winfield - scotus cert petition

8/12/2019 Winfield - SCOTUS Cert Petition

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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 THEUNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOSEPH W. LUBY*JESSICA SUTTONDeath Penalty Litigation Clinic

6155 Oak Street, Suite CKansas City, MO 64113(816) 363-2795 (816) 363-2799 fax

*Counsel of Record


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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. Winfields 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 Winfields 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 OConnors concurring opinion in Ohio

Adult Parole Authority v. Woodard, 523 U.S. 272, 289 (1998), specifically, a coin-flip by the

decisionmaker or a prisoners complete denial of access to the clemency process.

This case presents the following question:

For purposes of clemency proceedings, does due process automaticallycountenance procedural irregularities that are less arbitrary than the Woodardexamples of a coin-flip or the prisoners complete denial of access?

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TABLE OF CONTENTS

QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.. . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

REASONS WHY THE WRIT SHOULD BE GRANTED. . . . . . . . . . . . . . . . . . . 14

The court should grant certiorari to clarify the type and extent ofminimal due process safeguards that attach to clemency proceedings. . . . 14

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX

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 injunctionand stay of execution

App. D District Courts 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

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App. H Defendants Suggestions in Opposition to Motion for PreliminaryInjunction, Motion for Stay of Execution, and Request for InjunctiveRelief, filed in District Court

App. I Missouri Supreme Court order from State v. Skillicorn, Case No.SC78864, Aug. 20, 2008

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TABLE OF AUTHORITIES

Cases

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. Appx 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

Statutes

28 U.S.C. 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. 1651(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2

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Rules of Court

U.S. Sup. Ct. R. 13.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. Civ. P. 59(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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PETITION FOR WRIT OF CERTIORARI

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. Winfields due process claim.

OPINIONS BELOW

The Eighth Circuits 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 courts

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 courts formal entry of an injunction and stay appears in the

Appendix at App. D-1. The district courts order denying the defendants motion to

alter or amend the judgment is unpublished and appears in the Appendix at App. E-

1.

STATEMENT OF JURISDICTION

This Courts jurisdiction is invoked under 28 U.S.C. 1254(1). The state-

affiliated defendants appealed the district courts order granting a stay, and the Eighth

Circuit vacated the stay in its order and opinion on rehearing. App. A1. Petitioner

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also invokes the Courts 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 Circuits 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.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the United States Constitution

provides:

All persons born or naturalized in the United States, and subject to thejurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which shallabridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without dueprocess of law; nor deny to any person within its jurisdiction the equalprotection of the laws.

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STATEMENT OF THE CASE

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. Winfields petition for executive clemency.

The district court conducted an evidentiary hearing on petitioners motion for stay of

execution and preliminary injunction, before granting both motions.

The district courts order summarized the evidence that was presented at the

hearing:

The evidence showed that on the weekend of May 17 and 18, 2014,Jessica Sutton, one of Winfields attorneys, came to the home of [thewitness], the laundry director at Potosi Correctional Center, where Winfieldis incarcerated. [The witness] supervised Winfield in the laundry at PCC1

for five years. In response to counsels request, [the witness] told counselthat he supported Winfields request for clemency, and that he was willingto provide a letter that could be included in a clemency request.

On Monday, May 19, 2014, [the witness] spoke to Brenda Ross, aPCC administrator assigned to deal with policy and legal issues. He askedher about the prison policy regarding letters supporting clemency, and shetold him that there was no policy either against it or in favor of it. She toldhim that it is up to the individual employee. She told him that if he didspeak to counsel or write a letter, he should be sure that it was clear he wasexpressing his own opinion and was not speaking for the Department ofCorrections. Several witnesses testified that it is also policy that staffmembers must report to their supervisors if they have any contact with

Counsel had approached [the witness] about a year ago and asked generally1

whether he would support Winfields clemency, but she did not actually ask him tosign anything until May of 2014.

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attorneys for an inmate.

That same day [the witness] told his supervisor at the time, LarryJody Glore, that Winfields counsel had come to his home and asked himto write a letter. Glore immediately called Warden Troy Steele to tell himabout the conversation, and Warden Steele told Glore that an attorneycoming to an employees 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 that2

he did not intend to write a letter supporting clemency.

On Tuesday, May 20, 2014, James Nicholson, an investigator withthe Missouri Department of Corrections Investigator Generals office,summoned [the witness] to his office. He told [the witness] that he was

under investigation for alleged over-familiarity with Winfield. Nicholsontold [the witness] that there were allegations that he had met withWinfields family and attorneys. [The witness] denied ever meeting ortalking to the family, but admitted that he had met with counsel.

It is Missouri Department of Corrections policy that employees canwrite letters in support of clemency, so long as they do not indicate thatthey are speaking for the department. When a staff member is underinvestigation, he is not permitted to discuss the investigation or toparticipate in activities potentially relating to the investigation. [The

witness] believed that this policy meant he could not support plaintiffsclemency efforts while the investigation was pending. Nicholson confirmedto 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 aclemency letter.

Attorney Sutton came back to [the witnesss] home on May 22,2014, and provided him with a typewritten declaration that included thethings [the witness] had told her before about Winfield. [The witness] toldSutton that he was under investigation for over-familiarity and that he wasconcerned that signing the declaration could place his job in jeopardy.

After more discussion, he agreed to sign the declaration because Suttonagreed to redact it and remove all information that could identify him as

[The witness] wrote the statement to Glore after he learned he was under2

investigation.

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the person providing the declaration. He testified at the hearing that he wasconcerned about the public and his employer knowing his identity, becausepeople have different views on these issues. The declaration [the witness]signed is very favorable to Winfield. It states, among other things, thatalthough he did not disagree with the death penalty generally, he did notbelieve it was appropriate for Winfield. The declaration stated that

Winfield is in the elite 1% of all inmates. It described plaintiff as acompassionate and generous person who has the ability to mentor younginmates and change their lives. [The witness] stated that he had seen

Winfield help other inmates, was a very good worker, and had the respectof prison staff and other inmates.

At some later point, Sutton provided an additional draft declarationfor [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 tellingpeople at the prison that he had spoken to Winfields counsel he cameunder investigation for over-familiarity. [The witness] did not sign thisstatement, 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 hadreceived the new declaration. His wife, on his behalf, then texted thefollowing response from [the witnesss] phone:

Jessica, after considerable debate and discussion with my wife, Ihave decided that I cannot sign the declaration at this time due tothe current pending investigation. It is also my wish to rescind theredacted copy that I have already signed as well. Some concernshave arisen that Nancy and I have due to this current investigation,however, once I have received a final disposition of the unmeritedinvestigation in which is an utterly ridiculous claim ofover-familiarity, I will have no problem in signing either declaration.Sorry.

[The witness] did not talk to Sutton again.

On May 28, Nicholson provided a report finding the allegations ofover-familiarity to be unfounded. He sent the report to Warden Steele, butno one notified [the witness] of the results of the investigation until June4, when he was again interviewed by an investigator from the Inspector

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Generals office.

When counsel filed this suit on June 3, they filed the completesigned declaration under seal and ex parte and filed the redacted copy inthe public file. On June 4, 2014, after hearing news reports indicating thata correctional officer at PCC was under investigation for assisting

Winfields counsel in clemency proceedings, the MDOC Inspector Generalsent Paul Wilson to PCC to investigate the news reports. He conducted a

very lengthy interview of [the witness]. During the interview he told [thewitness], for the first time, that the over-familiarity investigation had beenconcluded and the allegations had been deemed unfounded.

[The witness] testified that he had gone back and forth in trying todecide whether to assist Winfield. When he was questioned by prison

officials, however, [the witness] consistently denied signing a letter oragreeing to help Winfield in any way. After Wilson repeatedly told him thatit would be fine if he had signed something, [the witness] ultimatelyadmitted that he had provided the statement to Sutton. Wilson said, You

wont be in any trouble for providing something that you are allowed toprovide.... If you did, ... thats fine ... but dont feel like you have to say no,you didnt, because you think you might be in trouble for it, because youare not. After that statement, [the witness] admitted that he had signed thedocument.

At the hearing, and when he spoke with Wilson, [the witness] deniedever being threatened. Similarly, he told Sutton that no one had directlythreatened him. Sutton testified, however, that [the witness] told her he

was very concerned for his job and believed the investigation wasprompted by his cooperation with Winfields attorneys. [The witness]stated several times that he found it was odd or weird that theinvestigation began the day after he told prison officials that he had spokento Winfields counsel, and that he was concerned about the investigation.

When Wilson questioned him repeatedly about whether he had beenthreatened, [the witness] said he had not.

But [the witness] also told Wilson that he did, in fact, feelthreatened. 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 tosign something like this right here. Was there a redacted copy? Sure there

was a redacted copy. [The witness] confirmed at the hearing that he nolonger wants to provide a letter or support for Winfields request for

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clemency.

Defendants presented evidence that the investigation into [thewitnesss] over-familiarity with Winfield was begun because of a reportfrom another inmate. In late December and early January an inmate wroteletters to a correctional officer indicating that [the witness] was suspiciouslyclose to Winfield, that [the witness] had visited Winfields family and talkedto his death penalty attorney, and that prisoners who worked in the laundryunder [the witnesss] supervision were extorting money from otherprisoners. The complaint indicated that the inmates working in the laundry

were making significant money from customers, that is, from otherinmates for whom they provided additional laundry services such assorting, folding, and pressing, and were pressuring non-customerinmates to pay by not providing them with good service. The letter

indicated that inmates had reported this money-making venture to [thewitness], but he did not do anything to stop the practice. In March,Warden Steele asked the Inspector General to investigate the inmatesallegations. These are the allegations that Nicholson ultimately beganinvestigating on May 20, the day after Warden Steele and other officialslearned that [the witness] had spoken to Winfields attorney. Nicholsonchose not to investigate the allegations about laundry workers charginginmates for services, because he was only concerned with the allegationsof over-familiarity, as he considered those to be a threat to the security ofthe institution. In addition to interviewing [the witness], Nicholson also

interviewed Glore and Ross, again focusing on [the witnesss]communications with Winfields lawyers.

App. C2-C8.

The defendants, for their part, made no legal defense of the states conduct. In

opposing the motions for stay and preliminary injunction, defense counsel argued

only the facts, contending that Mr. Winfields claim is factually meritless, and that

prison officials never threatened the correctional officer at issue. App. H1-H3.

Counsel likewise withheld the states current arguments from the evidentiary hearing.

App. G. The defendants opening and closing statements referred merely to the facts

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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.

Winfields 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 Circuits opinion in

Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). The court then analyzed Mr.

Winfields 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 Nicholsons 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 petitioners lawyer. Nevertheless, the court found it unlikely

that a trier of fact would believe that evidence, given the fact that no meaningful steps

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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 witnesss contact with petitioners counsel. App. C11.

The court therefore found substantial evidence that the departments 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 states 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,

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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 petitioners clemency. App. C13. Relying on the witnesss 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 witnesss] current unwillingness to support

Winfields clemency is the result of ongoing pressure from the defendants. Id.

Defendants moved to alter or amend the courts 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 Governors counsel. SeeECF Doc. 19-4.

Defendants therefore urged that Mr. Winfields claim was moot, since the Governor

had been provided with the witnesss 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 courts order.

SeeWinfield v. Steele et al., 8th Cir. Case No. 14-2392 (motion filed June 13, 2014).

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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 prisoners complete denial of access to the clemency process as discussed

by Justice OConnors 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 states interference would make a difference in the

Governors decision, in light of petitioners heinous underlying crime. And

defendants reiterated their claim of mootness, contending that they mooted Mr.

Winfields 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 OConnors two examples of arbitrariness in

Woodard, and that Mr. Winfield lacks a viable due process claim because the

defendants below gave the witnesss 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 OConnors 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 states practices here do not approach the

arbitrariness contemplated by Justice OConnor in Woodard: a coin flip or an arbitrary

denial of access to any clemency process. App. A6. The majority also reasoned that

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Winfield had been made whole by defense counsels having delivered the witnesss

statement to the Governor. Id.Judge Gruender separately concurred, arguing that the

Eighth Circuit should overrule its precedent in Young v. Hayesbecause it is

inconsistent with Justice OConnors 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 OConnor in Woodardare merely examples, and that Justice OConnors

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 courts view that defense counsel cured Mr.

Winfields injury by delivering the witnesss 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 Circuits

precedents indeed involve only the minimal requirement that the state abide by its

own procedures. App. A12. Judge Bye pointed out that Missouris statutes require all

persons to give relevant information to a clemency board of inquiry, App. A13, just

as the Eighth Circuits earlier precedent noted that the Governor may consider any

evidence in support of clemency and that the states threatened firing of a witness

amounts to the crime of witness-tampering. SeeYoung, 218 F.3d at 853. App. A13.

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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.

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REASONS WHY THE WRIT SHOULD BE GRANTED

The Court should grant certiorari to clarify the type and extent ofminimal due process safeguards that attach to clemency

proceedings.

For present purposes, the state does not challenge the district courts factual

finding of state interference. It accepts the district courts 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

claimwhich it did under prevailing Eighth Circuit precedent until today. SeeYoung 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.).

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,

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id., but the degree of fairness it must afford remains unclear. The controlling

authority is Justice OConnors concurrence in Ohio Adult Parole Authority v. Woodard,

523 U.S. 272 (1998). Justice OConnor opined that some minimalprocedural

safeguards apply to clemency proceedings. Id.at 289 (emphasis in original). As

examples of proceedings that might fail this standard, Justice OConnor 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 OConnors 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 prisoners guilt, only to be informed that clemency

was denied because no such evidence was presented. The Ninth Circuit upheld the

district courts grant of a temporary restraining order on the prisoners execution, and

it held that the allegations stated a viable due process claim. Wilson, 161 F.3d at

1186-87; accordLewis 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

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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 courts dismissal of the suit and stayed the prisoners

execution. It reasoned that a state agent had deliberately interfered with the

prisoners 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 Wilsonand Youngwere merely limitedin their

clemency effortsfor example, by the States 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 (OConnor, J.,

concurring). Yet, both stated valid due process claim, and both obtained stays of

execution.

By contrast, the Fifth Circuit follows a more restrictive view, under which

Justice OConnors 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 Fauldera

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,

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and failed to explain its decisions. The Fifth Circuit found no due process violation.

It recited Justice OConnors two examples, and it observed that Faulders clemency

procedures exhibited neither of these extreme situations. Id.at 344-45. The Fifth

Circuit continues to enforce Fauldertoday. See Tamayo v. Perry, 553 Fed. Appx 395,

400-01 (5th Cir. 2014); accordAruanno v. Corzine, No. 07-5270 (AET), 2007 WL

4591378 at *5 (D.N.J. Dec. 28, 2007) (rejecting prisoners 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. Winfields due process claim. If the

Fifth Circuits 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 Circuits view in Youngand

the Ninth Circuits opinion in Wilsonrecognize 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 [Missouris] clemency process. Woodard, 523 U.S. at 289 (OConnor, J.,

concurring). And yet, the more permissive post-Woodardlaw 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

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created, the states 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.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

/s/ Joseph W. LubyJoseph W. Luby, Mo. Bar 48951Jessica Sutton, Mo. Bar 63600

Death Penalty Litigation Clinic6155 Oak Street, Suite CKansas City, MO 64113816-363-2795

Attorneys for Petitioner John E. Winfield

winfield - scotus cert petition

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