State ex rel. Governor Michael L. Parson, Relator v. The Honorable Cotton Walker

SUPREME COURT OF MISSOURI

en banc

STATE OF MISSOURI EX REL. ) Opinion issued June 4, 2024

GOVERNOR MICHAEL L. PARSON, )

)

Relator, )

)

v. ) No. SC100352

)

)

THE HONORABLE S. COTTON )

WALKER, )

)

Respondent. )

ORIGINAL PROCEEDING IN PROHIBITION

Marcellus Williams filed a petition for a declaratory judgment alleging Governor

Michael L. Parson lacked authority to rescind an executive order issued by the former

governor that stayed Williams' execution and appointed a board of inquiry pursuant to

§ 552.070. 1 After the circuit court overruled Governor's motion for judgment on the

pleadings, Governor filed a petition for a writ of prohibition to bar the circuit court from

taking further action other than sustaining the motion for judgment on the pleadings and

denying Williams' petition for declaratory judgment. Governor is entitled to judgment on

the pleadings as a matter of law because the Missouri Constitution vests the governor with

1

All statutory citations are to RSMo 2016.

exclusive constitutional authority to grant or deny clemency and Williams has no statutory

or due process right to the board of inquiry process. This Court makes permanent its

preliminary writ prohibiting the circuit court from taking further action other than

sustaining Governor's motion for judgment on the pleadings.

Facts and Procedural History

In 1998, Williams fatally stabbed Felicia Gayle while burglarizing her home.

Following a jury trial, the circuit court sentenced him to death for first-degree murder. This

Court affirmed Williams' judgment of conviction and sentence, State v. Williams, 97

S.W.3d 462 (Mo. banc 2003), and the judgment overruling postconviction relief. Williams

v. State, 168 S.W.3d 433 (Mo. banc 2005).

Williams filed a petition for a writ of habeas corpus in federal court. The federal

district court granted relief, but the court of appeals reversed the judgment and denied

habeas relief. Williams v. Roper, 695 F.3d 825, 839 (8th Cir. 2012). The United States

Supreme Court denied Williams' petition for a writ of certiorari. Williams v. Steele, 571

U.S. 839 (2013). This Court set a January 28, 2015, execution date.

On January 9, 2015, Williams filed a petition for a writ of habeas corpus in this

Court. This Court vacated the execution date for additional DNA testing and habeas

proceedings and appointed a special master to ensure complete DNA testing. After

receiving the special master's report, this Court denied Williams' habeas petition. The

United States Supreme Court denied Williams' petition for a writ of certiorari. Williams v.

Steele, 582 U.S. 937 (2017). This Court set an August 22, 2017, execution date.

2

On August 14, 2017, Williams filed another petition for writ of habeas corpus,

which this Court denied. The United States Supreme Court denied Williams' petition for

a writ of certiorari. Williams v. Larkins, 583 U.S. 902 (2017).

On August 22, 2017, the former governor issued Executive Order 17-20 appointing

a board of inquiry pursuant to § 552.070 and staying Williams' execution "until such time

as the Governor makes a final determination as to whether or not he should be granted

clemency." In 2023, Governor issued Executive Order 23-06 rescinding Executive Order

17-20, dissolving the board of inquiry, and removing "any legal impediments to the lawful

execution of Marcellus Williams created by Executive Order 17-20, including the order

staying the execution."

Williams filed the underlying declaratory judgment action alleging four counts:

(1) Executive Order 23-06 violated his due process rights under the state and federal

constitutions by denying his right to "a complete review of his claim of innocence" under

§ 552.070; (2) Executive Order 23-06 violated his federal due process rights under color

of state law; (3) Governor lacked authority to dissolve the board of inquiry before the board

provided Governor with a report and recommendation; and (4) Executive Order 23-06

violated the constitutional separation of powers. 2 Williams also filed discovery requests

with the petition.

2

In the introduction of his declaratory judgment petition, Williams offers a single, conclusory

assertion he is entitled to challenge Governor's dissolution of the board of inquiry under the open

courts provision of the Missouri Constitution. The open courts provision is not at issue because

none of Williams' four counts allege he is entitled to relief thereunder, the circuit court did not

address the open courts provision, and neither party's briefs raise the issue in this Court.

3

Governor filed a motion for judgment on the pleadings and a motion to stay

discovery. Governor's motion for judgment on the pleadings asserted Williams had no

protected due process interest in the clemency process. Governor also asserted Executive

Order 23-06 did not violate § 552.070 and argues Williams’s statutory claim fails as a

matter of law. 3

The circuit court overruled Governor's motion for judgment on the pleadings with

respect to Counts I, II, and III, and stayed discovery for two weeks. 4 The circuit court

concluded Williams had a due process right to demonstrate his innocence based on the

former governor's Executive Order 17-20 appointing the board of inquiry pursuant to

§552.070. The circuit court also concluded Governor had no authority to dissolve the board

of inquiry. Governor filed a petition for a writ of prohibition or mandamus. This Court

issued a preliminary writ of prohibition.

Prohibition

This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, § 4.1.

This Court may issue a writ of prohibition:

(1) to prevent the usurpation of judicial power when a lower court lacks

authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or

abuse of discretion where the lower court lacks the power to act as intended;

or (3) where a party may suffer irreparable harm if relief is not granted.

3

Williams also named Attorney General Andrew Bailey as a defendant. The circuit court sustained

Attorney General's motion to dismiss and removed him as a defendant.

4

The circuit court concluded Williams consented to judgment on the pleadings on Count IV and

did not address his separation of powers claim. Williams asserts, and Governor agrees, that

Williams did not consent to judgment on the pleadings for Count IV. As shown below, Count IV

fails because it is premised on Williams' erroneous claim Executive Order 23-06 violated

§ 552.070.

4

State ex rel. Tyler Techs., Inc. v. Chamberlain, 679 S.W.3d 474, 477 (Mo. banc 2023).

"Prohibition is an appropriate remedy to avoid irreparable harm when the plaintiff's

petition does not state a viable theory of recovery" and the relator is entitled to prevail as a

matter of law. Id. (internal quotation omitted). A "motion for judgment on the pleadings

should be sustained if, from the face of the pleadings, the moving party is entitled to

judgment as a matter of law." Hicklin v. Schmitt, 613 S.W.3d 780, 786 (Mo. banc 2020)

(internal quotation omitted).

Executive Clemency

"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." Herrera v. Collins, 506 U.S. 390, 411-12 (1993) (footnotes omitted). "The

Due Process Clause is not violated where, as here, the procedures in question do no more

than confirm that the clemency and pardon powers are committed, as is our tradition, to

the authority of the executive." Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 276

(1998). Therefore, "[w]hile traditionally available to capital defendants as a final and

alternative avenue of relief, clemency has not traditionally been the business of courts."

Id. at 284 (internal quotation omitted).

The Missouri Constitution enshrines the traditional understanding of clemency by

granting "the governor complete discretion to grant pardons, commutations, and other

5

forms of clemency." State ex rel. Dorsey v. Vandergriff, 685 S.W.3d 18, 31 (Mo. banc

2024). 5 Article IV, § 7 provides:

The governor shall have power to grant reprieves, commutations and

pardons, after conviction, for all offenses except treason and cases of

impeachment, upon such conditions and with such restrictions and

limitations as he may deem proper, subject to provisions of law as to the

manner of applying for pardons. The power to pardon shall not include the

power to parole.

This constitutional text recognizes the governor's clemency power encompasses

three distinct actions: reprieves, commutations, and pardons. A reprieve temporarily stays

the execution of a sentence. Lime v. Blagg, 131 S.W.2d 583, 585 (Mo. banc 1939).

A commutation reduces the severity of a sentence. Id. A pardon relieves an offender from

the consequences of a specific crime. Id.

The distinctly different relief provided by reprieves, commutations, and pardons

entails different limitations on the governor's ability to rescind previously granted

clemency relief. Like a reprieve, "a pardon or commutation is a mere matter of grace[.]"

Reno, 66 Mo. at 269. But unlike the temporary stay of the execution of a sentence granted

by a reprieve, pardons and commutations permanently annul or alter the sentence itself.

5

Since statehood, the Missouri Constitution has vested the governor with exclusive authority to

grant or withhold clemency. See State ex rel. Lute v. Mo. Bd. of Prob. & Parole, 218 S.W.3d 431,

435 (Mo. banc 2007) (quoting Ex Parte Reno, 66 Mo. 266, 269, 273 (1877)) (stating clemency "is

'a mere matter of grace' that the governor can exercise 'upon such conditions and with such

restrictions and limitations as he may think proper'"); Whitaker v. State, 451 S.W.2d 11, 15 (Mo.

1970) (stating "the power of pardon lies in the uncontrolled discretion of the governor"); State ex

rel. Oliver v. Hunt, 247 S.W.2d 969, 973 (Mo. banc 1952) (stating "a pardon issues upon ipse dixit

of the governor" and is "conceived in mercy and is said to be in derogation of law"); Lime, 131

S.W.2d at 586 (explaining the governor's constitutional power to grant reprieves, commutations,

and pardons "is beyond the range of judicial or legislative encroachment"); State v. Sloss, 25 Mo.

291, 294 (1857) (stating the Missouri Constitution vests "the power of pardoning in the chief

executive officer of the state").

6

Once the governor grants a pardon or commutation, therefore, the "act of clemency is fully

performed[,]" and "the grantee … becomes entitled as a matter of right to all the benefits

and immunities it confers, and of which he cannot be deprived by revocation or recall." Id.

By contrast, because "[a] reprieve does not annul the sentence, but merely delays or keeps

back the execution of it[,]" the recipient cannot "complain when such reprieve is revoked."

Lime, 131 S.W.2d at 585. As a temporary, discretionary respite from a sentence, a reprieve

creates no rights and carries only the necessary expectation that the governor may rescind

it any time.

Given the governor's article IV, § 7 clemency power, Executive Order 17-20 was a

reprieve because it expressly stayed Williams' execution "until such time as the Governor

makes a final determination as to whether or not he should be granted clemency." Because

Executive Order 17-20 was a reprieve, Governor was free to rescind it at his discretion.

Lime, 131 S.W.2d at 586 (holding "a mere executive order, in the nature of a reprieve, …

was subject to revocation in the Governor's discretion"). 6

Section 552.070

Against this backdrop of the governor's absolute discretion to grant clemency relief

and rescind a reprieve, Williams alleged in Count III of his declaratory judgment action

that § 552.070 precluded Governor from rescinding Executive Order 17-20 and dissolving

6

The fact a reprieve was issued by a former governor has no bearing on any successive governor's

authority to rescind that reprieve. Irrespective of the individual who momentarily occupies the

office, he or she exercises the article IV, § 1 "supreme executive power … vested in a governor."

Governor necessarily is free to exercise that supreme executive power to rescind a reprieve issued

by himself or any prior governor.

7

the board of inquiry prior to receiving the board's report and recommendations. Section

552.070 provides:

In the exercise of his powers under Article IV, Section 7 of the Constitution

of Missouri to grant reprieves, commutations and pardons after conviction,

the governor may, in his discretion, appoint a board of inquiry whose duty it

shall be to gather information, whether or not admissible in a court of law,

bearing upon whether or not a person condemned to death should be executed

or reprieved or pardoned, or whether the person's sentence should be

commuted. It is the duty of all persons and institutions to give information

and assistance to the board, members of which shall serve without

remuneration. Such board shall make its report and recommendations to the

governor. All information gathered by the board shall be received and held

by it and the governor in strict confidence.

"The goal of statutory interpretation is to give effect to the General Assembly's

intent as reflected in the plain language of the statute at issue." State ex rel. Fitz-James v.

Bailey, 670 S.W.3d 1, 6 (Mo. banc 2023) (internal quotation omitted). This Court avoids

interpretations producing "unreasonable or absurd results." Id. (internal quotation

omitted).

Williams concedes Governor has exclusive power over the final decision whether

to grant clemency but claims Governor lacked authority to make a final clemency decision

without the report and recommendations the board "shall" provide to the governor pursuant

to § 552.070. Williams' argument rests on an inference that the board's statutory obligation

to provide the governor with a report and recommendations limits the governor's

constitutional authority to grant or withhold clemency in a death penalty case. This

argument lacks merit.

The requirement that the board "shall make its report and recommendations to the

governor" imposes an obligation on the board, not the governor. The only obligation

8

imposed on the governor, in addition to the board, is to hold any information gathered by

board in strict confidence. 7 Section 552.070 imposes no other obligation or limitation on

the governor and does not limit Governor's absolute discretion over clemency relief and to

rescind the former governor's reprieve. Adopting Williams' argument that a governor's

appointment of a board pursuant to § 552.070 imposes an indefinite procedural bar to the

final clemency decision would be in derogation of the constitutional clemency power. This

Court avoids interpreting a statute in a way "that would call into question its constitutional

validity." State ex rel. Praxair, Inc. v. Mo. Pub. Serv. Comm'n, 344 S.W.3d 178, 187 (Mo.

banc 2011). Section 552.070 does not limit Governor's authority to rescind Executive

Order 17-20 and order the execution of Williams' lawfully imposed sentence.

Williams also claims § 552.070 authorized Governor to appoint the board but did

not authorize him to dissolve it. Once again, Williams' interpretation of the statute

impermissibly limits Governor's exclusive constitutional clemency power. Adopting

Williams' interpretation means a board of inquiry appointed by a governor to assist with

the exercise of the article IV, § 7 clemency power could prevent that governor, and his or

her successors, from exercising that power by failing to produce a report and

recommendation. Because the discretionary appointment of a board of inquiry pursuant to

§ 552.070 merely facilitates the governor's exercise of the exclusive constitutional

7

In addition to the constitutional reservation of the clemency power to the governor, Williams'

declaratory judgment action and proposed discovery are at odds with the statutory confidentiality

requirement, further demonstrating the likelihood of irreparable harm and necessity of a writ of

prohibition.

9

clemency power, the governor necessarily retains authority to rescind a reprieve or deny

clemency irrespective of the board's action or inaction.

While the General Assembly cannot regulate the governor's ultimate clemency

decision, article IV, § 7 authorizes regulation of "the manner of applying for pardons."

Williams argues § 552.070 is such a law and precludes Governor's rescission of Executive

Order 17-20 and dissolution of the board of inquiry. Construing § 552.070 as a law

regulating the manner of applying for pardons yields the absurdly circular conclusion that

the governor's appointment of a board of inquiry is a pardon application to himself on

behalf of the capital offender. This Court will not construe a statute as requiring an absurd

result. Fitz-James, 670 S.W.3d at 6. The governor's discretionary appointment of a board

of inquiry to gather information to assist his exercise of the article IV, § 7 clemency power

is not a provision "of law as to the manner of applying for pardons." 8

Governor was entitled to judgment on the pleadings with respect to Count III

because Williams' allegations fail as a matter of law to show Governor lacked authority to

rescind the former governor's reprieve and order the execution of Williams' sentence.

Count IV, alleging Executive Order 23-06 violated the separation of powers, fails because

it is premised on Williams' erroneous claim Governor lacked authority to dissolve the board

and order the execution of Williams' sentence.

8

Section 217.800 governs applications for a pardon, commutation, or reprieve. "When prisoners

petition the governor for clemency, the [Missouri Board of Probation and Parole] investigates each

case and submits a report of its investigation, along with its recommendations, to the governor."

Lute, 218 S.W.3d at 435. "The Board must follow the governor's orders as he is granted the sole

authority to commute sentences at his discretion." Id.

10

Due Process

In Counts I and II, Williams alleged Executive Order 23-06 violated his due process

rights under the state and federal constitutions by denying state-created rights under

Executive Order 17-20 and § 552.070, preventing a complete review of his claim of

innocence during the clemency process. Williams further alleged this state-created right

to the board of inquiry process could also create other rights to additional procedures,

"including additional court filings, political pressure on [Governor] to commute his

sentence, and potential action by other members of the executive branch." The circuit court

erroneously declared the law when it concluded Williams alleged a protectible due process

interest in demonstrating his innocence pursuant to Executive Order 17-20 and § 552.070.

"The Fourteenth Amendment's Due Process Clause protects persons against

deprivations of life, liberty, or property; and those who seek to invoke its procedural

protection must establish that one of these interests is at stake." Wilkinson v. Austin 545

U.S. 209, 221 (2005). While "[a] state-created right can, in some circumstances, beget yet

other rights to procedures essential to the realization of the parent right … the underlying

right must have come into existence before it can trigger due process protection." Conn.

Bd. of Pardons v. Dumschat, 452 U.S. 458, 463 (1981). The expectation of clemency relief

from a lawfully imposed sentence is a "unilateral hope" that does not trigger due process

protection. Id. at 465.

Neither Executive Order 17-20 nor § 552.070 provides a state-created right

triggering due process protection. As Executive Order 17-20 illustrates, the board of

inquiry process is initiated at the governor's sole discretion. Section 552.070 serves as an

11

additional, purely discretionary mechanism to assist the executive clemency decision

vested constitutionally with the governor alone. Neither the statute nor Executive

Order 17-20 vested Williams with an existing right triggering due process protection. 9

Governor's executive order dissolving the board and ordering the completion of Williams'

sentence in no way denied Williams access to any process to which he was legally entitled.

Alternatively, Williams argues he alleged a due process interest in his own life under

Justice O'Connor's concurring opinion in Woodard. See Woodard, 523 U.S. at 288

(O'Connor, J., concurring). Williams asserts Justice O'Connor's concurring opinion

governs and establishes he is entitled to at least "minimal" due process protection during

the clemency process.

In Woodard, an inmate sentenced to death challenged Ohio's clemency process. Id.

at 277 (plurality opinion). Like Missouri, Ohio law provided the governor had discretion

to grant or deny clemency. Id. at 276. But unlike §552.070, the Ohio law provided capital

offenders with the right to request an interview and to have a mandatory clemency hearing.

Id. at 276 - 77. The inmate did not challenge those procedures. Id. at 277. Instead, he

claimed Ohio violated due process rights implicit in the state-created procedural rights by

providing short notice and limiting the assistance of counsel. Id.

9

Williams' lack of any existing right under Executive Order 17-20 or § 552.070 disposes of the

circuit court's reliance on District Attorney’s Office for Third Judicial District v. Osborne, 557

U.S. 52 (2009). In Osborne, the Supreme Court held a state law allowing a state court to vacate a

conviction based on clear and convincing, newly discovered evidence of innocence triggered some

due protections that were satisfied in that case. Id. at 68-70.

Unlike the statutory right to seek postconviction relief in state court in Osborne, § 552.070

provides Williams with no right to the initiation or continuation of the board of inquiry process.

12

In a 4-4-1 opinion, the Supreme Court reversed the court of appeals' judgment, and

held the inmate did not show a due process violation. Chief Justice Rehnquist, joined by

three justices, concluded Ohio's clemency laws did not create any procedural or substantive

rights implicating due process. Id. at 285. Justice O'Connor, also joined by three justices,

reasoned an inmate sentenced to death retained a due process life interest requiring some

"minimal" due process protection in the clemency process and decision, but concluded

Ohio's process satisfied that minimal standard. Id. at 290 (O'Connor, J., concurring).

While providing no analytical framework for assessing the contours of minimal due

process, Justice O'Connor illustrated her concern by hypothesizing "[j]udicial intervention

might, for example, be warranted in the face of a scheme whereby a state official flipped a

coin to determine whether to grant clemency, or in a case where the State arbitrarily denied

a prisoner any access to its clemency process." Id. at 289. Finally, writing alone, Justice

Stevens filed an opinion concurring in part and dissenting in part, agreeing Ohio's

procedures must meet minimum due process requirements, but dissenting because he

would have remanded the case to the district court to determine "whether Ohio's procedures

meet the minimum requirements of due process." Ohio Adult Parole Auth. v. Woodard,

523 U.S. 272, 118 S. Ct. 1244, 140 L. Ed. 2d 387 (1998) (Stevens, J., concurring in part

and dissenting in part).

"When a fragmented Court decides a case and no single rationale explaining the

result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that

position taken by those Members who concurred in the judgments on the narrowest

grounds[.]" Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia,

13

428 U.S. 153, 169 n.15 (1976)). Chief Justice Rehnquist's opinion held Ohio's clemency

procedures did not implicate due process. Justice O'Connor's opinion concluded those

procedures triggered "minimal" due process protections against wholly arbitrary clemency

procedures and decision making. A straightforward application of Marks shows Chief

Justice Rehnquist's opinion controls because it is the position taken by those Justices who

concurred in the judgment on the narrowest grounds. 10

Chief Justice Rehnquist's controlling opinion in Woodard acknowledged a capital

offender "maintains a residual life interest," but concluded the "interest in not being

executed in accord with his sentence" does not trigger due process protections in the

executive exercise of clemency authority. Woodard, 523 U.S. at 281. Because any

expectation the discretionary executive clemency process will result in the commutation of

a lawfully imposed death sentence is simply a "unilateral hope[,]" a capital offender retains

no protectible due process interest within the clemency process. Id. at 282 (internal

quotation omitted).

10

Some federal and state courts suggest Justice O'Connor's concurring opinion provides the

Supreme Court's opinion on the specific issue of whether the Due Process Clause applies to

clemency. See, eg., Barwick v. Governor of Fla., 66 F.4th 896, 902 (11th Cir. 2023) (stating

"Justice O'Connor's concurring opinion provides the holding in Woodard"); Duvall v. Keating, 162

F.3d 1058, 1061 (10th Cir. 1998) (holding Justice O'Connor's concurring opinion was the

"narrowest majority holding" and establishes "some minimal level of procedural due process

applies to clemency proceedings"); Foley v. Beshear, 462 S.W.3d 389, 394 (Ky. 2015) (applying

Justice O'Connor's concurring opinion because it is the "narrower holding on the due-process

question"); Bacon v. Lee, 549 S.E.2d 840, 848 (N.C. 2001) (holding "Justice O'Connor's

concurring opinion represents the holding of the Court because it was decided on the narrowest

grounds and provided the fifth vote"). This Court is not bound by "decisions of the federal district

and intermediate appellate courts and decisions of other state courts[.]" Doe v. Roman Cath.

Diocese of St. Louis, 311 S.W.3d 818, 823 (Mo. banc 2010). This Court concludes Chief Justice

Rehnquist's opinion states the applicable law governing due process in discretionary state

clemency proceedings.

14

Chief Justice Rehnquist also concluded Ohio's clemency process did not trigger

additional due process rights. Despite the delegation of some procedural authority to the

parole board, the Ohio governor retained "broad discretion" that, "[u]nder any analysis …

need not be fettered by the types of procedural protections sought by" the inmate. Id.

Unlike judicial proceedings to adjudicate guilt, executive clemency does "not determine

the guilt or innocence of the defendant" and is "independent of direct appeal and collateral

relief proceedings." Id. at 284. Because "[p]rocedures mandated under the Due Process

Clause should be consistent with the nature of the governmental power being invoked[,]"

Ohio's creation of some procedural rights for offenders in the discretionary executive

clemency process did not entail additional due process protections. Id. at 285. Thus, "the

executive's clemency authority would cease to be a matter of grace committed to the

executive authority if it were constrained by the sort of procedural requirements that

respondent urges." Id.

Woodard forecloses Williams' argument he retains a protectible due process interest

during the clemency process following his lawfully imposed death sentence and the

exhaustion of potential state and federal postconviction judicial remedies. Section 552.070

neither creates nor implies any procedural rights for the offender. Williams has nothing

more than a "unilateral hope" for discretionary clemency relief from his lawfully imposed

death sentence. Id. at 280 (quoting Dumschat, 452 U.S. at 465). His argument distills to

a plea for an act of gubernatorial mercy, not a valid argument for recognizing due process

rights in Governor's exercise of the discretionary clemency power. Id. at 285; see also

15

Dorsey, 685 S.W.3d at 31 n.12 (recognizing article IV, § 7 vests the governor with

"absolute discretion over clemency relief"). 11

Conclusion

Section 552.070 cannot and does not limit Governor's clemency power. Williams

alleged no cognizable liberty or life interest triggering due process protections during the

clemency process or restraining Governor's absolute discretion to grant or deny clemency.

Governor is entitled to judgment on the pleadings. The preliminary writ of prohibition is

made permanent.

________________________

Zel M. Fischer, Judge

All concur.

11

Applying Justice O'Connor's "minimal" due process standard does not change the conclusion.

Justice O'Connor's minimal due process standard is premised on wholly arbitrary state action in

both the clemency decision (flipping a coin) and the clemency process (denial of any access).

Woodard, 523 U.S. at 289 (O'Connor, J., concurring). Williams agrees Governor "has the

exclusive power over the final decision whether to grant clemency." His argument focuses on

Governor's dissolution of the board of inquiry prior to it providing a report and recommendations.

Williams' allegations, however, cannot meet Justice O'Connor's standard because he does not

allege facts showing "the State arbitrarily denied a prisoner any access to its clemency process."

Id. To the contrary, Executive Order 17-20 specifically acknowledges "Williams has submitted

an application for clemency and requested appointment of a board of inquiry pursuant to Section

552.070 RSMo[.]" Williams alleges the former governor appointed a board of inquiry and he then

presented "significant information" to the board, which had six years to consider the case before

Governor exercised his constitutional authority to rescind Williams' reprieve. These allegations

do not show an arbitrary denial of "any access" to the clemency process under Justice O'Connor's

"minimal" due process standard.

16