5 F.3d 1125 (8th Cir. 1993), 93-1050, Otey v. Hopkins

Docket Nº:93-1050.
Citation:5 F.3d 1125
Party Name:Harold Lamont OTEY, Appellant, v. Frank X. HOPKINS, Warden of the Nebraska Penal and Correctional Complex, Appellee.
Case Date:September 27, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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5 F.3d 1125 (8th Cir. 1993)

Harold Lamont OTEY, Appellant,


Frank X. HOPKINS, Warden of the Nebraska Penal and

Correctional Complex, Appellee.

No. 93-1050.

United States Court of Appeals, Eighth Circuit

September 27, 1993

Submitted June 7, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Jan.

3, 1994.[*]

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

J. Kirk Brown, Lincoln, NE, argued (Don Stenberg on the brief), for appellee.

Before JOHN R. GIBSON, BOWMAN, and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

Harold Lamont Otey appeals from the district court's denial of his writ of habeas corpus. Otey has unsuccessfully challenged his capital sentence in five separate actions in both state and federal courts. Having presented his claims to sixteen separate judicial forums from 1978 to 1991, and having these claims rejected each time, Otey threw himself on the mercy of the State of Nebraska Board of Pardons (the Board). The Board denied his request for commutation, and this resulted in litigation in five additional state and federal forums attacking the federal constitutionality of the procedures utilized by the Board. We hold we have no subject matter jurisdiction under 28 U.S.C. Sec. 2254 to consider his claims, and dismiss.


On April 13, 1978, Otey was convicted in Nebraska state court of first degree murder in the perpetration of first degree sexual assault, and was sentenced to death. The murder occurred June 11, 1977. These past sixteen years, Otey has challenged his sentence many times, first on direct appeal in state court, see State v. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979), cert. denied, 446 U.S. 988, 100 S.Ct. 2974, 64 L.Ed.2d 846 (1980); on motion for postconviction relief in state court, see State v. Otey, 212 Neb. 103, 321 N.W.2d 453, cert. denied, 459 U.S. 1080, 103 S.Ct. 502, 74 L.Ed.2d 641 (1982); in a petition for a writ of habeas corpus in federal court, see Otey v. Grammer, 859 F.2d 575 (8th Cir.), reh'g denied, 869 F.2d 1137 (8th Cir.), cert. denied, 497 U.S. 1031, 110 S.Ct. 3288, 111 L.Ed.2d 796 (1988); in a second state habeas corpus proceeding, see State v.

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Otey, 236 Neb. 915, 464 N.W.2d 352 cert. denied, --- U.S. ----, 111 S.Ct. 2279, 115 L.Ed.2d 965 (1991); and again in a second petition for a writ of habeas corpus in federal court, see Otey v. Hopkins, 951 F.2d 354 (8th Cir.1991) (table), cert. denied, --- U.S. ----, 112 S.Ct. 894, 116 L.Ed.2d 797 (1992), aff'g denial of motion to vacate, 992 F.2d 871 (8th Cir.1993) (per curiam). Thus, Otey has unsuccessfully availed himself of every conceivable state and federal judicial avenue to challenge his sentence. His sentence of death has been pronounced valid by both state and federal courts. His right to life has been removed by the judicial system. He has been sentenced to death with all the process due him.

Having exhausted every means of challenging his sentence, Otey was scheduled to be executed June 10, 1991. His only remedy left was to appeal for mercy to the Board, the Nebraska executive forum with authority to commute sentences. The Board is composed of the governor, the secretary of state, and the attorney general. 1 See Neb.Rev.Stat. Sec. 83-1,127 (Reissue 1987).

In anticipation of Otey's request for clemency, the Board met on June 6, 1991, to develop procedures for use in all death penalty commutation applications. Counsel for Otey was present; notably, he thanked the Board for developing these procedures. He did not raise any objections to the procedures developed. He also did not object to the attorney general, who had previously prosecuted Otey, sitting on the Board.

Otey filed a request for commutation to a life sentence on June 7, 1991. Upon this filing, the Nebraska statute mandated an automatic stay of execution until the Board "rule[d] on such application." Neb.Rev.Stat. Sec. 83-1,132 (Reissue 1987). Although neither Nebraska statutes nor the Nebraska Constitution required a hearing, the Board granted Otey an informal public hearing on June 28 and 29, 1991. Counsel for Otey, counsel for the victim's family, assistant attorneys general, who appeared as counsel for the state, and various other persons spoke concerning whether the Board should grant commutation. For security reasons, Otey appeared via videotape. The Board also had before it a brief from Otey supporting his application, a report from the Board of Parole, and correspondence from interested parties in all fifty states and twenty-one foreign countries. After a recess, the Board voted 2-1 to deny commutation. The governor and the attorney general voted to deny the request, and the secretary of state voted to grant it. The Board then vacated the stay of execution and set another execution date. A description of the hearing and the events leading up to it can be found at Otey v. State, 240 Neb. 813, 485 N.W.2d 153, 158-61 (1992).

Otey brought an action in state district court, challenging the procedures of the Board on state and federal grounds similar to those which he raises in this action. The state district court granted Otey another stay of execution and subsequently rendered a judgment in his favor. The Nebraska Supreme Court unanimously reversed the judgment of the state district court and vacated the stay. Id. 485 N.W.2d at 163. The court based its decision on a holding that the Nebraska Constitution separation of powers clause prevents the judicial branch from reviewing the executive actions of the Board. See id. at 163. The court also discussed the merits, concluding that in any event, Otey's rights had not been violated. See id. at 164-68.

Otey next filed this successive and third petition in federal court for a writ of habeas corpus, claiming the actions of the Board violated his rights under the Due Process and Equal Protection Clauses and the Eighth Amendment. He did not request the district court to review the actual decision of the Board, but rather requested that the court review the procedures and make-up of the Board. The district court granted Otey another

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stay of execution in order to review the extensive records. The state moved in this court to vacate the stay, and this court denied that motion. Otey v. Hopkins, 972 F.2d 210 (8th Cir.1992).

Having accepted jurisdiction and after reviewing the merits, the district court granted the state's motions for summary judgment and denied Otey's petition. Otey now brings his fourth appeal to this court, arguing that the district court erred in granting the state's motions for summary judgment.


  1. Otey's Claims

    Otey brought his petition in federal court pursuant to 28 U.S.C. Sec. 2254, requesting a writ of habeas corpus. Otey alleged the Board violated his rights under the Eighth Amendment and the Due Process Clause because the attorney general did not consider his request for clemency in an unbiased manner. Additionally, he claimed that prior to the commutation hearing, the attorney general discussed with the assistant attorneys general the state's presentation for the hearing. He also claimed the Board prevented the Parole Board from including in its report a recommendation regarding commutation. Finally, Otey alleged the Board violated his rights under the Equal Protection Clause by adopting the procedures used in his hearing just prior to his request for clemency, by allowing the assistant attorneys general to appear as counsel for the state, 2 and by not requesting a recommendation from the Board of Parole regarding whether Otey should be granted commutation. He claims this treatment was different from the treatment given other persons seeking clemency from the Board.

  2. District Court Decision

    The district court held the Due Process Clause was not implicated because Otey had no protected interest which would trigger the protections of the clause. The court relied on Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 466, 101 S.Ct. 2460, 2465, 69 L.Ed.2d 158 (1981), which held that when a commutation statute does not impose standards as to when clemency must be granted, the statute does not create a protected interest in clemency and does not trigger due process protections. 3 See id. at 467, 101

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    S.Ct. at 2465 (holding that mere existence of the power to commute a lawfully imposed sentence creates no right or entitlement; no right was created other than the right to seek commutation); see also Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 2465, 75 L.Ed.2d 813 (1983) (stating that no liberty interest is created when the decisionmaker is not required to ground the decision on objective, defined criteria). Because neither the Nebraska Constitution nor the clemency statute impose standards on the Board's actions, the court held that the Board is not subject to the requirements of the Due Process Clause. 4

    The district court noted that Otey's Eighth Amendment claim was based on an assertion that a death penalty scheme with no possibility of clemency is unconstitutional. Because Nebraska statutes do not prohibit executive clemency, and the constitution does not require a neutral factfinder in clemency proceedings, the court held that Otey's rights under the Eighth Amendment were not violated.

    After allowing discovery concerning Otey's equal protection claim, the district court held that Otey's equal protection rights also were not violated. The evidence before the court revealed that prior to 1969 the Board did not exist. Since 1969, the Board had received only one application, other than Otey's, for commutation from a capital sentence. Because that petitioner's federal habeas corpus proceeding was still pending, the Board did not hold a hearing to consider that request and did not receive a recommendation from the Board of Parole. Thus, Otey's hearing was the first hearing held by the Board to consider a request for...

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