john winfield - scotus stay application

8/12/2019 John Winfield - SCOTUS Stay Application

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No. ______________

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

APPLICATION FOR STAY OF EXECUTION PENDING

PETITION FOR WRIT OF CERTIORARI, AND, ALTERNATIVELY,

APPLICATION FOR STAY OF EXECUTION PENDING COMPLETION

OF LITIGATION IN THE UNITED STATES DISTRICT COURT

JOSEPH W. LUBY*

JESSICA SUTTON

Death Penalty Litigation Clinic6155 Oak Street, Suite C

Kansas City, MO 64113

(816) 363-2795 (816) 363-2799 fax

*Counsel of Record


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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 Courts

disposition of his petition for writ of certiorari, or pending the litigation of

petitioners due process claim in the district court. Petitioner seeks review of the

Eighth Circuits 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 Circuits 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 courts grant of a stay, in the

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course of granting the respondents petition for rehearing. App. A1-A14. The

Eighth Circuits order endorses the respondents interpretation of Justice

OConnors 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 states witness-tampering was not comparable to Justice

OConnors examples of a coin-flip procedure or the prisoners complete denial of

access to the states clemency process. App. A6. The court of appeals also noted

that the respondents, after the district courts entry of a stay and injunction,

submitted the witnesss declaration to the Governor even though the witness

testified that he did not want his statement submitted. SeeApp. A6; App. C7, C13;

App. G67. The Governors awareness of the witnesss glowing statements left Mr.

Winfield without viable due process claim, the court of appeals reasoned. App.

A6.

Two separate dissenting opinions disagreed with both rulings. Judges

Murphy and Bye both reasoned that Justice OConnors 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

witnessa 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

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that the states voluntary action did not moot or otherwise eliminate Mr.

Winfields 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. Winfields witness or

other prison employees. App. A13-14, citingFriends 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 theWoodardexamples of a coin-flip or the prisoners complete denial of

access?

REASONS WHY PETITIONER IS ENTITLED TO A STAY

The standard for granting a stay of execution was articulated inBarefoot 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

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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 states reading of Woodardreflects a minority view,

endorsed only by the Fifth Circuit (at least until todays order on rehearing).

CompareYoung 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 states 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 OConnors concurrence).

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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.

Winfields claim, which is that due process entitles him to present a clemency

petition unencumbered by purposeful state interference. At the very least, the

states conduct violates its own law for the reasons explained in Judge Byes

dissent and the Eighth Circuits earlier ruling in Young. App. A12-13; Young, 218

F.3d at 853; accordDuvall 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 states own procedures, apparently irrespective of whether the

state engages in a coin-flip or completely excludes the prisoner from the

process).

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

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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. Winfields 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 states 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 Woodardconcurrence, Justice OConnor was merely providing

examples of fact-patterns that would violate due process. 523 U.S. at 289.

Justice OConnor did not opine that anystate 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

OConnor went on to consider and reject the merits of Mr. Woodards 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

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it sufficed that those shortcomings were less arbitrary than a coin-flip, we would

not expect Justice OConnor to have examined them. The dissents of Judges

Murphy and Bye are correct: Justice OConnor 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. Winfields claim. First, there is no authority for the states argument

that petitioners claim requires a reasonable probability that the states

interference will change the result of the clemency proceeding. And there is no

suggestion inHill 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 states 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

states interference has deprived the prisoner of an accurate clemency decision.

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It instead suffices that the states 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 states argument, and the ruling below, that

defense counsel cured Mr. Winfields 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 officers 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

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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

othersotherwise 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.

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In that time, the parties have struggled to present the law and facts governing Mr.

Winfields 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.

Winfields 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.

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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

[email protected]

816-363-2795

Counsel for Petitioner John E. Winfield.

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john winfield - scotus stay application

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