Gardner v. Garner

FILED
United States Court of Appeals
Tenth Circuit
June 17, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
RONNIE LEE GARDNER,
Plaintiff-Appellant,
v. No. 10-4106
(D.C. No. 2:10-cv-00537-TC)
CURTIS GARNER, Chairman, (D. Utah)
Utah Board of Pardons and Parole;
CLARK A. HARMS, Vice-Chairman,
Utah Board of Pardons and Parole;
JESSE GALLEGOS, Member, Utah
Board of Pardons and Parole; IRIS E.
HEMENWAY, Member Pro Tempore,
Utah Board of Pardons and Parole;
DONALD E. BLANCHARD, Member
Pro Tempore, Utah Board of Pardons
and Parole; MARK L. SHURTLEFF,
Utah Attorney General,
Defendants-Appellees.
ORDER AND JUDGMENT *
*
Counsel for Mr. Gardner has informed the court that he stands on the
argument set out in the application for stay submitted in conjunction with this
appeal and will not be filing a separate appellate brief. Upon consideration of the
application and associated materials, this court has determined that oral argument
would not materially assist the determination of this appeal. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G). The case is therefore submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. Ap. P. 32.1 and
10th Cir. R. 32.1.
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.
Plaintiff Ronnie Lee Gardner is a death row inmate scheduled for execution
by the State of Utah on June 18, 2010. He brought this action in district court
under 42 U.S.C. § 1983 to challenge the procedural propriety of his clemency
proceeding before the Utah Board of Pardons and Parole (“Board”), which has
denied his application for commutation of sentence. In connection with this
§ 1983 action, Mr. Gardner also sought a stay of his execution. The district court
denied the stay without resolving the underlying § 1983 action. Mr. Gardner now
appeals that ruling and seeks a stay of execution pending appeal. We affirm the
district court’s order and deny a stay pending appeal as moot.
The complaint, filed prior to the hearing and resolution of his application
for commutation, formally set out six claims, though these fell into just three
substantive categories: (1) the clemency proceeding is tainted by a conflict of
interest, because the Utah Attorney General serves as legal advisor to the Board
while also representing the State in opposing the clemency application, violating
Mr. Gardner’s federal procedural due process and substantive due process rights
(claims one and two), as well as his state due process rights (claim three); (2) the
Board indicated that it would not consider a videotape offered by Mr. Gardner
containing statements from two witnesses, in violation of his federal procedural
due process and state due process rights (claims four and five); and (3) the Board
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has acted so as to deny Mr. Gardner meaningful representation by his federally
appointed counsel, violating his federal right to procedural due process (claim
six). The Board ultimately decided to allow admission of the videotape, mooting
claims four and five. Mr. Gardner’s application for a stay of execution therefore
rested on the due process objection advanced in claims one through three and the
objection regarding meaningful assistance of counsel in claim six.
I. Threshold Matters and Standard of Review
Before reaching the merits of this appeal, we note two threshold procedural
points. First, there is some question whether a § 1983 action is the proper vehicle
for bringing a procedural challenge to state clemency proceedings, or whether,
pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok,
520 U.S. 641 (1997), such an action under § 1983 should be deemed an improper
circumvention of habeas proceedings. Compare Woratzeck v. Arizona Board of
Executive Clemency, 117 F.3d 400, 402-03 (9th Cir. 1997) (upholding use of
§ 1983 for this purpose where, as here, the relief sought would not directly affect
capital sentence but only require state authority to consider clemency under
proper procedures), with Spivey v. State Bd. of Pardons & Paroles, 279 F.3d
1301, 1302-03 (11th Cir. 2002) (deeming use of § 1983 action in this context to
be mere incidental means to primary end of defeating orderly effectuation of
capital sentence and holding habeas to be proper, and hence exclusive, remedy).
This circuit has not definitively addressed the question. We did review on the
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merits a § 1983 action challenging clemency proceedings in Duvall v. Keating,
162 F.3d 1058 (10th Cir. 1998), just as the Supreme Court had recently done in
Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998), though in neither
case was the Heck issue expressly considered. In any event, we have held that the
application of Heck to a § 1983 action is not a matter of jurisdiction and hence
need not be resolved where the § 1983 claims may be resolved on the merits. See
Jiron v. City of Lakewood, 392 F.3d 410, 413 n.1 (10th Cir. 2004) (following
Okoro v. Bohman, 164 F.3d 1059, 1061 (7th Cir. 1999)). Particularly given the
exigency of this proceeding, we follow that course here.
Second, although the underlying § 1983 action has not been resolved, we
have jurisdiction to review the denial of Mr. Gardner’s application for a stay of
execution. The application is the functional equivalent of a motion to temporarily
restrain or preliminarily enjoin his execution, the denial of either of which would
be subject to appellate review given the exigent circumstances, Hamilton v. Jones,
472 F.3d 814, 815 (10th Cir. 2007); Duvall, 162 F.3d at 1062. Other courts as
well have heard similar appeals in just these circumstances without any concern
over fine formalistic distinctions regarding the label applied to the motion seeking
to forestall execution. See, e.g., Parker v. State Bd. of Pardons and Paroles,
275 F.3d 1032, 1033 (11th Cir. 2001) (appeal from denial of motion “for a
temporary restraining order (“TRO”), preliminary injunction, and/or stay of
execution” in action challenging propriety of clemency proceeding); Woratzeck,
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117 F.3d at 402 (appeal from denial of capital offender’s motion “for a temporary
restraining order (“TRO”) and stay of his execution”).
We review the district court’s order for an abuse of discretion. Hamilton,
472 F.3d at 815. To obtain a stay of his execution, Mr. Gardner had to satisfy all
of the traditional requirements for a stay, “including a showing of a significant
possibility of success on the merits” of his underlying claims. Id. (quotation
omitted). Where the claims are found to be without merit, we will affirm the
denial of the stay. See Duvall, 162 F.3d at 1062. That is the case here.
II. Merit of Underlying Challenge to Clemency Proceeding
There is no constitutional right to clemency proceedings. Duvall, 162 F.3d
at 1060 (citing Herrera v. Collins, 506 U.S. 390, 414 (1993)). But a state may
elect to provide such proceedings and, in that event, following “the [Supreme]
Court’s narrowest majority holding [in Ohio Adult Parole Authority v. Woodard,
523 U.S. 272 (1998)], we assume that some minimal level of procedural due
process applies.” Duvall, 162 F.3d at 1061. This “minimal application of the
Due Process Clause only ensures a death row prisoner [1] that he or she will
receive the clemency procedures explicitly set forth by state law, and [2] that the
procedure followed in rendering the clemency decision will not be wholly
arbitrary, capricious or based upon whim, for example, flipping a coin.” Id. at
1060. Further, “our review is limited to analyzing the procedures used during the
clemency proceedings and not the substantive merits of the clemency decision.”
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Id. Applying these standards, we conclude that Mr. Gardner has wholly failed to
demonstrate a cognizable challenge to the clemency proceedings in his case and,
therefore, is not entitled to a stay of execution.
A. Impartial Hearing – Conflict of Interest
As Mr. Gardner notes, “[o]ffenders are entitled to an impartial hearing
before the Board.” Utah Admin. R. 671-309-1. He claims that this procedural
entitlement was violated by a conflict of interest arising from the dual role played
by the office of the Utah Attorney General (“AG”) with respect to his clemency
proceedings. Specifically, he complains that while one attorney in the AG’s
office, Thomas Brunker, appeared before the Board in opposition to his petition
for commutation, another, Michelle Young, engaged in ex parte communications
with the Board, providing advice with respect to evidentiary and procedural
matters. 1
The allegations regarding Ms. Young’s contacts with the Board that are set
out in the complaint are fairly innocuous:
After the pre-hearing conference, Assistant Attorney General
Michelle Young consulted with [the] Board regarding the rules that
1
Mr. Gardner’s complaint also appears to object to the bald fact that the AG
provides legal representation for the Board as a general matter. But AGs and
United States Attorneys routinely provide legal representation for courts and
judicial officers, see, e.g., Smith v. U.S. Court of Appeals, 484 F.3d 1281, 1283
(10th Cir. 2007); Switzer v. Coan, 261 F.3d 985, 987 (10th Cir. 2001), without
creating due process problems regarding their prosecutorial activities in the same
jurisdictions. Surely no such problems arise in this regard under the far less
stringent due process standards applicable to clemency proceedings.
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would be applicable to commutation proceedings. Following this
ex parte communication, Ms. Young informed Plaintiff’s counsel of
the applicable rules. When Plaintiff asked the Board for clarification
of the rules, Michelle Young was the person who responded.
When Plaintiff asked the Board to reconsider its interim order
barring the consideration of videotaped statements, Ms. Young
responded to Plaintiff’s request.
Based on further ex parte communications with the Board,
Ms. Young expressed the Board’s desire for additional information
about Plaintiff’s request.
Complaint at 6. Were we reviewing a judicial proceeding, any ex parte
communications, even of the purely procedural sort described above, would of
course be a matter of concern. But, again, the minimal due process constraints on
clemency proceedings are far more limited. We must focus solely on the Board’s
compliance with its own rules and its avoidance of wholly arbitrary or capricious
action. Here, the very rule Mr. Gardner relies on does “not preclude [ex parte]
contact regarding procedural matters so long as such contact is not for the purpose
of influencing the decision of an individual Board Member on any particular case
or hearing.” Utah Admin. R. 671-309-1 (emphasis added). The allegations
quoted above do not demonstrate a violation of the Board’s rule. Nor do they
reflect action that could be characterized as wholly arbitrary or capricious. Thus
they do not provide the basis for an actionable due process claim.
We note, however, that in Mr. Gardner’s application for stay of execution,
he ascribed a more active role to Ms. Young: she assertedly “provided legal
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advice to the Board about what procedures to apply to Mr. Gardner’s petition and
what evidence should be considered. Ms. Young had an extensive role in
advising the Board regarding the rules that should be applied to Mr. Gardner’s
commutation proceedings.” 2 Application for a Stay of Execution at 6 (filed
June 14, 2010). But even this assertion fails to identify a single procedural or
evidentiary position taken by the Board as a result of Ms. Young’s advice, much
less how that position played a materially adverse role in the Board’s ultimate
decision. This point is especially salient in light of the Board’s eventual election
to admit the videotaped statements that were the focus of Mr. Gardner’s
pre-hearing evidentiary efforts.
In short, Mr. Gardner utterly fails to demonstrate any prejudice from the
asserted conflict to his right to an impartial hearing. At most he raises a
theoretical “appearance of impropriety”–a weak predicate for a due process claim
in this extra-judicial context. See Gilreath v. State Bd. of Pardons and Paroles,
273 F.3d 932, 934 (11th Cir. 2001) (emphasizing that “just an appearance of
impropriety would not violate the Federal Constitution’s due process clause in the
2
Ms. Young submitted an affidavit in the district court that basically just
confirmed the broad assertions made in Mr. Gardner’s application for stay: she
“advised the Board regarding applicable statutes, Board rules, and case law . . .
limited to procedural matters, such as what materials the Board may consider
when determining whether to grant a hearing and/or whether to grant
commutation.” Declaration of Michelle Young at 2. She added that she “never
discussed substantive matters such as whether Mr. Gardner should be afforded a
commutation hearing or whether Mr. Gardner’s commutation petition should be
granted or denied.” Id.-8-
context of a clemency proceeding”). And even that appearance of impropriety is
greatly attenuated by the fact that the AG set up an internal ethical screen
between lawyers providing advice to the Board and lawyers handling the
adversarial aspect of Mr. Gardner’s commutation proceedings. Mr. Gardner
complains that it appears this screen was not erected until a week after he filed
his petition for commutation (though before the AG filed its response to the
petition), but the alleged contacts between Ms. Young and the Board that he
points to all occurred after that, following the pre-hearing conference. 3 Moreover,
Ms. Young averred that she had been alerted about Mr. Gardner’s imminent
commutation application the day before it was even filed and, as a result, had
thereafter “acted as if a formal conflict screen had been established.” Declaration
of Michelle Young at 2-3. Under the circumstances, we see no basis for an
3
A petition for commutation must be filed no later than seven days after
issuance of the warrant of execution. Utah Admin. Code R. 671-312-2(1).
It must include “a statement of reasons or grounds” supporting clemency, id.,R. 671-312-2(4)(b), and “copies of all written evidence upon which petitioner
intends to rely at the hearing along with the names of all witnesses petitioner
intends to call and a summary of their anticipated testimony,” id.,R. 671-312-2(4)(c). Within seven days of receiving the petition, the State,
through the AG, must file a response with its own designation of witnesses and
testimony. Id., R. 671-312-2(7). The Board then holds “a pre-hearing conference
to identify and set the witnesses to be called, clarify the issues to be addressed,
and take any other action it considers necessary and appropriate to control and
direct the proceedings.” Id., R. 671-312-2(8). The hearing itself is
nonadversarial; cross-examination is not permitted, though “Board may ask
questions freely of any witness, the petitioner, the petitioner’s attorney, or the
State’s attorney.” Id., R. 671-312-2(10).
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actionable due process claim under the minimal constitutional standard applicable
in the clemency context.
B. Denial of Meaningful Representation of Counsel
The primary basis for Mr. Gardner’s initial claim that the Board had acted
in a way that undermined the effectiveness of his counsel derived from the
anticipated exclusion of the videotaped witness statements. Thus, when the Board
ultimately elected to admit those statements, this claim lost much of its factual
substance. In his application for stay of execution, Mr. Gardner was left to argue
in rather vague and perfunctory terms that the belated notice that he would be
allowed to offer the statements, the day before the clemency hearing, interfered
with counsel’s ability to prepare for the hearing. Given counsel’s familiarity with
the evidence, which he developed, this is a decidedly weak factual premise for a
claim regarding ineffective representation. 4 In addition, and in any event,
relevant legal principles foreclose an actionable challenge to his clemency
proceeding premised on the inadequacy of his legal representation. 5
4
We would also point out that although the time periods allotted for the
preparation of a clemency case following issuance of the order of execution are
fairly short, the undeniable reality of the situation is that eventual recourse to this
procedure is a fact on the procedural horizon long before the execution process
commences.
5
We note that the statutes and rules governing Utah’s clemency procedures
do not expressly grant a right to counsel, nor have we been made aware of any
other state authority recognizing such a right. But Mr. Gardner’s federal habeas
counsel are authorized to represent him in clemency matters pursuant to 18 U.S.C.
(continued...)
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The constitutional right to the effective assistance of counsel does not
extend beyond direct appeal, even if state law provides for the appointment of
counsel in post-conviction proceedings. Thomas v. Gibson, 218 F.3d 1213, 1222
(10th Cir. 2000) (following Coleman v. Thompson, 501 U.S. 722, 752 (1991)).
The right is not extended beyond its limited confines, under the principle of a
“state-created interest,” when by statute or rule prisoners must be afforded
representation in post-conviction matters. The Eighth Circuit cogently explained
why in Simpson v. Norris, 490 F.3d 1029 (8th Cir. 2007). Drawing on the
Supreme Court’s holding in Pennsylvania v. Finley, 481 U.S. 551 (1987), that
counsel need not, as a matter of due process, follow Anders 6 procedures when
withdrawing from post-conviction representation, the Eighth Circuit explained:
The [Finley] Court held that the Anders requirements were
based on an indigent defendant’s . . . right to counsel in a first appeal
and that those requirements did not apply to the defendant since there
was no constitutional right to counsel in a collateral attack on a
conviction. The Court rejected the contention that a “right to
counsel” created by a state gives rise to a constitutional guarantee:
“[I]t is the source of the right to a lawyer’s assistance, combined
with the nature of the proceeding, that controls the constitutional
question. In this case, respondent’s access to a lawyer is the result of
the State’s decision, not the command of the United States
Constitution.” Finley, 481 U.S. at 555-56, 107 S.Ct. 1990. The
Court further explained that “the State has made a valid choice to
give prisoners the assistance of counsel [in post-conviction
proceedings] without requiring the full panoply of procedural
5
(...continued)
§ 3599(a)(2), (e), as construed in Harbison v. Bell, 129 S. Ct. 1481 (2009).
6
Anders v. California, 386 U.S. 738 (1967).
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protections that the Constitution requires be given to defendants who
are in a fundamentally different position-at trial and on first appeal
as of right.” Id. at 559, 107 S.Ct. 1990. The Supreme Court has thus
left little doubt as to its view that a state’s decision to grant a right
to counsel in post-conviction proceedings does not give rise to a due
process claim if counsel performs deficiently.
Simpson, 490 F.3d at 1033-34 (emphasis added).
Against this background, we cannot say that the availability of federally
funded habeas counsel to represent a capital offender in clemency proceedings
affords a constitutional platform from which to launch a collateral due process
challenge to such proceedings on the basis of the effectiveness of counsel’s
representation. 7 Nor do the rules governing Board procedures provide a right to
counsel that might underwrite such a challenge. See supra note 5. Thus, the legal
foundation for Mr. Gardner’s claim here is as deficient as its factual basis.
C. Substantive Due Process and State Constitutional Provisions
Mr. Gardner has not demonstrated a concrete material difference, under the
circumstances of this case, between the federal and state constitutional provisions
summarily invoked in his complaint. Given that omission, the Utah courts would
not proceed beyond the federal analysis–under which his claims fail–in resolving
his pendent state constitutional claims. See State v. Kohl, 999 P.2d 7, 12 n.3
7
The authorities discussed above address the inapplicability of ineffective
assistance principles in post-conviction proceedings, rather than in clemency
proceedings per se. But we see no basis for holding that the latter–which involve
discretionary executive acts rather than the judicial resolution of legal objections,
Duvall, 162 F.3d at 1061–implicate any greater, rather than lesser, constitutional
basis for recognition of claims relating to the effective assistance of counsel.
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(Utah 2000); Color Country Mgmt. v. Labor Comm’n, 38 P.3d 969, 974
(Utah App. 2001). Nor will we. 8 He has also not explained how substantive due
process principles would even apply to, much less bolster, the clearly procedural
objections raised in this action.
III. Conclusion
There is no merit to the claims asserted in the underlying § 1983 action
challenging the procedures followed in Mr. Gardner’s state clemency proceeding.
In light of that fundamental deficiency, Mr. Gardner’s associated application for a
stay of his execution was also meritless and the district court did not abuse its
discretion in denying the application.
Accordingly, we AFFIRM the district court’s order denying a stay of
execution. 9 In light of that disposition we DENY as moot Mr. Gardner’s motion
for a stay of execution pending resolution of this appeal. The mandate shall issue
forthwith.
ENTERED FOR THE COURT
PER CURIAM
8
We also note in this regard that Mr. Gardner had the option to challenge the
procedural propriety of the clemency proceedings in the Utah courts by way of a
state habeas action, see Preece v. House, 886 P.2d 508, 512 (Utah 1994), but did
not pursue this available state remedy.
9
Pursuant to Fed. R. App. P. 35, the panel circulated this decision to the
active judges of the court for sua sponte consideration of whether en banc review
was necessary. See Hamilton, 472 F.3d at 815 n.1. No active judge called for a
poll.
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