Woratzeck v. Arizona Bd. of Executive Clemency

• Citation: 117 F.3d 400
• Decision Date: 24 June 1997
• Docket Number: No. 97-99015,97-99015
• Parties: 97 Cal. Daily Op. Serv. 5300, 97 Daily Journal D.A.R. 8616 William Lyle WORATZECK, Plaintiff-Appellant, v. ARIZONA BOARD of EXECUTIVE CLEMENCY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 400

117 F.3d 400

97 Cal. Daily Op. Serv. 5300, 97 Daily Journal

D.A.R. 8616

William Lyle WORATZECK, Plaintiff-Appellant, v. ARIZONA BOARD of EXECUTIVE CLEMENCY, et al., Defendants-Appellees.

No. 97-99015.

United States Court of Appeals Ninth Circuit.

Submitted June 24, 1997. ^*

Decided June 24, 1997.

David J. Burman, Ruth Todd Chattin, Susan Fahringer, Perkins Coie, Seattle, WA, for plaintiff-appellant.

Paul J. McMurdie, Chief Counsel, Office of the Attorney General, Criminal Appeals Section, Phoenix, AZ, for defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Earl H Carroll, District Judge, Presiding. D.C. No. CV-97-1338-EHC.

Before: WALLACE, FARRIS, and BOOCHEVER, Circuit Judges.

PER CURIAM.

Woratzeck, an Arizona state prisoner sentenced to death tomorrow morning at 12:05 a.m., appeals from the district court's denial of his motion for a temporary restraining order (TRO) and stay of his execution. Denial of a TRO is normally not a final appealable order. However, since Woratzeck faces imminent execution, "the court will not require [Woratzeck] to go through the futile act of reapplying for permanent relief and the denial of a TRO may be treated as a de facto denial of a permanent injunction." Graham v. Teledyne-Continental Motors, 805 F.2d 1386, 1388 (9th Cir.1986), cert. denied, 484 U.S. 815, 108 S.Ct. 67, 98 L.Ed.2d 31 (1987). Thus, we have jurisdiction to consider Woratzeck's appeal of the TRO. We will reverse the district court's order denying this injunctive relief only if it abused its discretion, or based its decision on an erroneous legal standard or clearly erroneous findings of fact. Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir.1996). We also have jurisdiction over the denial of the stay of execution.

I

Woratzeck filed a petition seeking Executive Clemency on June 4, 1997. The five-person Board of Executive Clemency (Board) is responsible to make a recommendation to the Governor. After a hearing, the Board recommended against clemency by a four to one vote.

Woratzeck brought this action in the district court pursuant to 42 U.S.C. § 1983, contending that his due process rights were violated. He requested, and was denied, a motion for a temporary restraining order, a stay of execution, and a declaratory judgment.

Woratzeck asserts that the involvement of Robert C. Brown, his former counsel on an appeal, and Dwight Callahan, his former counsel in his burglary trial, in the clemency proceedings violated his Due Process rights. Both are now members of the Pinal County Attorney's office, which is the prosecuting authority in Woratzeck's case. According to Woratzeck, Brown prepared the brief submitted to the Board, and helped prepare witnesses and exhibits to oppose Woratzeck's request for clemency at the hearing. Woratzeck also alleges that Callahan assisted Brown in preparation for the hearing. While Woratzeck does not allege that either Brown or Callahan revealed confidential communications to the Board, he asserts that the "presence of conflicted counsel is presumptively prejudicial."

He also asserts a second conflict. The State Attorney General is legal counsel to the Board. Yet, he alleges, the Office of the Attorney General has actively been involved on behalf of the prosecution.

The prosecution offered its own declarations, but no evidentiary hearing was held in the district court. Therefore, we accept the facts as alleged by Woratzeck.

II

We first must decide whether an action under 42 U.S.C. § 1983 is the proper vehicle for litigating this claim. The Sixth Circuit concluded that it was. Woodard v. Ohio Adult Parole Authority, 107 F.3d 1178, 1187 (6th Cir.1997) (Woodard ), pet. for cert. filed, 65 U.S.L.W. 3756 (May 6, 1997). However, the Supreme Court recently decided in Edwards v. Balisok, 520 U.S. 641, ----, 117 S.Ct. 1584, 1589, 137 L.Ed.2d 906 (1997) (Edwards ), that a "claim for declaratory relief and money damages ... that necessarily impl[ies] the invalidity of the punishment imposed is not cognizable under § 1983." We thus must consider whether Edwards prohibits Woratzeck from raising this claim under section 1983.

In Edwards, Balisok alleged that the procedures used in his disciplinary hearing violated his Fourteenth Amendment due process rights. He requested declaratory relief and monetary damages; however, he did not request restoration of his good-time credits. The district court denied his claim, but we reversed and held that a claim challenging only the procedures employed in the disciplinary hearing is available under section 1983. Id. at ---- - ----, 117 S.Ct. at 1586-87.

The Supreme Court unanimously reversed our decision. It cited Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (Heck ), and stated that our decision disregarded "the possibility, clearly envisioned by Heck, that the nature of the challenge to the procedures could be such as necessarily to imply the invalidity of the judgment." Edwards, 520 U.S. at ----, 117 S.Ct. at 1587. The Court then held that:

[t]he principal procedural defect complained of by respondent would, if established, necessarily imply the invalidity of the deprivation of his good-time credits.... This is an obvious procedural defect, and state and federal courts have reinstated good-time credits (absent a new hearing) when it is established.

Id. at ----, 117 S.Ct. at 1588. Since Balisok's requested relief would "imply the invalidity of the punishment imposed, [it] is not cognizable under § 1983." Id. at ----, 117 S.Ct. at 1589.

In our case, Woratzeck argues that the procedural defects in the clemency hearing denied him his Due Process rights. Our question after Edwards is whether the relief that Woratzeck seeks would "necessarily imply the invalidity of the punishment imposed." Id. While this is a very difficult question, we conclude that Edwards does not prohibit Woratzeck from raising his claim under section 1983. The relief that Woratzeck seeks--a new clemency hearing--would not "demonstrate[ ] the invalidity" of his death sentence. Rather, it would only provide him another clemency hearing. Unlike the requested relief in Edwards, which necessarily implied the invalidity of the revocation of his good-time credits, a second clemency hearing, by itself, would not invalidate his death sentence. Rather, it would merely provide the Board another chance to review his clemency claim. Since Woratzeck's requested relief would not "necessarily imply the invalidity of his conviction or sentence," Heck, 512 U.S. at 487, 114 S.Ct. at 2372, his suit is cognizable under section 1983.

III

Woratzeck argues that the district court erred by rejecting his claim that the involvement of his former counsel and the Attorney General in the clemency proceedings violated his procedural due process rights. He asserts that under Arizona law, a clemency hearing must be "a hearing in a substantial sense," McGee v. Arizona State Bd. of Pardons, 92 Ariz. 317, 376 P.2d 779, 781 (1962), and contends that Brown's, Callahan's, and the Attorney General's assistance in preparing for the clemency hearing violated this standard.

In Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (Olim ), the Supreme Court held that when a state's laws "place no substantive limitations on official discretion[, they] create no liberty interest entitled to protection under the Due Process Clause." Id. at 249, 103 S.Ct. at 1747. Arizona places no substantive limitations on official discretion over the ultimate decision to grant or deny clemency. See A.R.S. § 31-402(A) ("the board of executive clemency shall have exclusive power to pass upon and recommend reprives, commutations, paroles, and pardons"); A.R.S. § 31-443 ("[t]he governor, subject to any limitations provided by law, may grant reprieves, commutations and pardons, after conviction, for all offenses, except impeachment, upon conditions, restrictions and limitations he deems proper ") (emphasis added); State ex rel. Arizona State Bd. of Pardons & Paroles v. Superior Court of Maricopa County, 12 Ariz.App. 77, 467 P.2d 917, 920 (1970) ("while the Courts can compel to Board to act, the Court cannot compel the Board to act in any particular manner"); see also Woodard, 107 F.3d at 1178 (applying Olim to conclude that Ohio's clemency procedure vested "unfettered discretion" in the governor).

While the governor can grant clemency only when the Board makes such a recommendation, see A.R.S. § 31-402(A), neither the Board nor the governor have any "objective and defined" criteria which guides their decision. As the Court said in Olim: "If the decisionmaker is not 'required to base its decisions on objective and defined criteria,' but instead 'can deny the requested relief for any constitutionally permissible reason or for no reason at all,' the State has not created a constitutionally protected liberty interest." Olim, 461 U.S. at 249, 103 S.Ct. at 1747 (quoting Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 466-67, 101 S.Ct. 2460, 2465-66, 69 L.Ed.2d 158 (1981)) (citation omitted). Since no "objective and defined criteria" guide either the Board or the governor, we conclude that Arizona's clemency laws "create no liberty interest entitled to protection under the Due Process Clause." Olim, 461 U.S. at 249, 103 S.Ct. at 1747. Like the Sixth Circuit in Woodard, we do not decide if Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), affects Olim. If it does, it can only do so to Woratzeck's detriment.

IV

Even though Arizona's clemency laws do not create a new constitutionally protected liberty interest in clemency procedures, we must also consider whether Woratzeck's original interest in life and liberty imposes some constitutional requirements. We believe that Woodard is...