.

Otey does not challenge any acts by Pardons regarding the submission of his application for clemency, the timeliness of its consideration or the making or preservation of the record of the clemency proceedings. He alleges only that the dual role of the attorney general as one of three decisionmakers on seventy-year-old Pardons and the appearance of two assistant attorneys general in opposition to commutation violated the Due Process Clause of the Fourteenth Amendment by denying him a "genuine opportunity" for clemency.

Historically, the role of pardon boards has been to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. Ex parte Grossman, 267 U.S. 87, 121, 45 S.Ct. 332, 337, 69 L.Ed. 527 (1925). In Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 868, 122 L.Ed.2d 203 (1993), the Supreme Court held that the appropriate forum in which to raise actual innocence claims is that of executive clemency. Otey makes no such showing. Otey has had his just due, as indicated, in the courts of law these past sixteen years. Although we decide on the merits, it is noted the "decisionmaker" defense, the lack of "recommendation" from Parole, and Parole's "limitation" to investigation were never asserted by Otey during the two-day clemency hearings on June 28 and 29, 1991. Only the appearance of the two assistant attorneys general and their opposition to commutation was contested, which objection was withdrawn by Otey's attorney. J.A. at 89. ² On substantive due process, Otey asserts five fundamental rights come into constitutional play arising from his decisionmaker claim and the claim that two assistant attorneys general opposed commutation: (1) right to life; (2) a fair decisionmaker; (3) a majority vote; (4) a parole board recommendation; and (5) failure to follow Pardons' policies. In procedural due process, he asserts an entitlement to a liberty interest in a meaningful hearing by a neutral Pardons.

No procedural or fundamental constitutional right here creates a protected interest in clemency. Deprivation is lacking. Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981). We said in Whitmore v. Gaines that "[w]hen a commutation statute does not impose standards constraining the discretion of the board as to when clemency must be granted, the statute does not create a constitutional right or entitlement sufficient to invoke the Due Process Clause." 24 F.3d 1032, 1034 (1994); Pickens v. Tucker, 851 F.Supp. 363, 365 (E.D.Ark.) (rejecting due process claim based on fact that when the governor was attorney general two of his assistant attorneys general participated in the original prosecution of the 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 language from Hall v. Lombardi, 996 F.2d 954, 958 (8th Cir.1993):

As the appellant points out, "[w]e have yet to decide whether substantive due process provides a right to be free from arbitrary and capricious state action." See Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir.1989).

The Nebraska Supreme Court, when discussing whether the Nebraska Constitution or clemency statutes created any substantive rights, stated:

[T]here are no provisions in Nebraska's Constitution or in its statutes creating a liberty interest in commutation hearings other than the right to file an application for commutation.... There are no 'substantive predicates' which limit the Board of Pardons' discretion in granting commutations, i.e., no specific criteria which an applicant must meet to earn a commutation from the Board of Pardons, no conditions which must first be met, no specific conduct which the applicant must have avoided, no guidelines of any kind which must be followed by the Board. In short, the Nebraska Board of Pardons has the unfettered discretion to grant or deny a commutation of a lawfully imposed sentence for any reason or for no reason at all.

A review of Nebraska's Constitution, statutes, and procedures reveals that no right has been conferred upon Otey beyond the right to seek a commutation. He was afforded this right. Having followed its own procedures in granting him a hearing, having consulted with the Board of Parole, and having considered Otey's application, the Board of Pardons fulfilled any obligation it had to Otey.

Otey v. State, 240 Neb. 813, 830, 485 N.W.2d 153, 166 (1992).

We recognize that the Nebraska Supreme Court did not decide the case on this ground, and thus this statement is dicta. Although not binding, it comes from the highest court in that state and confirms our own conclusions. Like the clemency statute at issue in Dumschat, the Nebraska clemency statute also is standardless. Otey had no state-created right other than the right to ask for mercy. As in Dumschat, this does not create a protectable interest in clemency. It also does not create a protectable interest in the manner in which the Board receives his request or in having unbiased decisionmakers on the Board. See Smith v. Snow, 722 F.2d 630, 631-32 (11th Cir.1983) (stating that because the Board of Pardons' power was completely discretionary, Dumschat controlled and due process did not attach to the manner in which commutation to a life sentence was considered). Due process never attached to the Nebraska clemency proceedings. Otey's distinction between Dumschat and his own case is a distinction without a difference. Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); Bundy v. Dugger, 850 F.2d 1402 (11th Cir.1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 849, 102 L.Ed.2d 980 (1989). Neither the Nebraska Constitution nor the clemency statutes impose any limitations or standards whatsoever on Pardons. Clearly this is so on any dual-role on the constituency of Pardons, or the prosecutors' opposition to commutation. There is no right to a hearing. There is no right to a personal appearance. Rules of evidence do not apply. It is a slender reed to invoke fundamental federal constitutional rights asserting the proposition that a prosecutor of a state crime is barred from contesting clemency and the state's attorney general is barred from sitting on a board the sovereign State of Nebraska by law has insisted he sit upon for the past seventy years. To agree with Otey would hardly be federalism at its best. Pleuler v. The State, 11 Neb. 547, 10 N.W. 481 (1881). See also Ex Parte Campion, 79 Neb. 364, 112 N.W. 585 (1907); State ex rel. Randall v. Hall, 125 Neb. 236, 249 N.W. 756 (1933).

We affirm the thoughtful and well-reasoned opinion of the district court. ³

B. EQUAL PROTECTION CLAIM

Otey argues he was treated differently than all prior clemency applicants on the same claims furthered under due process. Commutation in Nebraska has resided in the executive branch since 1866. Neb. Const. art. III, Sec. 12. From 1920 to 1969 the powers to commute and parole were unified in Pardons, consisting of the Governor, the Secretary of State, and the Attorney General. In 1969, the Board of Parole (Parole) was constitutionally created with power to recommend clemency. Since the creation of Parole in 1969, it has never made a recommendation to Pardons in death cases. There is a duty on the part of Parole to advise Pardons only when requested by Pardons. Neb.Rev.Stat. Sec. 83-194 (1993). It has no obligation to make a recommendation when it has not been requested to do so and there was no request with respect to the application of Otey. Parole had no written policy or established procedure with respect to making recommendations on applications for commutation of death sentences. There is no evidence that Parole was prohibited by Pardons from making a recommendation on the application for commutation by Otey.

The practice of Parole since 1983, at the latest, has been to make recommendations to Pardons only with respect to sentences of life imprisonment for murder or kidnapping.

Otey asserts that Pardons "directed" Parole not to make a recommendation on the merits of his clemency application, although no such direction had ever previously been given by Pardons to Parole. The trial court found the facts were against Otey on this claim. Neither Pardons nor any of its members prohibited Parole from undertaking its duties or from complying with established practices. Parole did what it was requested by Pardons, an investigation. The only legal duty of Pardons vis-a-vis Parole was to "consult ... concerning" the...