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John Winfield - SCOTUS Stay Application

John Winfield - SCOTUS Stay Application

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Published by markberman
Attorneys for John Winfield filed this to the U.S. Supreme Court.
Attorneys for John Winfield filed this to the U.S. Supreme Court.

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Published by: markberman on Jun 17, 2014
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This is a capital case - Execution scheduled June 18, 2014
Warden, Potosi Correctional Center, et al.
Death Penalty Litigation Clinic
6155 Oak Street, Suite C
Kansas City, MO 64113
(816) 363-2795 • (816) 363-2799 fax
*Counsel of Record
To the Honorable Samuel J. Alito, as Circuit Justice for the United States
Court of Appeals for the Eighth Circuit:
Petitioner John E. Winfield respectfully requests a stay of his execution,
presently scheduled for June 18, 2014, at 12:01 a.m., pending this Court’s
disposition of his petition for writ of certiorari, or pending the litigation of
petitioner’s due process claim in the district court. Petitioner seeks review of the
Eighth Circuit’s order vacating a stay of execution entered by the United States
District Court for the Eastern District of Missouri. The district court found
sufficient evidence to show that state officials coerced a correctional employee for
the purpose of preventing him from offering a sworn statement on clemency
explaining that Mr. Winfield is among “the top 1% of all inmates” and arguing
that he should not be executed. App. C8-C11. The court also granted a stay of
execution as well as a preliminary injunction, finding that Mr. Winfield was likely
to succeed on the merits of his claim. App. C8-C12. Among other authorities, the
court relied on the Eighth Circuit’s precedent in Young v. Hayes, 218 F.3d 850
(8th Cir. 2000), for the proposition that “It is a violation of due process for state
officials to frustrate a state-created clemency procedure by threatening the job of a
witness.” App. C8.
A divided Eighth Circuit vacated the district court’s grant of a stay, in the
course of granting the respondents’ petition for rehearing. App. A1-A14. The
Eighth Circuit’s order endorses the respondents’ interpretation of Justice
O’Connor’s controlling opinion in Ohio Adult Parole Authority v. Woodard, 523
U.S. 272, 289 (1998). The court of appeals vacated the stay, then, because it
believed that the state’s witness-tampering was not comparable to Justice
O’Connor’s examples of a coin-flip procedure or the prisoner’s complete denial of
access to the state’s clemency process. App. A6. The court of appeals also noted
that the respondents, after the district court’s entry of a stay and injunction,
submitted the witness’s declaration to the Governor even though the witness
testified that he did not want his statement submitted. See App. A6; App. C7, C13;
App. G67. The Governor’s awareness of the witness’s glowing statements left Mr.
Winfield without viable due process claim, the court of appeals reasoned. App.
Two separate dissenting opinions disagreed with both rulings. Judges
Murphy and Bye both reasoned that Justice O’Connor’s concurrence did not
exhaust the range of due process violations on clemency review, and Judge Bye
emphasized that it violates Missouri law for state officials to silence a clemency
witness—a point made by the Eighth Circuit precedent Mr. Winfield had earlier
invoked. App. A10, A12-13; see Young, 218 F.3d at 853. The dissenters also noted
that the state’s voluntary action did not moot or otherwise eliminate Mr.
Winfield’s claim. Judge Murphy pointed out that it “would ignore reality” to
overlook “the significant difference between the governor receiving a committed
voluntary statement in support of clemency and a later disavowed statement sent
on behalf of a pressured witness.” App. A11. And Judge Bye emphasized that the
district court did not abuse its discretion in finding, based on the evidence before
it, that the defendants had not satisfied their “heavy burden” of showing that the
Department of Corrections would not continue coercing Mr. Winfield’s witness or
other prison employees. App. A13-14, citing Friends of the Earth v. Laidlaw
Environmental Services, 528 U.S. 167, 189 (2000).
The petition for writ of certiorari presents the following question:
For purposes of clemency proceedings, does due process automatically
countenance procedural irregularities that are less arbitrary than the
Woodard examples of a coin-flip or the prisoner’s complete denial of
The standard for granting a stay of execution was articulated in Barefoot v.
Estelle, 463 U.S. 880 (1983). That standard requires the applicant to show (i) a
reasonable probability that four Members of the Court will consider the issues
raised in the petition sufficiently meritorious for a grant of certiorari, (ii) the
significant possibility that the Court will reverse the decision below, and (iii) that
irreparable harm will occur if the execution is not stayed. These factors are
established by contents of the pending petition for a writ of certiorari itself, which
are incorporated here.
Petitioner notes that the state’s reading of Woodard reflects a minority view,
endorsed only by the Fifth Circuit (at least until today’s order on rehearing).
Compare Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000) (“The Constitution of
the United States does not require that a state have a clemency procedure, but, in
our view, it does require that, if such a procedure is created, the state’s own
officials refrain from frustrating it by threatening the job of a witness.”); Wilson v.
U.S. Dist. Court for Northern Dist. of California, 161 F.3d 1185, 1186-88 (9th
Cir. 1998) (stay of execution upheld, where clemency authority misled counsel
about the issues to be considered); Lewis v. State Dept. of Corrections, 139 P.3d
1266, 1270 (Alaska 2006) (“If a prisoner relies on a particular basis recognized by
the state as a potential ground for clemency, the prisoner must have a fair
opportunity to make a factual showing that the ground has been satisfied.”); with
Faulder v. Texas Bd. of Pardons and Paroles, 178 F.3d 343, 344-45 (5th Cir.
1999) (procedures at issue “exhibited neither of these extreme situations”
described in Justice O’Connor’s concurrence).
Irreparable harm will occur if the execution is not stayed until the petition is
considered. Wainwright v. Booker, 473 U.S. 935 (1985) (Powell, J., concurring)
(recognizing that there is little doubt that a prisoner facing execution will suffer
irreparable injury if the stay is not granted.). Execution would moot Mr.
Winfield’s claim, which is that due process entitles him to present a clemency
petition unencumbered by purposeful state interference. At the very least, the
state’s conduct violates its own law for the reasons explained in Judge Bye’s
dissent and the Eighth Circuit’s earlier ruling in Young. App. A12-13; Young, 218
F.3d at 853; accord Duvall v. Keating, 162 F.3d 1058, 1061 (10th Cir. 1998); Baze
v. Thompson, 302 S.W.3d 57, 60 (Ky. 2010) (both stating that due process requires
compliance with the state’s own procedures, apparently irrespective of whether the
state engages in a “coin-flip” or completely excludes the prisoner from the
Moreover, Mr. Winfield has shown a “reasonable probability” that the Court
will grant certiorari and reverse the ruling below. Clemency is essential to
ensuring the fairness of our criminal justice system, and especially when a state
imposes the ultimate punishment. Harbison v. Bell, 556 U.S. 180, 192 (2009).
Clemency is “deeply rooted in our Anglo-American tradition of law, and is the
historic remedy for preventing miscarriages of justice where judicial process has
been exhausted.” Id., quoting Herrera v. Collins, 506 U.S. 390, 411-12 (1993). It
is the “fail-safe of our criminal justice system.” Harbison, 556 U.S. at 192 & n.10.
The question presented is an important and recurring one that divides the lower
courts; the state of confusion is amply demonstrated by the four separate and
fractured opinions issued in the hours before Mr. Winfield’s scheduled execution.
App. A3-A14.
Mr. Winfield is also likely to succeed on the merits of his due process claim,
as the district court found. This Court is unlikely to sustain the state’s reading of
Woodard, which is that even blatant witness-tampering is permissible as long as
the process does not completely exclude the prisoner or amount to an arbitrary
coin-flip. In her Woodard concurrence, Justice O’Connor was merely providing
“examples” of fact-patterns that would violate due process. 523 U.S. at 289.
Justice O’Connor did not opine that any state practice that is even slightly less
arbitrary than a coin-flip or the complete denial of access would comport with due
process, as if her examples were a constitutional sub-floor. To the contrary, Justice
O’Connor went on to consider and reject the merits of Mr. Woodard’s contentions.
She observed that Ohio authorities followed their own procedures, and she
rejected the argument that the giving of three days’ notice for a clemency
interview and ten days’ notice for a hearing violated due process. Id. at 289-90. If
it sufficed that those shortcomings were less arbitrary than a coin-flip, we would
not expect Justice O’Connor to have examined them. The dissents of Judges
Murphy and Bye are correct: Justice O’Connor did not establish “a firm boundary
delineating the only two cognizable claims of clemency procedures which violate
due process,” App. A10, and due process at least requires the state to follow its
own procedures. App. A12-A13.
Respondents have lodged other objects to the merits, but these do not
impair Mr. Winfield’s claim. First, there is no authority for the state’s argument
that petitioner’s claim requires a “reasonable probability” that the state’s
interference will change the result of the clemency proceeding. And there is no
suggestion in Hill v. McDonough, 547 U.S. 573 (2006), Nelson v. Campbell, 541
U.S. 637 (2004), or any other case, that Mr. Winfield lacks a substantial interest in
unimpeded clemency unless he proves that the state’s witness-tampering impairs
the chances of a commutation. In fact, the constitutional violation is complete
when the state deliberately interferes with clemency by threatening and silencing a
witness. Young, 218 F.3d at 853. The silencing of a witness denies Mr. Winfield
the right to be heard in the weightiest and most solemn of proceedings. Precisely
because those proceedings are discretionary, it is senseless to examine whether the
state’s interference has deprived the prisoner of an “accurate” clemency decision.
It instead suffices that the state’s conduct is “fundamentally unfair” because it
“unconscionably interferes with a process that the State itself has created.” Young,
218 F.3d at 853.
Likewise unavailing is the state’s argument, and the ruling below, that
defense counsel cured Mr. Winfield’s injury by forwarding the sworn statement to
the Governor against the express wishes of the officer who made it. The argument
is, at bottom, a contention that the defendants’ voluntary actions mooted the claim.
And that argument carries the “heavy burden” of making it “absolutely clear that
the allegedly wrongful behavior could not reasonably be expected to recur.”
Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167, 189
(2000). The district court correctly held that the defendants failed to satisfy that
burden. For one thing, the officer remains under threat, remains fearful that he will
lose his job, and remains a recalcitrant witness who has withdrawn his declaration
rather than an enthusiastic witness offering unequivocal support. App. C13, App.
E2. It “ignores reality” to overlook that difference. App. A11 (Murphy, J.,
dissenting). For another, even in the compressed time frame that Mr. Winfield was
able to develop his claim after it ripened with the officer’s declaration-rescission
on May 27, the evidence before the district court showed that the defendants’
practices tend to squelch employees from supporting clemency and that the events
of suit are apt to chill others from assisting. App. C7, C11, C13; App. E2; App.
G84-G88, G138-G139.
It was not incumbent upon Mr. Winfield or the district court to find other
employees who were coerced (and willing to testify to that fact) within the
pressing time constraints of stay litigation; rather, the “heavy burden” rests with
the state to show that it will not repeat its coercion of the witness or visit it upon
others—otherwise stated, to make it “absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.” Laidlaw, 528 U.S. at 189.
The district court did not abuse its discretion by finding that the defendants failed
to satisfy their burden. “[T]he question whether the effects of the interference still
persist is one on which reasonable people could differ, and therefore for a trier of
fact.” Young, 218 F.3d at 853.
Mr. Winfield respectfully requests that the Court stay his execution pending
its plenary consideration of his petition for writ of certiorari. Alternatively, Mr.
Winfield asks that the Court enter a stay so that petitioner may complete his
litigation of the district court proceedings. The district court took testimony for
several hours, issued a preliminary injunction, and concluded that Mr. Winfield is
likely to succeed at an eventual trial on the merits. App. C8-C12. The present case
ripened only on May 27, or some three weeks before the scheduled execution date.
In that time, the parties have struggled to present the law and facts governing Mr.
Winfield’s claim in a reasoned and thorough manner. This Court has ultimate
authority over the case and the eventual ability to grant certiorari after Mr.
Winfield has litigated his claims below. In order to protect that authority, the
Court should exercise its jurisdiction under 28 U.S.C. § 1651(a) to stay Mr.
Winfield’s execution so that his meritorious claims may proceed in a reasonably
orderly fashion.
WHEREFORE, for all the foregoing reasons, Mr. Winfield respectfully
requests that the Court stay his scheduled execution pending its consideration of
his petition for writ of certiorari, or alternatively, that the Court stay the execution
pending the completion of district court proceedings.
Respectfully submitted,
/s/ Joseph W. Luby
Joseph W. Luby (Counsel of Record)
Jessica E. Sutton
Death Penalty Litigation Clinic
6155 Oak Street, Suite C
Kansas City, MO 64113
Counsel for Petitioner John E. Winfield.

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