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
A staff member at the Potosi Correctional Center gave a sworn declaration stating
that petitioner John Winfield is “in the elite 1% of all inmates, including non-capital
inmates,” that Mr. Winfield helps younger and weaker prisoners adjust to prison life, that
the staff respect him, and that Mr. Winfield’s sentence should be commuted to life
imprisonment. But the officer withdrew his statement after investigators named him a
“suspect” and investigated him for the offense of “over-familiarity” with Mr. Winfield.
The district court held an evidentiary hearing and concluded that “Winfield is likely to
be able to prove at a later trial that prison officials took actions to intimidate [the
witness] to keep him from providing support for Winfield’s clemency petition.” App. C-
10. The district court ruled 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,” and
that Mr. Winfield is likely to succeed on the merits of his due process claim. App. C8-
The Eighth Circuit reversed, reasoning that the circumstances were not
tantamount to the examples described by Justice O’Connor’s concurring opinion in Ohio
Adult Parole Authority v. Woodard, 523 U.S. 272, 289 (1998), specifically, a coin-flip by the
decisionmaker or a prisoner’s complete denial of access to the clemency process.
This case 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 access?
QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
REASONS WHY THE WRIT SHOULD BE GRANTED. . . . . . . . . . . . . . . . . . . 14
The court should grant certiorari to clarify the type and extent of
“minimal” due process safeguards that attach to clemency proceedings. . . . 14
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
App. A Eighth Circuit order on petition for rehearing
App. B Eighth Circuit panel order on motion to vacate stay of execution
App. C District Court memorandum and order granting preliminary injunction
and stay of execution
App. D District Court’s preliminary injunction and stay of execution
App. E District court order denying motion to alter or amend judgment
App. F Exhibits from district court evidentiary hearing
App. G Transcript of district court evidentiary hearing
App. H Defendants’ “Suggestions in Opposition to Motion for Preliminary
Injunction, Motion for Stay of Execution, and Request for Injunctive
Relief,” filed in District Court
App. I Missouri Supreme Court order from State v. Skillicorn, Case No.
SC78864, Aug. 20, 2008
Aruanno v. Corzine, No. 07-5270 (AET), 2007 WL 4591378
(D.N.J. Dec. 28, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Faulder v. Texas Bd. of Pardons and Paroles, 178 F.3d 343 (5th Cir. 1999). . . . . . . . 16, 17
Harbison v. Bell, 556 U.S. 180 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18
Herrera v. Collins, 506 U.S. 390 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Hill v. McDonough, 547 U.S. 573 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Lewis v. State Dept. of Corrections, 139 P.3d 1266 (Alaska 2006). . . . . . . . . . . . . . . . 15, 16
Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998). . . . . . i, 8, 11, 12, 15, 16, 17
Tamayo v. Perry, 553 Fed. App’x 395 (5th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Concentrated Phosphate Export Assn., 393 U.S. 199 (1968). . . . . . . . . . . 10
Wilson v. U.S. Dist. Court for Northern Dist. of California,
161 F.3d 1185 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17
Winfield v. Steele, No. 4:14CV1022 CDP, 2014 WL 2616904
(E.D. Mo. Jun. 12, 2014) (Also at App. C1-C13). . . . . . . . . . . . . . . . . . . . . passim
Young v. Hayes, 218 F.3d 850 (8th Cir. 2000). . . . . . . . . . . . . . . . 8, 9, 12, 14, 15, 16, 18
28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1651(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2
Rules of Court
U.S. Sup. Ct. R. 13.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Fed. R. Civ. P. 59(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Petitioner John Winfield respectfully requests that a writ of certiorari issue to
review the order and judgment of the Eighth Circuit Court of Appeals, which vacated
a stay of execution entered by the United States District Court for the Eastern
District of Missouri on Mr. Winfield’s due process claim.
The Eighth Circuit’s order and opinion on rehearing, vacating the stay of
execution, is unpublished and appears in the Appendix at App. A-1. The court of
appeals’ earlier panel-order denying respondents’ motion to vacate the stay is likewise
unpublished, and it appears in the Appendix at App. B-1. The district court’s
memorandum and order granting a preliminary injunction and stay of execution is
unpublished and appears in the Appendix at App. C-1; the memorandum and order is
also available as Winfield v. Steele, No. 4:14CV1022 CDP, 2014 WL 2616904 (E.D. Mo.
Jun. 12, 2014). The court’s formal entry of an injunction and stay appears in the
Appendix at App. D-1. The district court’s order denying the defendants’ motion to
alter or amend the judgment is unpublished and appears in the Appendix at App. E-
This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). The state-
affiliated defendants appealed the district court’s order granting a stay, and the Eighth
Circuit vacated the stay in its order and opinion on rehearing. App. A1. Petitioner
also invokes the Court’s jurisdiction under 28 U.S.C. § 1651(a), which allows this
Court to “issue all writs necessary or appropriate in aid of [its] jurisdiction.” This
Court has ultimate jurisdiction over the due process claim that Mr. Winfield brought
in the district court and which remains pending there. Therefore, the Court has
authority to review the Eighth Circuit’s stay ruling in order to protect its eventual
jurisdiction. The Eighth Circuit issued its order and opinion on rehearing on June 17,
2014. This petition is therefore timely under Rule 13.1.
Section 1 of the Fourteenth Amendment to the United States Constitution
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Petitioner John Winfield is scheduled to be executed by the state of Missouri at
12:01 a.m. on Wednesday, June 18, 2014. He brought suit in the United States
District Court for the Eastern District of Missouri after state officials intimidated a
prison employee who has worked with Mr. Winfield for years, and who intended to
give a sworn declaration in support of Mr. Winfield’s petition for executive clemency.
The district court conducted an evidentiary hearing on petitioner’s motion for stay of
execution and preliminary injunction, before granting both motions.
The district court’s order summarized the evidence that was presented at the
The evidence showed that on the weekend of May 17 and 18, 2014,
Jessica Sutton, one of Winfield’s attorneys, came to the home of [the
witness], the laundry director at Potosi Correctional Center, where Winfield
is incarcerated. [The witness] supervised Winfield in the laundry at PCC
for five years. In response to counsel’s request, [the witness] told counsel
that he supported Winfield’s request for clemency, and that he was willing
to provide a letter that could be included in a clemency request.
On Monday, May 19, 2014, [the witness] spoke to Brenda Ross, a
PCC administrator assigned to deal with policy and legal issues. He asked
her about the prison policy regarding letters supporting clemency, and she
told him that there was no policy either against it or in favor of it. She told
him that it is up to the individual employee. She told him that if he did
speak to counsel or write a letter, he should be sure that it was clear he was
expressing his own opinion and was not speaking for the Department of
Corrections. Several witnesses testified that it is also policy that staff
members must report to their supervisors if they have any contact with
Counsel had approached [the witness] about a year ago and asked generally
whether he would support Winfield’s clemency, but she did not actually ask him to
sign anything until May of 2014.
attorneys for an inmate.
That same day [the witness] told his supervisor at the time, Larry
Jody Glore, that Winfield’s counsel had come to his home and asked him
to write a letter. Glore immediately called Warden Troy Steele to tell him
about the conversation, and Warden Steele told Glore that an attorney
coming to an employee’s home was a serious matter and that he should ask
[the witness] for a written statement. Glore did so and [the witness]
provided a written statement the next day. [The witness] told Glore that
he did not intend to write a letter supporting clemency.
On Tuesday, May 20, 2014, James Nicholson, an investigator with
the Missouri Department of Corrections Investigator General’s office,
summoned [the witness] to his office. He told [the witness] that he was
under investigation for alleged “over-familiarity” with Winfield. Nicholson
told [the witness] that there were allegations that he had met with
Winfield’s family and attorneys. [The witness] denied ever meeting or
talking to the family, but admitted that he had met with counsel.
It is Missouri Department of Corrections policy that employees can
write letters in support of clemency, so long as they do not indicate that
they are speaking for the department. When a staff member is under
investigation, he is not permitted to discuss the investigation or to
participate in activities potentially relating to the investigation. [The
witness] believed that this policy meant he could not support plaintiff’s
clemency efforts while the investigation was pending. Nicholson confirmed
to him that this was the case. At the conclusion of the conversation,
Nicholson asked [the witness] to write a statement, which [the witness] did.
In his statement, [the witness] denied that he had agreed to write a
clemency letter.
Attorney Sutton came back to [the witness’s] home on May 22,
2014, and provided him with a typewritten declaration that included the
things [the witness] had told her before about Winfield. [The witness] told
Sutton that he was under investigation for over-familiarity and that he was
concerned that signing the declaration could place his job in jeopardy.
After more discussion, he agreed to sign the declaration because Sutton
agreed to redact it and remove all information that could identify him as
[The witness] wrote the statement to Glore after he learned he was under
the person providing the declaration. He testified at the hearing that he was
concerned about the public and his employer knowing his identity, because
people have different views on these issues. The declaration [the witness]
signed is very favorable to Winfield. It states, among other things, that
although he did not disagree with the death penalty generally, he did not
believe it was appropriate for Winfield. The declaration stated that
Winfield is in the “elite 1% of all inmates.” It described plaintiff as a
compassionate and generous person who has the ability to mentor young
inmates and change their lives. [The witness] stated that he had seen
Winfield help other inmates, was a very good worker, and had the respect
of prison staff and other inmates.
At some later point, Sutton provided an additional draft declaration
for [the witness] to sign. This one included many of the same favorable
statements about Winfield, but also included statements to the effect that
[the witness] feared for his employment because immediately after telling
people at the prison that he had spoken to Winfield’s counsel he came
under investigation for over-familiarity. [The witness] did not sign this
statement, and testified that he did not agree with the portion that said he
was concerned for his job.
On May 27, Sutton texted [the witness] and asked him if he had
received the new declaration. His wife, on his behalf, then texted the
following response from [the witness’s] phone:
Jessica, after considerable debate and discussion with my wife, I
have decided that I cannot sign the declaration at this time due to
the current pending investigation. It is also my wish to rescind the
redacted copy that I have already signed as well. Some concerns
have arisen that Nancy and I have due to this current investigation,
however, once I have received a final disposition of the unmerited
investigation in which is an utterly ridiculous claim of
over-familiarity, I will have no problem in signing either declaration.
[The witness] did not talk to Sutton again.
On May 28, Nicholson provided a report finding the allegations of
over-familiarity to be unfounded. He sent the report to Warden Steele, but
no one notified [the witness] of the results of the investigation until June
4, when he was again interviewed by an investigator from the Inspector
General’s office.
When counsel filed this suit on June 3, they filed the complete
signed declaration under seal and ex parte and filed the redacted copy in
the public file. On June 4, 2014, after hearing news reports indicating that
a correctional officer at PCC was under investigation for assisting
Winfield’s counsel in clemency proceedings, the MDOC Inspector General
sent Paul Wilson to PCC to investigate the news reports. He conducted a
very lengthy interview of [the witness]. During the interview he told [the
witness], for the first time, that the over-familiarity investigation had been
concluded and the allegations had been deemed unfounded.
[The witness] testified that he had gone back and forth in trying to
decide whether to assist Winfield. When he was questioned by prison
officials, however, [the witness] consistently denied signing a letter or
agreeing to help Winfield in any way. After Wilson repeatedly told him that
it would be “fine” if he had signed something, [the witness] ultimately
admitted that he had provided the statement to Sutton. Wilson said, “You
won’t be in any trouble for providing something that you are allowed to
provide.... If you did, ... that’s fine ... but don’t feel like you have to say no,
you didn’t, because you think you might be in trouble for it, because you
are not.” After that statement, [the witness] admitted that he had signed the
At the hearing, and when he spoke with Wilson, [the witness] denied
ever being threatened. Similarly, he told Sutton that no one had directly
threatened him. Sutton testified, however, that [the witness] told her he
was very concerned for his job and believed the investigation was
prompted by his cooperation with Winfield’s attorneys. [The witness]
stated several times that he found it was “odd” or “weird” that the
investigation began the day after he told prison officials that he had spoken
to Winfield’s counsel, and that he was “concerned” about the investigation.
When Wilson questioned him repeatedly about whether he had been
threatened, [the witness] said he had not.
But [the witness] also told Wilson that he did, in fact, feel
threatened. He stated: “I am still apprehensive. And I do feel threatened.
I feel threatened and no I am not going to write a letter. I am not going to
sign something like this right here. Was there a redacted copy? Sure there
was a redacted copy.” [The witness] confirmed at the hearing that he no
longer wants to provide a letter or support for Winfield’s request for
Defendants presented evidence that the investigation into [the
witness’s] over-familiarity with Winfield was begun because of a report
from another inmate. In late December and early January an inmate wrote
letters to a correctional officer indicating that [the witness] was suspiciously
close to Winfield, that [the witness] had visited Winfield’s family and talked
to his death penalty attorney, and that prisoners who worked in the laundry
under [the witness’s] supervision were extorting money from other
prisoners. The complaint indicated that the inmates working in the laundry
were making significant money from “customers,” that is, from other
inmates for whom they provided additional laundry services such as
sorting, folding, and pressing, and were pressuring “non-customer”
inmates to pay by not providing them with good service. The letter
indicated that inmates had reported this money-making venture to [the
witness], but he did not do anything to stop the practice. In March,
Warden Steele asked the Inspector General to investigate the inmate’s
allegations. These are the allegations that Nicholson ultimately began
investigating on May 20, the day after Warden Steele and other officials
learned that [the witness] had spoken to Winfield’s attorney. Nicholson
chose not to investigate the allegations about laundry workers charging
inmates for services, because he was only concerned with the allegations
of over-familiarity, as he considered those to be a threat to the security of
the institution. In addition to interviewing [the witness], Nicholson also
interviewed Glore and Ross, again focusing on [the witness’s]
communications with Winfield’s lawyers.
App. C2-C8.
The defendants, for their part, made no legal defense of the state’s conduct. In
opposing the motions for stay and preliminary injunction, defense counsel argued
only the facts, contending that Mr. Winfield’s claim “is factually meritless,” and that
prison officials never “threatened” the correctional officer at issue. App. H1-H3.
Counsel likewise withheld the state’s current arguments from the evidentiary hearing.
App. G. The defendants’ opening and closing statements referred merely to the facts
and evidence, and counsel urged his theory that the witness was never threatened by
any personnel of the Missouri Department of Corrections. App. G4, G153-G154.
The defendants never argued that clemency affords only “limited” protections or that
due process is indifferent to the coercion of witnesses, they never cited Ohio Adult
Parole Authority v. Woodard, 523 U.S. 272, 289 (1998), and they never urged that Mr.
Winfield’s claim fails because he was not completely and utterly denied all access to
the clemency process or subjected to a coin-flip.
The district court granted a stay of execution as well as a preliminary injunction
based on the evidence presented. App. C8-C12. At the outset, the court observed 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,” citing the Eighth Circuit’s opinion in
Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). The court then analyzed Mr.
Winfield’s claim under the considerations described in Hill v. McDonough, 547 U.S.
573, 583-84 (2006). First, it ruled that Mr. Winfield is likely to prevail on the merits of
his due process claim. Mr. Winfield “is likely to be able to prove that [the witness], in
fact, changed his decision because of the over-familiarity investigation.” App. C10.
The court acknowledged investigator Nicholson’s testimony that it was a coincidence
that he informed the witness that he was a “suspect” in an investigation of “over-
familiarity” the day after the witness informed the policy coordinator and his boss
about his contact with petitioner’s lawyer. Nevertheless, the court found it unlikely
that a trier of fact would believe that evidence, given the fact that no meaningful steps
had been taken on the “over-familiarity” investigation for months, and that the
investigation narrowed from its initial scope in January 2014 to a particular focus on
the witness’s contact with petitioner’s counsel. App. C11.
The court therefore found “substantial evidence that the department’s actions
caused [the witness] to fear that his employment would be negatively affected if he
continued to support clemency. And there is substantial evidence that [the witness]
was, in fact, deterred from supporting the request for clemency” Id.
The court next found that the other relevant considerations favored a stay. It
observed that the risk of irreparable harm to petitioner is “obvious,” that the balance
of harms favored petitioner despite the state’s interest in carrying out executions
without federal interference, that the public interest favors due process, and that Mr.
Winfield did not unreasonably delay his claim by filing suit on June 3, considering
that the claim had ripened on May 27 when the witness rescinded his sworn
statement. App. C11-C12.
The district court then considered the issue of mootness. It rejected the
defendants’ argument that the case became moot when they cleared the correctional
officer of over-familiarity on May 28, or at least when they informed him of that
decision on June 4. The court reasoned that respondents were simply invoking their
own “voluntary cessation of illegal activity,” and that such a party bears a heavy
burden to show that the wrongful behavior cannot reasonably be expected to recur.
App. C12, citing Young, 218 F.3d at 852. The case was non-moot, the court ruled,
because the defendants had not proven that the Department of Corrections would
not further coerce the witness or interfere with his or other employees’ efforts to
support petitioner’s clemency. App. C13. Relying on the witness’s testimony that he
did not want his declaration to be submitted to the Governor, the court observed that
“a trier of fact might infer that [the witness’s] current unwillingness to support
Winfield’s clemency is the result of ongoing pressure from the defendants.” Id.
Defendants moved to alter or amend the court’s ruling under Fed. R. Civ. P.
59(e). In support of their motion, defendants informed the court they themselves had
presented the sworn declaration to the Governor’s counsel. See ECF Doc. 19-4.
Defendants therefore urged that Mr. Winfield’s claim was moot, since the Governor
had been provided with the witness’s favorable statement. ECF Doc. 19 at 3. The
district court disagreed. Denying the motion, it ruled that the trier of fact could
reasonably find that the witness and potentially other correctional employees “remain
under a substantial restraint as a result of the earlier actions of the defendants.” App.
E-2. The court reiterated its earlier ruling that the defendants had not satisfied their
“heavy burden” of demonstrating that subsequent events had “made it absolutely
clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
Id., quoting Young, 218 F.3d at 852 (quoting United States v. Concentrated Phosphate
Export Assn., 393 U.S. 199, 203 (1968)).
Defendants next moved the Eighth Circuit to vacate the district court’s order.
See Winfield v. Steele et al., 8th Cir. Case No. 14-2392 (motion filed June 13, 2014).
Defendants argued, for the first time, that the facts alleged and proven by Mr.
Winfield did not violate due process, because they were not tantamount to a “coin
flip” or a prisoner’s complete denial of access to the clemency process as discussed
by Justice O’Connor’s concurrence in Ohio Adult Parole Authority v. Woodard, 523 U.S.
272, 289 (1998). Defendants next argued that Mr. Winfield had not shown a
“reasonable probability” that the state’s interference would make a difference in the
Governor’s decision, in light of petitioner’s “heinous” underlying crime. And
defendants reiterated their claim of mootness, contending that they mooted Mr.
Winfield’s claim by presenting the sworn declaration to the Governor.
A panel of the Eighth Circuit denied the motion to vacate by a vote of 2-1.
App. B1-B5. Judge Colloton dissented. The dissent argued that the circumstances of
this case were not comparable to Justice O’Connor’s two examples of arbitrariness in
Woodard, and that Mr. Winfield lacks a viable due process claim because the
defendants below gave the witness’s sworn declaration to the Governor. Id.
The defendants petitioned for rehearing, which the court of appeals granted
and thereby dissolved the stay over the dissents of four judges. App. A1-A14. The
majority reasoned that Justice O’Connor’s hypothetical examples serve as the level of
due process required on clemency review, and it ruled that Mr. Winfield is unlikely to
prevail on his claim because the state’s practices here “do not approach the
arbitrariness contemplated by Justice O’Connor in Woodard: a coin flip or an arbitrary
denial of access to any clemency process.” App. A6. The majority also reasoned that
Winfield had been made whole by defense counsel’s having delivered the witness’s
statement to the Governor. Id. Judge Gruender separately concurred, arguing that the
Eighth Circuit should overrule its precedent in Young v. Hayes because it is
inconsistent with Justice O’Connor’s controlling opinion in Woodard. App. A7-A8.
Judges Murphy, Bye, Melloy, and Kelly dissented over the course of two
separate opinions. App. A9-A12. Judge Murphy stated that the examples provided by
Justice O’Connor in Woodard are merely examples, and that “Justice O’Connor’s
hypothetical should not be read to set a firm boundary delineating the only two
cognizable claims of clemency procedures which violate due process.” App. A10.
Judge Murphy also disagreed with the court’s view that defense counsel cured Mr.
Winfield’s injury by delivering the witness’s declaration to the Governor. “There is a
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. “To conclude otherwise would ignore reality.” Id.
Judge Bye dissented for similar reasons. He noted that the Eighth Circuit’s
precedents indeed involve only the “minimal” requirement that the state abide by its
own procedures. App. A12. Judge Bye pointed out that Missouri’s statutes require all
persons to give relevant information to a clemency board of inquiry, App. A13, just
as the Eighth Circuit’s earlier precedent noted that the Governor may consider any
evidence in support of clemency and that the state’s threatened firing of a witness
amounts to the crime of witness-tampering. See Young, 218 F.3d at 853. App. A13.
And he agreed with Judge Murphy that the state actors did not eliminate the due
process violation by delivering the sworn declaration to the Governor. App. A13-
A14. A “reasonable trier of fact” could conclude that the witness changed his mind
because of ongoing pressure, and Judge Bye therefore concluded that “it was not an
abuse of discretion for the district court to conclude that intimidation and
interference could be reasonably expected to recur.” App. A14.
This urgent petition follows.
The Court should grant certiorari to clarify the type and extent of
“minimal” due process safeguards that attach to clemency
For present purposes, the state does not challenge the district court’s factual
finding of state interference. It accepts the district court’s finding of sufficient
evidence to prove that the correctional officer became and remains unwilling to
support clemency because of “ongoing pressure from the defendants.” App. C10-
C11, C13. At issue is whether that interference creates a viable due process
claim—which it did under prevailing Eighth Circuit precedent until today. See 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.”).
This Court recently reaffirmed the essential role of clemency in assuring the
fairness of our criminal justice system. 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,” and above all, for prisoners facing the
ultimate punishment. Harbison, 556 U.S. at 192 & n.10.
The Court recognizes that clemency is more than “a matter of mercy alone,”
id., but the degree of fairness it must afford remains unclear. The controlling
authority is Justice O’Connor’s concurrence in Ohio Adult Parole Authority v. Woodard,
523 U.S. 272 (1998). Justice O’Connor opined that “some minimal procedural
safeguards apply to clemency proceedings.” Id. at 289 (emphasis in original). As
examples of proceedings that might fail this standard, Justice O’Connor described “a
scheme whereby a state official flipped a coin to determine whether to grant
clemency,” as well as “a case where the State arbitrarily denied a prisoner any access
to its clemency process.” Id.
Lower courts have since struggled to define the “minimal” process that is due.
Cases from the Ninth and Eighth Circuits suggest that Justice O’Connor’s examples
are just that: examples, rather than constitutional sub-floor resting just beneath the
minimum. See Wilson v. U.S. Dist. Court for Northern Dist. of California, 161 F.3d 1185
(9th Cir. 1998); Young v. Hayes, 218 F.3d 850 (8th Cir. 2000). The prisoner in Wilson
alleged that the clemency authority misled his counsel about the issues that would be
considered. Among other problems, counsel was told the governor would not
consider evidence negating the prisoner’s guilt, only to be informed that clemency
was denied because no such evidence was presented. The Ninth Circuit upheld the
district court’s grant of a temporary restraining order on the prisoner’s execution, and
it held that the allegations stated a viable due process claim. Wilson, 161 F.3d at
1186-87; accord 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.”).
In Young, a prosecutor threatened to fire one of her subordinates, who wished
speak in support of a condemned inmates’ petition to the governor. The Eighth
Circuit reversed the district court’s dismissal of the suit and stayed the prisoner’s
execution. It reasoned that a state agent had “deliberately interfered” with the
prisoner’s efforts to present evidence to the governor. Young, 218 F.3d at 852-53.
Such official conduct is “fundamentally unfair” because it “unconscionably interferes
with a process that the State itself has created.” Id. at 853.
Of course, the prisoners in Wilson and Young were merely limited in their
clemency efforts—for example, by the State’s squelching of a single witness. Both
prisoners suffered a lesser violation than “a case where the State arbitrarily denied a
prisoner any access to its clemency process.” Woodard, 523 U.S. at 289 (O’Connor, J.,
concurring). Yet, both stated valid due process claim, and both obtained stays of
By contrast, the Fifth Circuit follows a more restrictive view, under which
Justice O’Connor’s examples serve as a species of constitutional sub-floor: a coin flip
might not comport with due process, but anything less arbitrary is permissible. See
Faulder v. Texas Bd. of Pardons and Paroles, 178 F.3d 343 (5th Cir. 1999). In Faulder a
death-sentenced prisoner argued, among other things, that the Texas clemency
authority gave him inadequate notice of the issues it would consider, met in secret,
and failed to explain its decisions. The Fifth Circuit found no due process violation.
It recited Justice O’Connor’s two examples, and it observed that “Faulder’s clemency
procedures exhibited neither of these extreme situations.” Id. at 344-45. The Fifth
Circuit continues to enforce Faulder today. See Tamayo v. Perry, 553 Fed. App’x 395,
400-01 (5th Cir. 2014); accord Aruanno v. Corzine, No. 07-5270 (AET), 2007 WL
4591378 at *5 (D.N.J. Dec. 28, 2007) (rejecting prisoner’s claim because “New Jersey
has neither denied Plaintiff access to its clemency process nor arbitrarily denied
clemency based on the flip of a coin”).
The split of authority is dispositive of Mr. Winfield’s due process claim. If the
Fifth Circuit’s view is correct, then even witness-tampering does not violate due
process, so long as the clemency procedure is marginally less arbitrary than a coin-flip
and the prisoner has not been wholly denied access to it. Indeed, that is the very
position taken by the state below and embodied in the court of appeals’ final order
and opinion. App. A5-A6. On the other hand, the Eighth Circuit’s view in Young and
the Ninth Circuit’s opinion in Wilson recognize a right to some basic modicum of
fairness falling short of trial procedures but exceeding the fairness of a gubernatorial
coin-flip. There is no dispute here that Mr. Winfield has not been wholly denied “any
access to [Missouri’s] clemency process.” Woodard, 523 U.S. at 289 (O’Connor, J.,
concurring). And yet, the more permissive post-Woodard law recognizes his viable
claim: “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.” Young, 218 F.3d at 853.
The Court should grant certiorari to resolve this ongoing conflict and to
provide needed guidance to the lower courts and state officials alike. The fractured
opinions below reflect the confusion that reigns in this area of the law. Clemency
cannot serve as the “fail-safe of our criminal justice system,” Harbison, 556 U.S. at
192, without a clearer consensus of what modest process is due.
The petition for writ of certiorari should be granted.
Respectfully submitted,
/s/ Joseph W. Luby
Joseph W. Luby, Mo. Bar 48951
Jessica Sutton, Mo. Bar 63600
Death Penalty Litigation Clinic
6155 Oak Street, Suite C
Kansas City, MO 64113
Attorneys for Petitioner John E. Winfield

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