Edward Schad, et al v. Janice Brewer, et al

Filing

FILED PER CURIAM OPINION (MARY M. SCHROEDER, STEPHEN R. REINHARDT and SUSAN P. GRABER) The district court s order denying the preliminary injunction is AFFIRMED. The request for stay of execution pending a new clemency hearing is DENIED. FILED AND ENTERED JUDGMENT. [8812354]

Case: 13-16978

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ID: 8812354

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FILED
FOR PUBLICATION
UNITED STATES COURT OF APPEALS

OCT 07 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD HAROLD SCHAD,
Plaintiff - Appellant,

No. 13-16978
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.

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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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