Harold Lamont Otey v. Frank X. Hopkins, Warden of the Nebraska Penal and Correctional Complex , 5 F.3d 1125 ( 1994 )

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. § 2254 to consider his claims, and dismiss.

I. BACKGROUND

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. 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. § 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. § 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 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 Ótey’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.

II. DISCUSSION

A. Otey’s Claims

Otey brought his petition in federal court pursuant to 28 U.S.C. § 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 file 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.

B. 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 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 Pro-’ cess 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 commutation from a capital sentence.⁵

Otey argued that strict scrutiny should apply to his equal protection claim because of his fundamental right to life, to a genuine opportunity for clemency, to petition the gov-eminent for a redress of grievances in the same manner as other applicants for clemency, and to a recommendation at his clemency hearing from the Board of Parole. In response, the court stated:

The right of Harold Lamont Otey to life has been removed by the judicial system, which caused him to be tried with all process due him and sentenced to death appropriately. The opportunity for clemency has never, so far as I can tell, been held to be a fundamental right. The right to petition the government, as such, is a fundamental right, but it is a right for a redress of grievances, whereas a clemency hearing is not a petition for redress of grievances, but a request for mercy. Any right that the petitioner had for the exercise of the advisory discretion vested in the Board of Parole by the Nebraska Constitution arose only from the Nebraska Constitution and cannot be classified as a fundamental right.

Otey v. Hopkins, Mem. and Order on Resp’t’s Second Mot. for Summ. J. at 12 (D.Neb. Dec. 31, 1992) (No. 4:CV92-3239). Because no fundamental rights were involved, the court held that the rational relationship standard of review was appropriate.

The court noted there was a rational basis for Nebraska to create procedures for use in reviewing applications for clemency in capital cases, and only Otey and one other person were members of that classification. Otey had in fact been treated more leniently than that other member; Otey was granted a two-day hearing. Additionally, the court stated that any differences in the treatment of Otey’s request and requests from persons under a sentence of life imprisonment were not of the magnitude which would result in invidious discrimination. Accordingly, the district court held that Otey’s equal protection rights were not violated.

C. Jurisdiction

The district court’s memoranda are thoughtful and well-reasoned. However, we must first address Nebraska’s assertion that we have no subject matter jurisdiction under § 2254. We hold Otey’s claims cannot be raised in a petition for a writ of habeas corpus; there is no subject matter jurisdiction.

The jurisdiction granted federal courts under § 2254 to review a state prisoner’s claim is limited. Federal courts have jurisdiction to. “entertain an application for a writ of habeas corpus ... only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254; see Coleman v. Thompson, — U.S. —, —, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). “The court does not review a judgment, but the lawfulness of the petitioner’s custody....” Coleman, — U.S. at —, 111 S.Ct. at 2554; see also Hill v. Wyrick, 570 F.2d 748, 750 (8th Cir.) (holding the petitioner must allege facts in the petition indicating, that the custody is illegal), cert. denied, 436 U.S. 921, 98 S.Ct. 2272, 56 L.Ed.2d 764 (1978). The central focus of the writ of habeas corpus is to provide a remedy for prisoners who are challenging the fact or duration of their physical confinement and are seeking immediate release or a speedier release. See Preiser v. Rodriguez, 411 U.S. 475, 498, 93 S.Ct. 1827, 1840, 36 L.Ed.2d 439 (1973).

When a prisoner directly attacks the validity of his sentence, the proper vehicle is a habeas corpus action. See id. at 486, 93 S.Ct. at 1834 (stating traditional scope of petitions for habeas corpus is that petitioner is being unlawfully subjected to physical restraint and citing examples); Offet v. Solem, 823 F.2d 1256, 1257 (8th Cir.1987) (stating that to the extent a petitioner is directly attacking the length of confinement, the proper vehicle for a claim is a petition for a writ of habeas corpus). To determine whether Otey properly brought his claims under § 2254 as a petition for a writ of habeas corpus, then, we must consider what Otey is alleging, what relief he is seeking, and whether .that relief is available through a petition for a writ of habeas corpus.

Here, Otey is not directly challenging whether he was lawfully convicted of murder or whether his sentence of death is an appropriate punishment for that crime. He admits he has exhausted every possible avenue to challenge his conviction and sentence in both the state and federal courts, and admits his conviction and sentence are lawful. He is not claiming that he is entitled to clemency or that the Board should have granted his request. Instead, he is challenging only the process by which the Board considered his request for clemency, and the Board’s constituency. Otey is not seeking from this court relief in the form of an order to commute his sentence, a kind of relief that we clearly would have no authority to give. In frankness, Otey stated at oral argument that he claims only an entitlement "to redress in the form of an order from this court for the Board to conduct another clemency hearing in a different manner. Presumably, Otey does not want the attorney general’s office appearing for the state, and he does want a Chinese wall between the attorney general and his assistants who have been prosecuting him for sixteen years. He does not seek recusal by the attorney general.

Issuance of such an order would not give Otey commutation; it would give him only an opportunity to plead again for mercy. If Otey was granted that opportunity, the Board would not be compelled to grant clemency. This is not the stuff of redress which can be sought under § 2254.

Otey argues that his claims were correctly brought under habeas, and has referred to eases • he claims supports this argument. These cases, however, demonstrate only that an executive forum can be reviewed in habe-as when the petitioner is challenging the fact or duration of his custody and is seeking relief from that custody. See Ford v. Wainwrigkt, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (challenging sentence of death for allegedly insane person and seeking relief from sentence on ground that it was unconstitutional to execute an insane person); Jean v. Nelson, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (challenging attorney general’s order to detain undocumented aliens and seeking relief from the order); Preiser, 411 U.S. 475, 93 S.Ct. 1827 (challenging lawfulness of incarceration and seeking grant of good-time credit, which would result in immediate release on ground that deprivation of good-time credit was unconstitutional); Parton v. Armontrout, 983 F.2d 881 (8th Cir.1993) (challenging lawfulness of incarceration and seeking grant of parole on ground that state unlawfully can-celled presumptive release date); Burnside v. White, 760 F.2d 217 (8th Cir.) (challenging lawfulness of custody and seeking immediate release on ground that parole was unconstitutionally denied because of ex post facto law), cert. denied, 474 U.S. 1022, 106 S.Ct. 576, 88 L.Ed.2d 559 (1985). The cases Otey has cited do not support his argument that we have jurisdiction. They further convince us that habeas is not the vehicle; his federal constitutional claims are collateral to his custody and sentence.

Otey also argues that under Preiser, he is compelled to bring his claims in habeas, and is barred from bringing them under 42 U.S.C. § 1983. We disagree. In Preiser/ the Supreme Court held that a state prisoner challenging the fact or duration of his physical imprisonment and seeking a determination that he is entitled to immediate or speedier release has a federal remedy only through a writ of habeas corpus, and cannot bring that claim under § 1983. Preiser, 411 U.S. at 500, 93 S.Ct. at 1841. Preiser does not preclude Otey from bringing his claim in a § 1983 action because he admits his sentence is lawful and is not seeking a determination that he has an entitlement to commutation. See Smith v. Snow, 722 F.2d 630 (11th Cir.1983) (addressing § 1983 claim brought by person under a capital sentence that the Board of Pardons and Paroles disposed of his application for clemency in an-unconstitutional manner); see also Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981) (addressing claim brought under § 1983 that, the failure to provide plaintiff with a statement of reasons for denying commutation violated his due process rights and seeking a declaratory judgment); Wolff v. McDonnell, 418 U.S. 539, 554-55, 94 S.Ct. 2963, 2973-74, 41 L.Ed.2d 935 (1974) (stating claim that procedures for revoking good-time credits were unconstitutional and seeking damages as well as establishment of appropriate procedures may be brought under § 1983); Offet v. Solem, 823 F.2d 1256 (8th Cir.1987) (holding claim alleging deprivation of good-time credits and seeking declaratory relief and damages was properly brought under § 1983); Walker v. Prisoner Review Bd., 694 F.2d 499, 501 (7th Cir.1982) (holding claim alleging plaintiff- was denied parole in unconstitutional manner was properly brought under § 1983 because the plaintiff was seeking only an injunction requiring rehearing in a constitutional manner); Williams v. Ward, 556 F.2d 1143, 1150-51 (2d Cir.) (distinguishing Preiser and allowing challenge to parole procedures under § 1983 because redress sought would only allow rehearing and question of release would still be within discretion of parole board), cert. dismissed, 434 U.S. 944, 98 S.Ct. 469, 54 L.Ed.2d 323 (1977); Haymes v. Regan, 525 F.2d 540, 542 (2d Cir.1975) (stating because “it is the manner of parole decision-making, not its outcome, that is challenged, appellant does not present a complaint of the sort in Preiser v. Rodriguez ... for which habeas corpus would be appropriate”).

We have reviewed Otey’s claims and the district court’s analysis of those claims on the merits. We do not decide this case on the merits; however, if this case had been properly before us for review, we would affirm the, district court.

III. CONCLUSION

Otey’s claims that the Board violated his constitutional rights in the procedures by which it considered his request for clemency are not cognizable in a petition for a writ of habeas corpus. The federal courts do not have subject matter jurisdiction over these claims under 28 U.S.C. § 2254. We order this case dismissed.

1 . The duties of the Board are, inter alia, to exercise its pardon authority, make its own rules for operation, and ‘‘[c]onsult with the Board of Parole concerning applications for the exercise of pardon authority." See Neb.Rev.Stat. § 83-1,127 (Reissue 1987). The Board is not required to hold a hearing to consider a request for commutation, and no statutory guidelines exist for hearings other than a requirement that if it does hold a hearing, it shall be informal. See Neb. Rev.Stat. § 83-1,129(2) (Reissue 1987).

2 . At the June 28-29 hearing, counsel for Otey objected to the assistant attorneys general appearing on behalf of the state. He stated that he did not object to anything they would say or do, but just to the position that they were counsel for the state. In response to that objection, the governor replied that the Board had the capacity to ferret out the appropriate value of any evidence and would not be unduly prejudiced by anything presented. Counsel for Otey then withdrew his objection. Tr., Neb.Bd. of Pardons Meeting at 97-98 (June 28-29, 1991).

3 . Otey claims that Dumschat is distinguishable and has no application to his case because the petitioner in that case was seeking an explanation of the board’s reasons for denying commutation, while Otey is seeking a different procedure. In holding that the Due Process Clause was not implicated, the Supreme Court explained that the standardless clemency statutes did not create a protectable interest in anything other than the right to request clemency. See Dumschat, 452 U.S. at 467, 101 S.Ct. at 2465.

The Nebraska Supreme Court; when discussing whether the Nebraska Constitution or clemency statutes created any substantive rights, stated:

[T]here are no provisions in Nebraska’s Constitution or in its statutes creating a liberty interest in commutation hearings other than the right to file an application for commutation. ... There are no 'substantive predicates’ which limit the Board of Pardons' discretion in granting commutations, i.e., no specific criteria which an applicant must meet to earn a commutation from the Board of Pardons, no conditions which must first be met, no specific conduct which the applicant must have avoided, no guidelines of any kind which must be followed by the Board. In short, the Nebraska Board of Pardons has the unfettered discretion to grant or deny a commutation of a lawfully imposed sentence for any reason or for no reason at all.

A review of Nebraska's Constitution, statutes, and procedures reveals that no right has been conferred upon Otey beyond the right to seek a commutation. He was afforded this right. Having followed its own procedures in granting him a hearing, having consulted with the Board of Parole, and having considered Otey’s application, the Board of Pardons fulfilled any obligation it had to Otey.

Otey v. State, 240 Neb. 813, 485 N.W.2d 153, 166 (1992).

We recognize that the Nebraska Supreme Court did not decide the case on this ground, and thus this statement is dicta. Although not binding, it comes from the highest court in that state and confirms our own conclusions. Like the clemency statute at issue in Dumschat, the Nebraska clemency statute also is standardless. Otey had no state-created right other than the right to ask for mercy. As in Dumschat, this does not create a protectable interest in clemency. It also does not create a protectable interest in the manner in which the Board receives his request or in having unbiased decisionmakers on the Board. See Smith v. Snow, 722 F.2d 630, 631-32 (11th Cir.1983) (stating that because the Board of Pardons’ power was completely discretionary, Dumschat controlled and due process did not attach to the manner in which commutation to a life sentence was considered). Due process never attached to the Nebraska clemency proceedings. Otey’s distinction between Dum-schat and his own case is a distinction without a difference.

4 . Otey claims that the Board's consideration of his request for clemency is the "third tier" of review in the criminal process which was created by the Nebraska statutes, and that due process must attach to it just as it attaches to the first tier before the jury and the second tier on review before the Nebraska Supreme Court. The case to which Otey cites, however. Rust v. Hopkins, 984 F.2d 1486 (8th Cir.), cert denied, — U.S. —, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993), holds merely that Nebraska has two tiers of review. Otey’s argument rests on the assumption that when Nebraska enacted its clemency statutes, it created a mandatory third tier, of review in the criminal process. We do not interpret the Nebraska Constitution or statutes as creating this third tier. Instead, Nebraska simply affords a defendant under a judicially valid sentence the opportunity to ask for mercy from the executive branch. We also believe the Nebraska Supreme Court would interpret the state statutes and constitution in this manner. See Otey v. State, 485 N.W.2d at 166 (stating that no right was conferred other than the right to seek commutation).

Otey also claims that his substantive due process rights were violated, and complains that the district court did not address this claim. He argues that even if no liberty interests were involved, the Board acted arbitrarily and capriciously. The cases which Otey cites as support for this claim, however, are inapposite. See Monroe v. Thigpen, 932 F.2d 1437 (11th Cir.1991) (addressing claim that decisions regarding parole were made on knowingly false information); Block v. Potter, 631 F.2d 233 (3d Cir.1980) (addressing claim that parole decision was based on impermissible grounds). No fundamental right is involved here, and Otey has provided no support for his claim that the attorney general's actions were arbitrary and capricious.

5 . At the June 6 meeting to establish procedures, Otey’s counsel recognized that no procedure had yet been established for hearings regarding clemency requests, stating that he requested procedure to be established for capital cases. Tr., Neb.Bd. of Pardons Meeting (June 6, 1991). See also Otey v. State, 485 N.W.2d at 159 ("In a May 24, 1991, letter to Governor Nelson, Otey’s attorney, Victor Covalt, stated in part, T would be happy to meet with you or any of your staff at any time to discuss Mr. Otey or the Pardons Board procedure in this unusual case.’ ") (emphasis in original).