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Kirt Douglas WAINWRIGHT, Appellant, v. Leroy BROWNLEE, Member of The Arkansas Post-Prison Transfer Board; August Pieroni, Member of The Arkansas Post-Prison Transfer Board; Charles Chastain, Member of The Arkansas Post-Prison Transfer Board; Ermer Pondexter, Member of The Arkansas Post-Prison Transfer Board; Fred Allen, Member of The Arkansas Post-Prison Transfer Board; Railey Steele, Member of The Arkansas Post-Prison Transfer Board; Larry Norris, Director, Arkansas Department of Correction; Mike Huckabee, Governor of Arkansas, Appellees; Kirt Douglas WAINWRIGHT, Appellant, v. Mike HUCKABEE, Governor of Arkansas; Olan Reeves; Larry Norris, Director, Arkansas Department of Correction, Appellees

United States Court of Appeals for the Eighth Circuit1997-01-08No. No. 97-1065
103 F.3d 708

Summary

Holding. The court affirmed the district court's dismissal of both civil rights actions, holding that clemency statutes create no constitutionally protected interest and that decision-makers in clemency matters need not be unbiased or predisposed against a petitioner.

Kirt Wainwright, facing execution, filed two civil rights lawsuits two days before his scheduled death. In the first suit, he claimed the Post-Prison Transfer Board violated his constitutional rights by refusing to consider his clemency request on the merits because his habeas remedies were not exhausted. In the second suit, he alleged that the Governor and his clemency assistant had conflicts of interest and that the Governor had predetermined the decision, violating his equal protection, due process, and Eighth Amendment rights. The district court consolidated both cases and dismissed them with prejudice.

The appellate court affirmed the dismissal, applying established circuit precedent holding that clemency statutes do not create constitutionally protected interests or impose standards constraining the discretion of clemency decision-makers. The court found that there is no constitutional right to have clemency requests considered free from bias or predisposition, nor any protected interest in how a clemency request is received or decided. Because no substantial ground for relief existed, the court also denied Wainwright's motion to stay his execution.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether clemency statutes create a constitutional right or protected interest
  • Whether bias or predisposition in clemency decisions violates due process or equal protection
  • Whether a prisoner has a constitutional right to fair consideration of a clemency request

Procedural posture

The appellant appealed the district court's consolidated dismissal of two civil rights complaints filed challenging the Post-Prison Transfer Board's and Governor's refusal to grant clemency.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM.

Two days before his scheduled execution for killing a convenience store clerk in Arkansas, Kirt Wainwright filed two civil rights lawsuits to delay his death. In the first action, Wainwright asserts his constitutional rights were violated on December 26, 1996 when the Post-Prison Transfer Board declined to recommend clemency without considering his. case on the merits because Wainwright had not yet exhausted his habeas remedies in the courts. On January 2, 1997, however, we decided against Wainwright in the habeas proceedings the Board mentioned. Wainwright v. Norris, No. 96-8168 (8th Cir. Jan. 2, 1997) (order denying motion for authorization to file second habeas petition); Wainwright v. Norris, No. 94-3525 (8th Cir. Jan. 2, 1997) (order denying motion to recall mandate). We see nothing in the Board’s ruling foreclosing consideration of the merits of Wainwright’s request for mercy now, when the request is truly Wainwright’s last chance. In the second action, Wainwright asserts his equal protection, due process, and Eighth Amendment rights have been violated because the Governor of Arkansas and his executive clemency assistant have actual conflicts of interest. Wainwright also asserts he was denied his due process right to be considered for executive clemency because the Governor allegedly had decided in November that he would not commute Wainwright’s death sentence. Contrary to Wainwright’s assertion, on December9, in declining to recuse himself from deciding Wainwright’s fate, the Governor wrote Wainwright’s attorney that he would decide the case “fairly and impartially as [he was] obligated to do.” Plaintiff’s Complaint Exhibit 3, Wainwright v. Huckabee, No. LR-C-97-12 (E.D.Ark. Jan. 6, 1997). The district court consolidated the lawsuits and dismissed them with prejudice. Wainwright v. Brownlee, No. LR-C-97-11 (E.D.Ark. Jan. 7, 1997). Wainwright appeals.

Under the established law of this circuit, Wainwright’s civil rights claims fail. See Whitmore v. Gaines, 24 F.3d 1032, 1034 (8th Cir.1994) (holding Arkansas statute does not impose standards constraining discretion about granting clemency, and thus does not create a constitutional right and invoke the Due Process Clause); Pickens v. Tucker, 851 F.Supp. 363, 365 (E.D.Ark.) (rejecting civil rights claim that clemency decision by biased Governor violates due process or equal protection), affd, 23 F.3d 1477 (8th Cir.1994) (en banc); see also Joubert v. Nebraska Bd. of Pardons, 87 F.3d 966, 969 (8th Cir.) (holding there is no constitutionally protected interest in how the Nebraska Board of Pardons receives a clemency request or in having unbiased decisionmakers on the Board; right to consideration of clemency not violated when decisionmaker is predisposed), cert. denied, — U.S.-, 117 S.Ct. 1, 135 L.Ed.2d 1097 (1996); Otey v. Stenberg, 34 F.3d 635, 637-39 (8th Cir.1994) (holding no procedural or fundamental constitutional right creates a protected interest in standardless clemency statute; absent a constitutionally protected interest, .clemency statute only provides a state-created right to ask, for mercy); Otey v. Hopkins, 5 F.3d 1125, 1128-29 n. 3 (8th Cir.1993) (same), cert. denied, — U.S.-, 114 S.Ct. 2768,129 L.Ed.2d 881 (1994).

Thus, the questions presented in this appeal do not require further consideration and we summarily affirm the district court’s dis missal of the lawsuits. See 8th Cir. R. 47A(a). In doing so, we commend the district court for its prompt and well-reasoned resolution of the issues. Last, because there is not a substantial ground for granting relief, we deny Wainwright’s motion for a stay of execution. See Delo v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990) (per curiam).

concurrence opinion

HENLEY, Senior Circuit Judge,

concurring.

I concur in the court’s opinion. My concurrence, however, is with some misgiving. We rely in part on Pickens v. Tucker, 851 F.Supp. 363 (E.DArk.), affd, 23 F.3d 1477 (8th Cir.1994) (en banc). But in that affirmance, 23 F.3d at 1478, Circuit Judge Morris Sheppard Arnold, joined by Chief Judge Richard S. Arnold, Judge McMillian and Judge Wollman, would have remanded for a determination of the neutrality of then Governor Tucker.

We rely as well on Otey v. Stenberg, 34 F.3d 635 (8th Cir.1994), in which Senior Circuit Judge John R. Gibson dissented raising serious questions about fundamental fairness or bias in clemency proceedings.

Thus, while I accept the Governor’s assurance that he would decide the case impartially, as indicated I am troubled by the state of the law in this field and look forward to possible changes.