Parker v. State Bd. of Pardons and Paroles, No. 01-16902

• Decision Date: 11 December 2001
• Docket Number: No. 01-16902
• Citation: 275 F.3d 1032
• Parties: (11th Cir. 2001) BYRON ASHLEY PARKER, Petitioner-Appellant, v. THE STATE BOARD OF PARDONS AND PAROLES, WALTER RAY, Chair, State of Georgia Board of Pardons and Paroles, BOBBY K. WHITWORTH, GARFIELD HAMMONDS, JR., DR. BETTY ANN COOK, et al., Respondents-Appellees
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1032

275 F.3d 1032 (11th Cir. 2001)

BYRON ASHLEY PARKER, Petitioner-Appellant, v. THE STATE BOARD OF PARDONS AND PAROLES, WALTER RAY, Chair, State of Georgia Board of Pardons and Paroles, BOBBY K. WHITWORTH, GARFIELD HAMMONDS, JR., DR. BETTY ANN COOK, et al., Respondents-Appellees.

No. 01-16902

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

December 11, 2001

Appeal from the United States District Court for the Northern District of Georgia

Before EDMONDSON, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

Byron Ashley Parker, scheduled to be executed at 7:00 p.m. on Tuesday, December 11, 2001, appeals the denial of his motion under Rule 65 of the Federal Rules of Civil Procedure for a temporary restraining order ("TRO"), preliminary injunction, and/or stay of execution based on his claim for declaratory relief pursuant to 42 U.S.C. § 1983. Parker's claim alleges that, as presently constituted, the Georgia Board of Pardons and Paroles (the "Board") is incapable of providing him with a clemency hearing that comports with the minimal, constitutionally-required standards of due process that attach to such proceedings. Specifically, Parker contends that three members of the five-person board are biased and therefore should be replaced, at least for purposes of his hearing. The alleged bases for the bias are:

(a) the Chairman of the Board, Walter Ray, has stated that, "No one on death row [will] ever get clemency as long as [I am] Chairman of the Board";

(b) Chairman Ray and Board Member Bobby Whitworth are being investigated for criminal wrongdoing by the Georgia Attorney General;

(c) Board Member Eugene Walker has received an ante-litem notice of a planned sexual harassment lawsuit to be brought by his secretary, in which, pursuant to the provisions of Georgia Law, he will be represented by the Georgia Attorney General.

In his complaint, Parker disavows any allegation that any member of the Board of Pardons and Paroles is guilty of any criminal wrongdoing or unethical conduct, and specifically disavows any allegation that Chairman Ray has ever manipulated clemency votes in the past. Nonetheless, Parker argues that Chairman Ray's alleged statement about no death row inmate getting clemency is susceptible of implementation because of the unique hidden ballot voting procedures of the Board.

Under the Board's procedure, after a clemency hearing, the Members of the Board retire to their separate offices where they record their votes in private and transmit them in a sealed envelope to the Chairman. The Chairman then tallies the votes and reports whether clemency is denied or granted. The individual Board Members supposedly do not know how one another has voted and do not learn whether clemency has been granted or denied until the result of the vote is reported in the media. Because the Chairman is the only Member of the Board who knows each Member's votes and because he tallies the votes in secret, Parker argues that he is in a unique position, if so inclined, to manipulate the result of the vote without ever being discovered. Thus, Parker contends, it is especially problematic, from a due process standpoint, for the Chairman of the Board to be biased.

Parker argues that Chairman Ray and Board Member Bobby Whitworth are unable fairly to pass upon his clemency application because they are under investigation for criminal wrongdoing by the Georgia Attorney General. Parker contends that because the Georgia Attorney General is the principal advocate of his execution and because Ray and Whitworth are targets of a criminal investigation, they have an incentive to curry favor with the Attorney General by adopting the Attorney General's "position" with regard to Parker's execution. Similarly, Parker argues that because Eugene Walker will be defended by the Attorney General in the anticipated sexual harassment suit against him, Walker, too, would be inclined to rule for the "position" of the Attorney General's office against Parker's petition for clemency. We put "position" in quotation remarks because the evidence appears to be undisputed, and the district court found, that the Georgia Attorney General, as a general rule, does not appear in clemency proceedings and takes no position on whether clemency should be granted, and did not do so in this case. See Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 934 (11th Cir.2001).

A TRO or preliminary injunction is appropriate where the movant demonstrates that:

(a) there is a substantial likelihood of success on the merits;

(b) the TRO or preliminary injunction is necessary to prevent irreparable injury;

(c) the threatened injury outweighs the harm that the TRO or preliminary injunction would cause to the non-movant; and

(d) the TRO or preliminary injunction would not be averse to the public interest.

See Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985).¹

As to the claimed bias of Chairman Ray and Member Bobby Whitworth because they are allegedly being investigated by the Attorney General's Office for criminal wrongdoing, and as to the claimed bias of Member Eugene Walker because he is going to be sued for sexual harassment and will be represented by the Attorney General's office, Parker is unable to meet the first prong of the test. He has failed to show that there is a substantial likelihood of success on the merits of those claims. The reason is that his position in regard to those alleged biases was specifically addressed and rejected by this Court in Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 934 (11th Cir.2001). In Gilreath we stated that:

the district court found that no evidence showed that in Georgia the attorney general regularly advocates--or, in this case, advocated--for or against clemency and that no evidence showed that anyone familiar with Georgia's clemency procedure would believe the state attorney general's office was an advocate in the clemency proceeding. In addition, no evidence indicates what result the attorney general might have wished for this clemency proceeding. No appearance of impropriety has been established.

Id. Accordingly, there is no error in the denial of Parker's motion for a TRO or preliminary injunction on the basis of the claimed bias of Chairman Ray, Member Bobby Whitworth, and Member Eugene Walker as a result of the investigations of the first two and the possible representation of the third, by the Attorney General. Thus, Parker is not entitled to a stay of execution on this basis.

The remaining question is whether Chairman Ray's alleged statement that "No one on death row [will] ever get clemency as long as [I am] Chairman of the Board," when coupled with his unique control over the voting process as Chairman of the Board, merits any kind of relief. Parker claims that Ray made this statement over three years ago to Billy Ray Moore, a parolee whose death sentence had been commuted by the Board before Ray was on it. (According to Parker, Moore is one of six Georgia death row inmates to have his sentence commuted in the past twenty five years, and no one has ever had a death sentence commuted by a Board that includes any of the present members.) The district court granted Moore's motion to quash the subpoena requiring Moore to testify regarding his conversation with Ray on grounds of Fifth Amendment privilege.² Chairman Ray did testify, however, denying that he ever...