122 F.3d 18

Eugene Wallace PERRY, Plaintiff/Appellant,
v.
Randy MORGAN, Warden, Tucker Maximum Security Unit; K.L.
Wade, Tucker Mailroom Supervisor; Sam Heuer; John Doe;
Leroy Brownlee, as member of the Arkansas Post-Prison
Transfer Board; Mary Jean Bennett, as member of the
Arkansas Post-Prison Transfer Board; Charles Chastain, as
member of the Arkansas Post-Prison Transfer Board; Ermer
Pondexter, as member of the Arkansas Post-Prison Transfer
Board; James Stanley, as member of the Arkansas Post-Prison
Transfer Board; Deborah Suttlar, as member of the Arkansas
Post-Prison Transfer Board; Mike Huckabee, Governor of the
State of Arkansas, Defendants/Appellees.

No. 97-2930.

United States Court of Appeals,
Eighth Circuit.

Submitted July 16, 1997.
Decided July 30, 1997.
Order Denying Rehearing and Rehearing En Banc Aug. 4, 1997.

Craig Lambert, Little Rock, AR, for Plaintiff/Appellant.

Kelly Kristine Hill, Little Rock, AR, for Defendants/Appellees.

Before BOWMAN, WOLLMAN, and MURPHY, Circuit Judges.

PER CURIAM.

1

Eugene Wallace Perry is scheduled to be executed on August 6, 1997 for the 1980 murders of Kenneth Staton and his daughter, Suzanne Ware. Perry's two petitions for habeas corpus have previously been denied. 107 F.3d 665 (8th Cir.1997); 871 F.2d 1384 (8th Cir.), cert. denied, 493 U.S. 959, 110 S. Ct. 378, 107 L. Ed. 2d 363 (1989). Now before the court is an appeal from the dismissal of his action brought under 42 U.S.C. § 1983 seeking equitable and declaratory relief. Perry also asks for a stay of his execution pending this appeal. We affirm.

2

Perry alleges that his application for executive clemency has been tainted by reports that earlier this year he sought to obtain a book that apparently describes how to kill someone with your bare hands. Perry denies connection to the book and claims K.L. Wade and somebody else in the prison mailroom made it appear that he had requested the book from his attorney, Sam Heuer. Heuer denied involvement in the incident, but moved to withdraw as counsel for Perry after receiving a critical letter from warden Randy Morgan.

3

Perry contends he has a right under the due process clause of the fourteenth amendment to an unbiased consideration of his application for executive clemency, but that the reports linking him to the book tainted his application. He claims that Morgan, Wade, and an unknown employee of the mailroom (John Doe) created the impression that he sought the book, that this and Heuer's withdrawal affected the clemency proceeding before the Arkansas Post Prison Transfer Board (made up of Leroy Brownlee, Charles Chastain, Ermer Pondexter, August Pieroni, Fred Allen, and Railey Steele1), and that this would bias Governor Huckabee's ultimate decision. He seeks a declaration that the defendants violated his due process rights and relief in the form of a new hearing before unbiased decisionmakers and final determination on his application by the lieutenant governor or some other person unfamiliar with the allegedly false reports.2

4

The district court3 dismissed Perry's suit, holding that he has no constitutional right to an unbiased consideration of his clemency application. The Post Prison Transfer Board, which makes a non-binding recommendation to the governor on the clemency application, Ark.Code Ann. § 16-93-204 (Michie Supp.1995), then held a hearing to review Perry's application, and unanimously recommended denial. There is no indication in the record that the governor has yet decided whether or not to grant clemency.

5

Even if Perry were able to prove that there were false reports about the book, that such reports reached the decisionmakers, and that the reports affected their decision about clemency, he would not have made out a violation of his constitutional rights. The Arkansas clemency statute imposes no standards on what the board or the governor may consider in making their decisions. Ark.Code Ann. § 16-93-204. The statute calls for the board to investigate a clemency application and to make a recommendation to the governor, but the governor is not bound by that recommendation. Id. "When a commutation statute does not impose standards constraining the discretion of the board as to when clemency must be granted, the statute does not create a constitutional right or entitlement sufficient to invoke the Due Process Clause." Whitmore v. Gaines, 24 F.3d 1032, 1034 (8th Cir.1994) (discussing the Arkansas statute) (citing Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 466-67, 101 S. Ct. 2460, 2465-66, 69 L. Ed. 2d 158 (1981); Otey v. Hopkins, 5 F.3d 1125, 1128-29 n. 3 (8th Cir.1993)); see also Wainwright v. Brownlee, 103 F.3d 708, 709 (8th Cir.1997) (per curiam) (rejecting claim that due process rights were violated because clemency decision-makers were biased). The district court did not err in dismissing Perry's action.

6

The judgment is affirmed, and the motion for a stay of execution is denied.

7

ORDER DENYING PETITION FOR REHEARING AND SUGGESTION FOR

REHEARING EN BANC

Aug. 4, 1997

8

Appellant's suggestion for rehearing en banc has been considered by the court and is hereby denied. Appellant's motion for a stay of execution of a sentence of death is also denied.

9

Chief Judge Richard S. Arnold and Circuit Judge Morris S. Arnold would grant the suggestion and the motion for stay.

10

The petition for a rehearing by the panel is also denied.

1

We note some differences with the names in the caption of the case, but these names are those discussed by the parties as being members of the board

2

On July 25, 1997 Perry filed a second § 1983 case in which he argues that (1) the Post Prison Transfer Board violated his fourteenth amendment due process right to a full and fair consideration of his clemency application because it did not consider his actual innocence claim; (2) the board violated his right to equal protection under the fifth and fourteenth amendments because it considered his guilt, but not his innocence; and (3) the board unconstitutionally required him to sacrifice his fifth amendment privilege against self incrimination in order to assert his due process right to be considered for clemency. This case is now pending before the district court

3

The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas