dissenting.
I would grant the motion to vacate the stay of execution, and therefore I respectfully dissent.
This is Otey’s third federal habeas petition. He does not challenge the validity of his conviction or sentence. Rather, he attacks only the Nebraska commutation proceeding that resulted in the denial of his request for commutation of his death sentence to a sentence of life imprisonment. The District Court, and a majority of this panel, believe a stay is required so that unspecified facts regarding Otey’s claims may be developed. Before deciding whether a factual record needs to be developed, however, we must first address the threshold question, which is a purely legal issue: Does the Due Process Clause apply to the Nebraska commutation proceeding? The answer to this question is no.
“The Governor, Attorney General and Secretary of State, sitting as a board, shall have power to ... grant ... commutations in all cases of conviction for offenses against the laws of the state, except treason and cases of impeachment.” Neb. Const., art. IV, § 13. In the words of the Nebraska Supreme Court,
[i]n Nebraska, as a matter of law, the judicial branch of government has no jurisdiction to review the granting or denial of clemency in a death sentence case by the Board of Pardons. Article IV, § 13, of the Nebraska Constitution states, in part, that “[t]he Governor, Attorney General and Secretary of State, sitting as a board, shall have power to remit fines and forfeitures and to grant respites, reprieves, pardons, or commutations in all cases of conviction for offenses against the laws of the state, except treason and cases of impeachment.” We have long held that the exercise of clemency authority “is not a right given for a consideration to the individual by the legislature, but a free gift from the supreme authority, confided to the chief magistrate, and to be bestowed according to his own discretion.”
In short, the Nebraska Board of Pardons has the unfettered discretion to grant or deny a commutation of a lawfully imposed sentence for any reason or for no reason at all.
A review of Nebraska’s Constitution, statutes, and procedures reveals that no right has been conferred upon Otey beyond the right to seek a commutation. He was afforded this right.
Otey v. State, 485 N.W.2d 153, 163, 166 (Neb.1992) (emphasis and citations omitted) (per curiam). This discretionary, standard-less executive power does not give rise to due process protections to those who wish to have their commutation request granted. The Supreme Court said as much in Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 466-67, 101 S.Ct. 2460, 2465-66, 69 L.Ed.2d 158 (1981):
[The] commutation statute, having no definitions, no criteria, and no mandated “shalls,” creates no analogous duty or constitutional entitlement.... [T]he mere existence of a power to commute a lawfully imposed sentence, and the granting of commutations to many petitioners, create no right or “entitlement.” ... We hold that the power vested in the [Board of Pardons] to commute sentences conferred no rights on respondents beyond the right to seek commutation.
Otey does not claim that he was denied the right to seek commutation; only that *214the commutation process was flawed. However, Nebraska’s commutation procedures do not “trigger[] the requirements of Fourteenth Amendment procedural due process.” Spinkellink v. Wainwright, 578 F.2d 582, 619 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979);1 see also Bundy v. Dugger, 850 F.2d 1402, 1424 (11th Cir.1988) (no liberty-interest present when clemency decision “is wholly a matter of executive discretion”), cert. denied, 488 U.S. 1034, 109 S.Ct. 849, 102 L.Ed.2d 980 (1989); Artway v. Pallone, 672 F.2d 1168, 1180-81 (3rd Cir.1982) (standards for parole eligibility do not trigger Due Process protections).2 Since Otey’s claims are not the proper subject of a habe-as petition, an evidentiary hearing or further factual development of any kind is unnecessary, and the motion to vacate the stay of execution should be granted.
. The issue decided in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), is virtually identical to the one presented here. In both instances, the state constitution conferred an unfettered right to the executive branch to grant clemency, and the habeas petitioner challenged the denial of clemency because, inter alia, the state attorney general defended the underlying death sentence and served in the clemency review process. In Spinkellink, the Fifth Circuit held that clemency decisions which are not statutory rights but acts of grace do not implicate any liberty interests within the meaning of the Due Process Clause. Spinkellink, 578 F.2d at 618-19.
. The cases cited by the majority are inapposite. Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and Burnside v. White, 760 F.2d 217 (8th Cir.), cert. denied, 474 U.S. 1022, 106 S.Ct. 576, 88 L.Ed.2d 559 (1985), were both habeas challenges to state executive proceedings that were governed by statutory standards limiting the decision-maker’s discretion. Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), and Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), involved habeas challenges to state judicial proceedings.