Nos.

13-10589, 13A1249
IN THE SUPREME COURT OF THE UNITED STATES
This is a capital case - Execution scheduled June 18, 2014
JOHN E. WINFIELD,
Petitioner,
v.
TROY STEELE,
Warden, Potosi Correctional Center, et al.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
REPLY BRIEF IN SUPPORT OF
PETITION FOR WRIT OF CERTIORARI AND APPLICATION FOR
STAY OF EXECUTION
JOSEPH W. LUBY*
JESSICA SUTTON
Death Penalty Litigation Clinic
6155 Oak Street, Suite C
Kansas City, MO 64113
(816) 363-2795 • (816) 363-2799 fax
*Counsel of Record
CAPITAL CASE — QUESTION PRESENTED
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-
C12.
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?
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TABLE OF CONTENTS
QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. Respondent illustrates the lower courts’ confusion about the level
of due process safeguards that apply to clemency proceedings. . . . . . . 1
II. The district court did not abuse its discretion by finding that
respondents did not, through their voluntary actions after the entry
of a stay and a preliminary injunction, cure Mr. Winfield’s injury or
prove that it would not recur. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-ii-
TABLE OF AUTHORITIES
Cases
Bowersox v. Williams, 517 U.S. 345 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Nooner v. Norris, 491 F.3d 804 (8th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998). . . . . . . . . . . . . . . . . . . . . i, 1
Young v. Hayes, 218 F.3d 850 (8th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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REPLY ARGUMENT
I. Respondent illustrates the lower courts’ confusion about the level of
due process safeguards that apply to clemency proceedings.
The state predictably relies on Ohio Adult Parole Authority v. Woodard, 523 U.S.
272 (1998). It argues that Eighth Circuit “greatly expanded Woodard to grant a stay of
execution in Young v. Hayes, 218 F.3d 850 (8th Cir. 2000).” Br. in Opp. at 2. But that
contention demonstrates Mr. Winfield’s point: the lower courts are confounded over
how to apply Woodard. In its principal opinion from earlier today, the Eighth Circuit
declined to endorse its earlier precedent and or to decide whether Young is a correct
reading of Woodard. App. A6. A separate concurrence states that Young should be
overruled because it is inconsistent with Woodard. App. A5-6. And the two dissenting
opinions hold that Young correctly applies Woodard, in which Justice O’Connor’s
examples are simply illustrations that neither “delineate the only two cognizable
claims of clemency procedures which violate due process” nor preclude a more
straightforward showing that the state’s actions violate its own statutory procedures.
App. A10, A12-A13. There is a live question, then, about whether rank witness-
tampering violates due process. See Young, 218 F.3d at 854.
II. The district court did not abuse its discretion by finding that
respondents did not, through their voluntary actions after the entry of a
stay and a preliminary injunction, cure Mr. Winfield’s injury or prove
that it would not recur.
Respondents next argue that the Court need not resolve the question presented
for its review, because they have already made Mr. Winfield whole. Brief in Opp. at 2-
-1-
3. Leaving aside the fact that a statement of withdrawn support differs from a
statement of unequivocal support, and that respondents “ignore reality” by
overlooking that difference—see App. A11 (Murphy, J., dissenting)—the state
overlooks the standard of review. A higher court reviews the grant of a stay of
execution for abuse of discretion. Bowersox v. Williams, 517 U.S. 345, 346 (1996);
Nooner v. Norris, 491 F.3d 804, 807 (8th Cir. 2007).
The district court heard live testimony, reviewed the evidence, and concluded
that Mr. Winfield’s legal injury remains intact. App. C12-C13, App. E2. The court
examined the hearing evidence about the prison’s polices and procedures, observed
that those practices have the effect of discouraging employees from supporting
clemency efforts, and held that “a trier of fact could reasonably infer that Cole (and
potentially other) employees of the Department of Corrections remain under a
substantial restraint as a result of the earlier actions of the defendants.” App. C11,
App. E2. The state is free to argue otherwise, but the issue was resolved by the court
that saw and heard the evidence. That court did not abuse its discretion.
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CONCLUSION
The petition for writ of certiorari and application for stay of execution 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
816-363-2795
Attorneys for Petitioner John E. Winfield
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