[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 11, 2001
THOMAS K. KAHN
No. 01-16902 CLERK
________________________
D.C. Docket No. 01-03333-CV-RWS
BYRON ASHLEY PARKER,
Petitioner-Appellant,
versus
THE STATE BOARD OF PARDONS
AND PAROLES,
WALTER RAY, Chair, State of
Georgia Board of Pardons and Paroles,
BOBBY K. WHITWORTH,
GARFIELD HAMMONDS, JR.,
DR. BETTY ANN COOK, et al.,
Respondents-Appellees.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(December 11, 2001)
Before EDMONDSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Byron Ashley Parker, scheduled to be executed at 7:00 p.m. on Tuesday,
December 11, 2001, appeals the denial of his motion under Rule 65 of the Federal
Rules of Civil Procedure for a temporary restraining order (“TRO”), preliminary
injunction, and/or stay of execution based on his claim for declaratory relief
pursuant to 42 U.S.C. § 1983. Parker’s claim alleges that, as presently constituted,
the Georgia Board of Pardons and Paroles (the “Board”) is incapable of providing
him with a clemency hearing that comports with the minimal, constitutionally-
required standards of due process that attach to such proceedings. Specifically,
Parker contends that three members of the five-person board are biased and
therefore should be replaced, at least for purposes of his hearing. The alleged
bases for the bias are:
(a) the Chairman of the Board, Walter Ray, has stated that, “No one on
death row [will] ever get clemency as long as [I am] Chairman of the
Board”;
(b) Chairman Ray and Board Member Bobby Whitworth are being
investigated for criminal wrongdoing by the Georgia Attorney
General;
(c) Board Member Eugene Walker has received an ante-litem notice of a
planned sexual harassment lawsuit to be brought by his secretary, in
which, pursuant to the provisions of Georgia Law, he will be
represented by the Georgia Attorney General.
2
In his complaint, Parker disavows any allegation that any member of the
Board of Pardons and Paroles is guilty of any criminal wrongdoing or unethical
conduct, and specifically disavows any allegation that Chairman Ray has ever
manipulated clemency votes in the past. Nonetheless, Parker argues that
Chairman Ray’s alleged statement about no death row inmate getting clemency is
susceptible of implementation because of the unique hidden ballot voting
procedures of the Board.
Under the Board’s procedure, after a clemency hearing, the Members of the
Board retire to their separate offices where they record their votes in private and
transmit them in a sealed envelope to the Chairman. The Chairman then tallies the
votes and reports whether clemency is denied or granted. The individual Board
Members supposedly do not know how one another has voted and do not learn
whether clemency has been granted or denied until the result of the vote is reported
in the media. Because the Chairman is the only Member of the Board who knows
each Member’s votes and because he tallies the votes in secret, Parker argues that
he is in a unique position, if so inclined, to manipulate the result of the vote
without ever being discovered. Thus, Parker contends, it is especially problematic,
from a due process standpoint, for the Chairman of the Board to be biased.
3
Parker argues that Chairman Ray and Board Member Bobby Whitworth are
unable fairly to pass upon his clemency application because they are under
investigation for criminal wrongdoing by the Georgia Attorney General. Parker
contends that because the Georgia Attorney General is the principal advocate of his
execution and because Ray and Whitworth are targets of a criminal investigation,
they have an incentive to curry favor with the Attorney General by adopting the
Attorney General’s “position” with regard to Parker’s execution. Similarly, Parker
argues that because Eugene Walker will be defended by the Attorney General in
the anticipated sexual harassment suit against him, Walker, too, would be inclined
to rule for the “position” of the Attorney General’s office against Parker’s petition
for clemency. We put “position” in quotation remarks because the evidence
appears to be undisputed, and the district court found, that the Georgia Attorney
General, as a general rule, does not appear in clemency proceedings and takes no
position on whether clemency should be granted, and did not do so in this case.
See Gilreath v. State Board of Pardons and Paroles, – F.3d –, 2001 WL 1471657 at
*2 (11th Cir. Nov. 15, 2001).
A TRO or preliminary injunction is appropriate where the movant
demonstrates that:
(a) there is a substantial likelihood of success on the merits;
4
(b) the TRO or preliminary injunction is necessary to prevent irreparable
injury;
(c) the threatened injury outweighs the harm that the TRO or preliminary
injunction would cause to the non-movant; and
(d) the TRO or preliminary injunction would not be averse to the public
interest.
See Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985).1
As to the claimed bias of Chairman Ray and Member Bobby Whitworth
because they are allegedly being investigated by the Attorney General’s Office for
criminal wrongdoing, and as to the claimed bias of Member Eugene Walker
because he is going to be sued for sexual harassment and will be represented by the
Attorney General’s office, Parker is unable to meet the first prong of the test. He
has failed to show that there is a substantial likelihood of success on the merits of
those claims. The reason is that his position in regard to those alleged biases was
specifically addressed and rejected by this Court in Gilreath v. State Board of
Pardons and Paroles, – F.3d –, 2001 WL 1471657 at *2 (11th Cir. Nov. 15, 2001).
1
Gilreath held that similar claims brought in a § 1983 proceeding by another Georgia
death row inmate amounted to a second petition which was barred because the inmate had not
obtained permission to file a second petition as required by 28 U.S.C. § 2244(b)(2) & (3).
However, this Court alternatively denied the claims on the merits. Ray argues that this § 1983
case is different because he brought it before the Board denied him clemency instead of
afterwards, as Gilreath did. We need not decide that issue, because assuming the complaint in
this case is not barred as a second petition, for the reasons we will set out Parker still has not
shown he is entitled to a TRO, a preliminary injunction, or a stay of execution.
5
In Gilreath we stated that:
the district court found that no evidence showed that in Georgia the
attorney general regularly advocates--or, in this case, advocated--for
or against clemency and that no evidence showed that anyone familiar
with Georgia's clemency procedure would believe the state attorney
general's office was an advocate in the clemency proceeding. In
addition, no evidence indicates what result the attorney general might
have wished for this clemency proceeding. No appearance of
impropriety has been established.
Id. Accordingly, there is no error in the denial of Parker’s motion for a TRO or
preliminary injunction on the basis of the claimed bias of Chairman Ray, Member
Bobby Whitworth, and Member Eugene Walker as a result of the investigations of
the first two and the possible representation of the third, by the Attorney General.
Thus, Parker is not entitled to a stay of execution on this basis.
The remaining question is whether Chairman Ray’s alleged statement that
“No one on death row [will] ever get clemency as long as [I am] Chairman of the
Board,” when coupled with his unique control over the voting process as
Chairman of the Board, merits any kind of relief. Parker claims that Ray made this
statement over three years ago to Billy Ray Moore, a parolee whose death sentence
had been commuted by the Board before Ray was on it. (According to Parker,
Moore is one of six Georgia death row inmates to have his sentence commuted in
the past twenty five years, and no one has ever had a death sentence commuted by
a Board that includes any of the present members.) The district court granted
6
Moore’s motion to quash the subpoena requiring Moore to testify regarding his
conversation with Ray on grounds of Fifth Amendment privilege.2 Chairman Ray
did testify, however, denying that he ever made the statement in question.
Nevertheless, the district court, while not making any factual finding, assumed for
the sake of the hearing and ruling that Ray had made the statement in question.
Ray testified, however, that he now has an open mind and listens to every
clemency petition, and the district court credited that testimony. The court ruled
that, assuming Ray had made the statement in question, it was something said three
years ago and not in connection with this case, and Ray had stated in the instant
proceeding that he would give full consideration to the clemency issues that come
before him. In light of those facts, the district court concluded that Ray was not
disqualified, i.e., the failure to replace him in connection with Parker’s clemency
proceeding does not violate Parker’s due process rights.
2
There was no affidavit from Moore himself that Ray had made the statement. However,
one or more people who were not present at the time the statement was supposedly made signed
affidavits that Moore had told them Ray had made the statement to him. Two other people were
actually present at the time Moore and Ray met. One was Moore’s wife; the district court was
told that she could not remember the specifics of the meeting. The other person present was the
Board’s Clemency Director, who was at the hearing in the district court but neither side called
him to testify.
7
A stay of execution is appropriate where there is:
a reasonable probability that four Members of the [Supreme] Court
would consider the underlying issue sufficiently meritorious for the
grant of certiorari or the notation of probable jurisdiction . . .; and
there must be a likelihood that irreparable harm will result if that
decision is not stayed.
Barefoot v. Estelle, 463 U.S. 880, 895 (1983).
Parker argues that, under Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272
(1998) (plurality opinion), the Court’s most recent pronouncement on the
relationship between clemency hearings and the Due Process Clause of the
Fourteenth Amendment, his claims of bias entitle him to a declaration that the
Board is not able to afford him a clemency hearing that comports with due process.
Parker contends that the Supreme Court’s opinion in Woodard demonstrates that
at least four members of the Court “would consider the underlying issue
sufficiently meritorious for the grant of certiorari or the notation of probable
jurisdiction.” Barefoot, 463 U.S. at 895.
In Woodard, the Supreme Court exercised jurisdiction over and addressed a
procedural due process claim involving Ohio's clemency process. See id. at 289-90
(O'Connor, J., concurring) (addressing merits of due process challenge to clemency
procedures). Although the Chief Justice, joined by Justices Kennedy, Scalia, and
Thomas, concluded that the Due Process Clause provides no constitutional
8
safeguards with regard to clemency procedures, a majority of the Court agreed that
because death-sentenced prisoners retain some life interest until execution, “some
minimal procedural safeguards apply to clemency proceedings,” even where the
power to grant clemency is solely entrusted to the executive. Id. at 288-89
(O'Connor, J., concurring). Justice O’Connor concluded that the minimal due
process safeguards that attach to clemency ensure that the procedure followed in
rendering the clemency decision will not be wholly arbitrary, capricious or based
upon whim, for example, flipping a coin. See Woodard, 523 U.S. at 289
(O'Connor, J., concurring). One member of the Court, Justice Stevens, stated that
due process protects against the use of procedures “infected by bribery, personal or
political animosity, or the deliberate fabrication of false evidence . . . .” Id. at 290-
91 (Stevens, J., concurring in part and dissenting in part).
While recognizing that minimal due process guarantees do attach to
clemency proceedings, the district court concluded that Chairman Ray’s
statement–even assuming that it was actually made –could not disqualify Ray from
ever again hearing a clemency application in a capital case. The court based that
conclusion on the fact that the statement, if actually made, was made
approximately three years before the present date, a long enough period to allow
Mr. Ray to reevaluate his position so that he could now fairly review Parker’s
9
clemency application, and the fact (based upon his testimony which it credited)
that Ray now has an open mind and listens to all of the clemency cases that come
before him prior to voting on them. We cannot say that the district court, which
observed Ray as he testified and made a credibility determination, erred in reaching
this conclusion.3 It follows that we cannot say the district court erred in
concluding Parker had failed to make a substantial showing of success on the
merits, nor can we say there is any reasonable probability that four members of the
Supreme Court would grant review in this case.
Accordingly, the district court’s denial of Parker’s motion for a TRO,
preliminary injunction, and/or stay of execution is AFFIRMED.
3
Because the district court credited Ray’s testimony about having an open mind on death
sentence clemency matters, it did not feel compelled to decide what the outcome of this case
would be if he had a closed mind about them. Nor do we feel compelled to address that issue.
10
BARKETT, Circuit Judge, specially concurring:
The district court’s conclusion in this case is based on its acceptance of
Chairman Ray’s testimony that “I have an open mind and I listen to every one of
them.” Because I cannot say that the Court’s acceptance of this testimony was
clear error, I concur in the majority’s decision. However, I am deeply troubled by
the unusual nature of the court’s conclusion. On the one hand, the district court
assumed, for purposes of decision, that Chairman Ray made the statement that “No
one on death row [will] ever get clemency as long as [I am] Chairman of the
Board.” But it did not so find as a fact. At the same time, the court found that
Ray, who denied ever making the statement, was credible when he said that he
could now entertain clemency petitions from death row inmates with an open mind.
As it stands, the court has effectively assumed that Ray lied when he said he never
made the initial statement, but was sincere when he said he could be neutral. It is
troubling that the district court did not explore the question of Ray’s openness in
light of questions involving his assumed original bias.
11