Richard T. Walker v. Gov. Ben Nelson ( 1995 )

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94-3662
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Richard T. Walker, John K. Hake, *
*
Plaintiffs-Appellants; *
*
Joseph T. Salazar, *
*
Plaintiff; *
* Appeal from the United States
v. * District Court for the
* District of Nebraska
Governor Ben Nelson; Harold W. *
Clarke, Department of * [UNPUBLISHED]
Corrections; Gary Grammer, *
Hastings Corrections; and *
Donald Stenberg, Attorney *
General; *
*
Defendants-Appellees. *
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Submitted: November 16, 1995
Filed: December 1, 1995
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Before HANSEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
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PER CURIAM.
Richard T. Walker and John K. Hake appeal from a judgment rejecting
their equal protection and procedural due process challenges to a Nebraska
commutation policy which treats persons convicted of second degree murder
differently from those convicted of first degree murder. They appeal only
the equal protection
ruling of the district court.1 We affirm.
Both Walker and Hake were convicted of second degree murder some
thirty years ago and received sentences of ten years to life. Both have
been paroled several times but have been returned to custody because of
parole violations; Walker is currently on parole again. Each has been
denied commutation by the Nebraska Pardons Board at least twice. They
allege that these denials violated their constitutional rights.
Under Nebraska law, parole eligibility is computed based on an
inmate's minimum sentence, and a mandatory release date is calculated based
on the inmate's maximum sentence adjusted for good time. This results in
differing consequences for first and second degree murderers.
Second degree murderers sentenced to ten years to life are eligible
for parole at some point, but they never receive a mandatory discharge date
because good time cannot be subtracted from a term of life. Second degree
murderers may seek a fixed maximum term by applying for commutation of
their sentences. If successful, they would receive a mandatory discharge
date. At least thirty-nine applications for commutation were made by
second degree murderers between January 1980 and March 1993, but the
pardons board granted none. It appears that most second degree murderers
are eventually discharged from custody voluntarily after several successful
years on parole. If a second degree murderer without a commuted sentence
is not discharged from parole, however, he must serve the entire life term.
1
The Honorable Warren K. Urbom, Senior United States
District Judge for the District of Nebraska.
Because plaintiff Joseph Salazar presented no evidence to
the district court that he had ever applied for commutation of
his sentence, he was dismissed as a party. He did not appeal.
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First degree murderers in Nebraska are sentenced either to death or
to life in prison, called life to life. Those sentenced to life to life
have no minimum term so they are never eligible for parole unless they
receive a commutation. The pardons board granted 18 of 113 commutation
applications from first degree murderers between January 1980 and March
1993. When it has granted an application for commutation, the board has
given not only a minimum sentence, making parole possible, but also a
maximum term (e.g. 35-60 years) which provides a mandatory discharge date.
Walker and Hake brought this action against certain Nebraska
officials who play a role in commutation, alleging that the denial of
commutation to all second degree murderers, but not to all first degree
murderers, was a violation of their equal protection rights under the
Fourteenth Amendment. Following a bench trial, the district court found
that first and second degree murderers serving life sentences in Nebraska
are not similarly situated. A necessary element of their equal protection
claim was therefore missing. City of Cleburne, Texas v. Cleburne Living
Center, 473 U.S. 432, 439 (1985).
After a thorough review of the record, we conclude that the findings
of the district court were not clearly erroneous and that it correctly
determined there was no equal protection violation on the facts of this
case. We therefore affirm the judgment without further discussion. See
8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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