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13-10589 BIO (1)

13-10589 BIO (1)

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Published by: markberman on Jun 18, 2014
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12/14/2014

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IN THE SUPREME COURT OF THE UNITED STATES
JOHN E. WINFIELD, ) ) Petitioner, ) ) No. 13-10589 v. ) 13A1249 ) TROY STEELE, ) Warden, Potosi Correctional Center, et al., ) ) Respondents. )
SUGGESTIONS IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI AND APPLICATION FOR STAY OF EXECUTION
Winfield requests a writ of certiorari and a stay of execution while the Court reviews his challenge to access to clemency. Winfield has not shown there is an important federal question that has not been, but should be, decided by this Court. Supreme Court Rule 10(a). Winfield also does not show significant, divergent cases that would be reconciled by the Court’s review. Supreme Court Rule 10(c). Accordingly, the Court should deny the petition for writ of certiorari and application for stay. Missouri has a discretionary clemency process with the Governor as the decision-maker. Article IV, § 7, Mo. Const.;
Cooper v. Holden
, 189 S.W.3d 614, 620 (Mo. banc 2006). The issue of due process rights arising from a discretionary clemency process has already been resolved by this Court. There is no liberty interest that is protected by due  process when the clemency decision is left to the discretion of the decision-maker.
Connecticut Bd. of Pardons v. Dumschat 
, 452 U.S. 458 (1981). Justice O’Connor, writing for a four-Justice plurality in
Ohio Adult Parole Authority v. Woodard 
, 523 U.S. 272 (1998), stated that there may be a theoretical case warranting judicial intervention
 
2 such as “a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.”
 Id 
. at 289 (O’Connor, J., concurring). Her statement also suggests there may not be such a theoretical case. Several years ago, the court below greatly expanded
Woodard 
 to grant a stay of execution in
Young v. Hayes
, 218 F.3d 850 (8
th
 Cir. 2000). But that action occurred  before this Court’s guidance about stays of execution in civil rights suits.
See
 
 Hill v.  McDonough
, 547 U.S. 573 (2006);
 Nelson v. Campbell 
, 523 U.S. 272 (2003). In contrast, the court below found no entitlement to a stay of execution in its June 17, 2014 decision. (Appendix A1-A2). Winfield suggests that this Court should grant review to resolve divergent decisions about the extent to which a condemned inmate is entitled to due process in clemency proceedings. Petition pp. 13-14 citing
Young v. Hayes
,
 supra
;
Wilson v. U.S.  Dist. Court for Northern Dist. of California
, 161 F.3d 1185 (9
th
 Cir. 1998);
 Faulder v. Texas Bd. of Pardons and Paroles
, 178 F.3d 343 (5
th
 Cir. 1999). Winfield contends that due process encompasses something much greater than what Justice O’Connor in her
Woodard
concurrence speculated might exist. But that contention would not be resolved by this Court. The Court below assumed the legal theory most favorable to Winfield, as represented by the
Young v.  Hayes
decision
 ,
 and it found no due process violation. The Missouri Department of Corrections provided to the Governor the declaration by Cole about which Winfield complains. Appendix, A6. “Whatever minimal procedural safeguards might be
 
3 guaranteed by the Due Process Clause in a clemency proceeding are likely satisfied here.”
 Id 
. The procedures did not violate the standard of
Woodard 
.
 Id 
. Nor did the  procedures violate the language in
Young 
, because the Department actually provided the declaration to the Governor.
 Id 
. The purpose of due process in the context of a clemency  petition is to get accurate information to the decision-maker, and that happened here. Winfield can provide more information arising out of the lawsuit to the Governor, if Winfield believes that is beneficial.
 Id 
. Winfield contends that Cole “disavowed” his statement (Petition, p.12). Cole’s statement was made under penalty of perjury (App. F3). Cole did not recant his statement as untrue at the district court hearing. (App. G8, G25-26). While he rescinded his willingness to submit the declaration (G25), the Governor received the full declaration nonetheless (Doc. 18-4). The strength of the “disavowed” declaration is actually highlighted by Winfield to the court in his rhetoric of the “Question Presented” (Petition, p.i.). Under these circumstances, there is no divergent decision by the lower courts that would be reconciled with a grant of review. The Court below distinguished
Young 
 on its facts. And the facts do not warrant a stay of execution. Respectfully submitted,
CHRIS KOSTER
Attorney General /s/ Stephen D. Hawke STEPHEN D. HAWKE Assistant Attorney General Missouri Bar No. 35242 P.O. Box 899

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