John J. Joubert v. Neb. Bd. of Pardons

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No. 96-2688
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John J. Joubert, *
*
Appellant, *
*
v. *
*
Nebraska Board of Pardons, *
Donald B. Stenberg, Attorney *
General of the State of *
Nebraska, individually and in * Appeal from the United States
his official capacity; * District Court for the District
E. Benjamin Nelson, Governor * of Nebraska.
of the State of Nebraska, *
individually and in his *
official capacity; *
Scott A. Moore, Secretary of *
State of the State of Nebraska, *
individually and in his *
official capacity; *
Frank X. Hopkins, Warden of *
the Nebraska State *
Penitentiary, individually *
and in his official capacity, *
*
Appellees. *
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Submitted: June 27, 1996

Filed: June 27, 1996
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Before BEAM, BRIGHT, and LOKEN, Circuit Judges.
___________

BEAM, Circuit Judge.

John J. Joubert appeals the district court's1 order denying temporary
and permanent injunctive relief under 42 U.S.C. § 1983, based on alleged
constitutional violations relating to the

1
The Honorable William G. Cambridge, Chief Judge, United
States District Court for the District of Nebraska.
procedures, conduct, and makeup of the Nebraska Board of Pardons (Board).
We affirm the district court and deny Joubert's emergency application for
an injunction pending appeal.

I. BACKGROUND

Joubert, currently in the custody of the State of Nebraska under two
sentences of death for murdering two boys in 1983, is scheduled to be
executed at 12:01 a.m. CDT on June 28, 1996. The facts of Joubert's case
and his various legal challenges can be found in other opinions including
Joubert v. Hopkins, 75 F.3d 1232 (8th Cir. 1996) and thus we need not fully
recount them here.

At 4:15 p.m. on June 26, 1996, the Board unanimously denied, without
a hearing, Joubert's application for commutation of his capital sentences
and dissolved the previously issued stay of execution triggered by the
application. Prior to the Board's decision, Joubert filed this section
1983 action in federal district court, seeking a temporary restraining
order and preliminary injunction prohibiting his execution until the merits
of his complaint were decided. Joubert's section 1983 claim alleged three
constitutional violations. First, he asserted that the Board failed to
comply with the requirement that Joubert's commutation application "shall
be considered" under Neb. Rev. Stat. § 83-1,129(2) (Reissue 1994), and thus
violated his procedural due process rights as guaranteed by the Fifth and
Fourteenth Amendments to the United States Constitution. Second, Joubert
contended that the Board failed to comply with its own procedural
provisions, as set out in Rule 004.05 of the Nebraska Pardons Board Policy
and Procedure Guidelines, by attempting to limit the testimony presented
in the event a hearing were granted thereby violating his procedural due
process rights. Third, Joubert argued that the makeup of the Board, which
included the Attorney General of the

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State of Nebraska (A.G.),2 violated Joubert's substantive due process
rights under the Fifth and Fourteenth Amendments because the A.G.'s dual
role as prosecutor and arbiter rendered the clemency process fundamentally
unfair. Joubert also asserted that the A.G.'s participation violated
Joubert's Eighth Amendment right to be free from cruel and unusual
punishment.

The district court dismissed Joubert's complaint and denied his
motion for a temporary restraining order. The district court entered its
order prior to the Board's decision to deny Joubert's commutation
application. After concluding it had jurisdiction, the district court held
that Joubert failed to demonstrate the violation of a constitutional right,
a requirement in a section 1983 claim. Joubert appeals the district
court's order and requests an injunction prohibiting his execution until
the merits of his appeal are decided.

II. DISCUSSION

On appeal, Joubert makes the same three arguments that he made to the
district court. We first address Joubert's assertion that the Board
violated his procedural due process rights by failing to consider his
commutation application. It is well-established that prisoners have no
constitutional or fundamental right to clemency. Connecticut Bd. of
Pardons v. Dumschat, 452 U.S. 458, 463-64 (1981); Otey v. Stenberg, 34 F.3d
635, 637 (8th Cir. 1994). Moreover, "`[w]hen a commutation statute does
not impose standards constraining the discretion of the board as to when
clemency must be granted, the statute does not create a constitutional
right or entitlement sufficient to invoke the Due Process Clause.'" Otey
v. Stenberg, 34 F.3d at 637 (quoting Whitmore v. Gaines, 24 F.3d 1032,

2
The Board currently consists of three members: Governor E.
Benjamin Nelson; Secretary of State Scott A. Moore; and Attorney
General Donald B. Stenberg. Neb. Rev. Stat. § 83-1,126 (Reissue
1994); see also Neb. Const. art. IV, § 13.

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1034 (8th Cir. 1994)). Such is the case here. The Nebraska statute
governing the operation of the Board gives the Board "unfettered discretion
to grant or deny a commutation of a lawfully imposed sentence for any
reason or for no reason at all." Otey v. State, 485 N.W.2d 153, 166 (Neb.
1992). The Nebraska statute requires only that an application requesting
the Board to exercise its pardon authority "shall be considered with or
without a hearing by the board at its next regular scheduled meeting."
Neb. Rev. Stat. § 83-1,129(2) (Reissue 1994). Therefore, the only interest
created by the Nebraska statute is "the right to ask for mercy." Otey v.
Stenberg, 34 F.3d at 637 (emphasis added).

Joubert asserts that the Board did not actually consider his
commutation application because its members were predisposed to deny it.
To support this assertion, Joubert relies upon various statements made by
Board members to the media, in which they expressed skepticism as to the
likelihood of granting Joubert's commutation application or request for a
hearing. Although these statements might reflect the members'
predisposition, such predisposition does not mean that the members failed
to fulfill their statutorily imposed duty to consider the application. On
June 26, 1996, the Board did in fact consider Joubert's application and
decided to deny it without a hearing. Such action is within the Board's
discretion. Furthermore, we are bound by our prior decision in Otey v.
Stenberg in which we determined that the Nebraska clemency statute "does
not create a protectable interest in the manner in which the Board receives
[a] request or in having unbiased decisionmakers on the Board." Id. If
the Nebraska clemency statute does not create an interest in having
unbiased decisionmakers on the Board, it certainly does not create an
interest in having a commutation application considered by Board members
without predispositions about the prisoner's likelihood of

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success.3 We conclude, therefore, that the Board met its statutorily
imposed duty to consider Joubert's commutation application and thus he has
failed to demonstrate a violation of any constitutionally protected
interest on which to base his section 1983 claim.

Joubert next contends that a member of the Board violated his
procedural due process rights by seeking to limit the testimony presented
to the Board in the event a hearing were granted. Since we have already
determined that no procedural due process right accrues, this contention
is without merit. In any event we note that Joubert points to Rule 004.05
of the Nebraska Pardons Board Policy and Procedure Guidelines which states
that an applicant sentenced to death "shall receive three hours for
presentation of information and argument to the Board." This rule,
however, only applies if the Board decides to grant a hearing. In the
present case, the Board denied Joubert's request for a hearing and thus
Rule 004.05 is inapplicable. Moreover, Joubert's argument is speculative,
at best, because a hearing was never held. Furthermore, even if a hearing
had been held, we have no way of knowing whether the full Board would have
adopted that member's recommendations and limited the testimony.
Therefore, Joubert's section 1983 claim fails because he did not establish
a right deserving of constitutional protection, given that no hearing was
held.

Finally, Joubert contends that the participation of the A.G. in the
clemency process violates Joubert's substantive due process rights because
the A.G. served in dual roles of both prosecutor and arbiter. This
argument fails, however, in light of our prior

3
Joubert's attempt to distinguish Otey v. Stenberg from the
present case on the ground that, unlike Joubert, Otey was given a
hearing before his application was denied lacks merit because the
Board may deny the application "with or without a hearing." Neb.
Rev. Stat. § 83-1,129(2) (Reissue 1994).

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decision in Otey v. Stenberg, in which we held that due process never
attached to clemency proceedings because the only right created under
Nebraska law, which does not impose any limits or standards on the Board,
is the right to ask for clemency. 34 F.3d at 637-38. As noted above,
Joubert has no right to a Board consisting of unbiased decisionmakers. Id.
at 637. Therefore, Joubert's section 1983 claim based on this alleged
substantive due process violation also fails. We have considered Joubert's
remaining arguments, including his Eighth Amendment claim, and find them
to be without merit.

III. CONCLUSION

Because Joubert failed to prove that the Board's conduct,
proceedings, or makeup violated a constitutionally protected right, his
section 1983 claim must fail. Accordingly, we affirm the district court's
order and deny Joubert's emergency application for an injunction pending
appeal.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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