Edward Schad v. Charles Ryan

FILED

FOR PUBLICATION OCT 07 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD HAROLD SCHAD, No. 13-16978

Plaintiff - Appellant, D.C. No. 2:13-cv-01962-ROS

and

OPINION

ROBERT GLEN JONES, JR.,

Intervenor-Plaintiff,

v.

JANICE K. BREWER, Governor of the

State of Arizona, in her official capacity;

SCOTT SMITH, Chief of Staff to

Governor Brewer, in his official capacity;

BRIAN LIVINGSTON, Chairman and

Executive Director, Arizona Board of

Executive Clemency; JACK LASOTA,

Member, Arizona Board of Executive

Clemency, in his official capacity, AKA

John Jack Lasota; ELLEN

KIRSCHBAUM, Member, Arizona Board

of Executive Clemency, in her official

capacity; DONNA HARRIS, Member,

Arizona Board of Executive Clemency, in

her official capacity,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, Senior District Judge, Presiding

Submitted October 7, 2013*

San Francisco, California

Before: SCHROEDER, REINHARDT, and GRABER, Circuit Judges.

Per Curiam:

Plaintiff-Appellant Edward Schad is scheduled to be executed on October 9,

2013, in Arizona for the 1978 murder of Lorimer Grove. His efforts to reopen the

district court’s 2006 habeas judgment by invoking Federal Rule of Civil Procedure

60(b) have been the subject of another appeal, No. 13-16895, in a separate district

court action. In our opinion, we affirmed the district court’s denial of relief and

recounted the long history of this litigation. Schad v. Ryan, No. 13-16895, 2013

WL 5498094, at *1-2 (9th Cir. Oct. 4, 2013).

Schad filed this action in district court prior to his clemency hearing, which

took place on October 2, 2013. He unsuccessfully sought to enjoin the hearing and

to stay his execution, claiming that the Clemency Board was biased and subject to

undue pressure by the Governor in violation of due process. The Clemency Board

in Arizona is appointed by the Governor and issues recommendations to the

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

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Governor. The Governor may grant clemency only when the Board recommends

it. Ariz. Rev. Stat. § 31-402(A).

The Supreme Court has never recognized a case in which clemency

proceedings conducted pursuant to a state’s executive powers have implicated due

process. One opinion has suggested that due process concerns might be implicated

in a situation in which the clemency proceeding’s outcome is wholly arbitrary, as

would be the case if clemency were determined by a coin toss. Ohio Adult Parole

Auth. v. Woodward, 523 U.S. 272, 289 (1998) (O’Connor, J., concurring). Bribery

or other corrupt practices have also been suggested as grounds to bring state

executive clemency proceedings under federal scrutiny. Id. at 290-91 (Stevens, J.,

dissenting). Schad recognizes the high threshold he faces to prevail, as did the

district court in denying the request for injunctive relief.

The district court held an evidentiary proceeding in which it heard testimony

from current and former members of the Board. The district court found that the

current members of the board testified credibly that no pressure from the Governor

was ever exerted upon them to vote against clemency. Former members of the

Board also testified that they were not instructed to vote a particular way, and the

district court also found their testimony credible. Former members of the Board

who recommended clemency in a particular case, however, were not reappointed,

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and the district court took that fact into account in reaching its decision. The court

held that the evidence was not sufficient to raise due process concerns under the

applicable standards.

Schad then filed a Federal Rule of Civil Procedure 59 motion contending

that one of the witnesses may have testified falsely in describing the contents of a

letter the witness thought may have come from within the Governor’s office.

When that letter was produced, it showed that it was written by the Board itself and

did not support an inference that pressure from the Governor’s office was brought

on any Board member. The district court denied the motion.

In this appeal, Schad contends the district court’s credibility findings were

clearly erroneous. The record fully supports the district court’s findings and there

is no basis to disturb its credibility determinations.

Schad also contends the standards for issuing an injunction were met. See

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). He contends that

there remain serious questions as to the fairness of the Board’s proceedings. The

record and the district court’s well-reasoned decision do not support this

contention. The district court did not abuse its discretion in denying an injunction.

The district court’s order denying the preliminary injunction is AFFIRMED.

The request for stay of execution pending a new clemency hearing is DENIED.

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COUNSEL

Kelley J. Henry, Assistant Federal Public Defender, Nashville, Tennessee; and

Denise Irene Young, Law Office of Denise I. Young, Tucson, Arizona, for

Petitioner-Appellant Edward Harold Schad.

Timothy M. Gabrielsen, Assistant Federal Public Defender, Tucson, Arizona, for

Intervenor-Plaintiff, Robert Glen Jones, Jr.

Kelley Elaine Gillilan-Gibson and Brian Patrick Luse, Assistant Attorneys

General, Phoenix, Arizona, for Defendant-Appellees.

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