                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    June 17, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                           FOR THE TENTH CIRCUIT


    RONNIE LEE GARDNER,

               Plaintiff-Appellant,

    v.                                                  No. 10-4106
                                                (D.C. No. 2:10-cv-00537-TC)
    CURTIS GARNER, Chairman,                              (D. Utah)
    Utah Board of Pardons and Parole;
    CLARK A. HARMS, Vice-Chairman,
    Utah Board of Pardons and Parole;
    JESSE GALLEGOS, Member, Utah
    Board of Pardons and Parole; IRIS E.
    HEMENWAY, Member Pro Tempore,
    Utah Board of Pardons and Parole;
    DONALD E. BLANCHARD, Member
    Pro Tempore, Utah Board of Pardons
    and Parole; MARK L. SHURTLEFF,
    Utah Attorney General,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *




*
      Counsel for Mr. Gardner has informed the court that he stands on the
argument set out in the application for stay submitted in conjunction with this
appeal and will not be filing a separate appellate brief. Upon consideration of the
application and associated materials, this court has determined that oral argument
would not materially assist the determination of this appeal. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G). The case is therefore submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. Ap. P. 32.1 and
10th Cir. R. 32.1.
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.



      Plaintiff Ronnie Lee Gardner is a death row inmate scheduled for execution

by the State of Utah on June 18, 2010. He brought this action in district court

under 42 U.S.C. § 1983 to challenge the procedural propriety of his clemency

proceeding before the Utah Board of Pardons and Parole (“Board”), which has

denied his application for commutation of sentence. In connection with this

§ 1983 action, Mr. Gardner also sought a stay of his execution. The district court

denied the stay without resolving the underlying § 1983 action. Mr. Gardner now

appeals that ruling and seeks a stay of execution pending appeal. We affirm the

district court’s order and deny a stay pending appeal as moot.

      The complaint, filed prior to the hearing and resolution of his application

for commutation, formally set out six claims, though these fell into just three

substantive categories: (1) the clemency proceeding is tainted by a conflict of

interest, because the Utah Attorney General serves as legal advisor to the Board

while also representing the State in opposing the clemency application, violating

Mr. Gardner’s federal procedural due process and substantive due process rights

(claims one and two), as well as his state due process rights (claim three); (2) the

Board indicated that it would not consider a videotape offered by Mr. Gardner

containing statements from two witnesses, in violation of his federal procedural

due process and state due process rights (claims four and five); and (3) the Board

                                         -2-
has acted so as to deny Mr. Gardner meaningful representation by his federally

appointed counsel, violating his federal right to procedural due process (claim

six). The Board ultimately decided to allow admission of the videotape, mooting

claims four and five. Mr. Gardner’s application for a stay of execution therefore

rested on the due process objection advanced in claims one through three and the

objection regarding meaningful assistance of counsel in claim six.

                 I. Threshold Matters and Standard of Review

      Before reaching the merits of this appeal, we note two threshold procedural

points. First, there is some question whether a § 1983 action is the proper vehicle

for bringing a procedural challenge to state clemency proceedings, or whether,

pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok,

520 U.S. 641 (1997), such an action under § 1983 should be deemed an improper

circumvention of habeas proceedings. Compare Woratzeck v. Arizona Board of

Executive Clemency, 117 F.3d 400, 402-03 (9th Cir. 1997) (upholding use of

§ 1983 for this purpose where, as here, the relief sought would not directly affect

capital sentence but only require state authority to consider clemency under

proper procedures), with Spivey v. State Bd. of Pardons & Paroles, 279 F.3d

1301, 1302-03 (11th Cir. 2002) (deeming use of § 1983 action in this context to

be mere incidental means to primary end of defeating orderly effectuation of

capital sentence and holding habeas to be proper, and hence exclusive, remedy).

This circuit has not definitively addressed the question. We did review on the

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merits a § 1983 action challenging clemency proceedings in Duvall v. Keating,

162 F.3d 1058 (10th Cir. 1998), just as the Supreme Court had recently done in

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998), though in neither

case was the Heck issue expressly considered. In any event, we have held that the

application of Heck to a § 1983 action is not a matter of jurisdiction and hence

need not be resolved where the § 1983 claims may be resolved on the merits. See

Jiron v. City of Lakewood, 392 F.3d 410, 413 n.1 (10th Cir. 2004) (following

Okoro v. Bohman, 164 F.3d 1059, 1061 (7th Cir. 1999)). Particularly given the

exigency of this proceeding, we follow that course here.

      Second, although the underlying § 1983 action has not been resolved, we

have jurisdiction to review the denial of Mr. Gardner’s application for a stay of

execution. The application is the functional equivalent of a motion to temporarily

restrain or preliminarily enjoin his execution, the denial of either of which would

be subject to appellate review given the exigent circumstances, Hamilton v. Jones,

472 F.3d 814, 815 (10th Cir. 2007); Duvall, 162 F.3d at 1062. Other courts as

well have heard similar appeals in just these circumstances without any concern

over fine formalistic distinctions regarding the label applied to the motion seeking

to forestall execution. See, e.g., Parker v. State Bd. of Pardons and Paroles,

275 F.3d 1032, 1033 (11th Cir. 2001) (appeal from denial of motion “for a

temporary restraining order (“TRO”), preliminary injunction, and/or stay of

execution” in action challenging propriety of clemency proceeding); Woratzeck,

                                         -4-
117 F.3d at 402 (appeal from denial of capital offender’s motion “for a temporary

restraining order (“TRO”) and stay of his execution”).

      We review the district court’s order for an abuse of discretion. Hamilton,

472 F.3d at 815. To obtain a stay of his execution, Mr. Gardner had to satisfy all

of the traditional requirements for a stay, “including a showing of a significant

possibility of success on the merits” of his underlying claims. Id. (quotation

omitted). Where the claims are found to be without merit, we will affirm the

denial of the stay. See Duvall, 162 F.3d at 1062. That is the case here.

          II. Merit of Underlying Challenge to Clemency Proceeding

      There is no constitutional right to clemency proceedings. Duvall, 162 F.3d

at 1060 (citing Herrera v. Collins, 506 U.S. 390, 414 (1993)). But a state may

elect to provide such proceedings and, in that event, following “the [Supreme]

Court’s narrowest majority holding [in Ohio Adult Parole Authority v. Woodard,

523 U.S. 272 (1998)], we assume that some minimal level of procedural due

process applies.” Duvall, 162 F.3d at 1061. This “minimal application of the

Due Process Clause only ensures a death row prisoner [1] that he or she will

receive the clemency procedures explicitly set forth by state law, and [2] that the

procedure followed in rendering the clemency decision will not be wholly

arbitrary, capricious or based upon whim, for example, flipping a coin.” Id. at

1060. Further, “our review is limited to analyzing the procedures used during the

clemency proceedings and not the substantive merits of the clemency decision.”

                                         -5-
Id. Applying these standards, we conclude that Mr. Gardner has wholly failed to

demonstrate a cognizable challenge to the clemency proceedings in his case and,

therefore, is not entitled to a stay of execution.

A. Impartial Hearing – Conflict of Interest

       As Mr. Gardner notes, “[o]ffenders are entitled to an impartial hearing

before the Board.” Utah Admin. R. 671-309-1. He claims that this procedural

entitlement was violated by a conflict of interest arising from the dual role played

by the office of the Utah Attorney General (“AG”) with respect to his clemency

proceedings. Specifically, he complains that while one attorney in the AG’s

office, Thomas Brunker, appeared before the Board in opposition to his petition

for commutation, another, Michelle Young, engaged in ex parte communications

with the Board, providing advice with respect to evidentiary and procedural

matters. 1

       The allegations regarding Ms. Young’s contacts with the Board that are set

out in the complaint are fairly innocuous:

       After the pre-hearing conference, Assistant Attorney General
       Michelle Young consulted with [the] Board regarding the rules that

1
       Mr. Gardner’s complaint also appears to object to the bald fact that the AG
provides legal representation for the Board as a general matter. But AGs and
United States Attorneys routinely provide legal representation for courts and
judicial officers, see, e.g., Smith v. U.S. Court of Appeals, 484 F.3d 1281, 1283
(10th Cir. 2007); Switzer v. Coan, 261 F.3d 985, 987 (10th Cir. 2001), without
creating due process problems regarding their prosecutorial activities in the same
jurisdictions. Surely no such problems arise in this regard under the far less
stringent due process standards applicable to clemency proceedings.

                                           -6-
      would be applicable to commutation proceedings. Following this
      ex parte communication, Ms. Young informed Plaintiff’s counsel of
      the applicable rules. When Plaintiff asked the Board for clarification
      of the rules, Michelle Young was the person who responded.

      When Plaintiff asked the Board to reconsider its interim order
      barring the consideration of videotaped statements, Ms. Young
      responded to Plaintiff’s request.

      Based on further ex parte communications with the Board,
      Ms. Young expressed the Board’s desire for additional information
      about Plaintiff’s request.

Complaint at 6. Were we reviewing a judicial proceeding, any ex parte

communications, even of the purely procedural sort described above, would of

course be a matter of concern. But, again, the minimal due process constraints on

clemency proceedings are far more limited. We must focus solely on the Board’s

compliance with its own rules and its avoidance of wholly arbitrary or capricious

action. Here, the very rule Mr. Gardner relies on does “not preclude [ex parte]

contact regarding procedural matters so long as such contact is not for the purpose

of influencing the decision of an individual Board Member on any particular case

or hearing.” Utah Admin. R. 671-309-1 (emphasis added). The allegations

quoted above do not demonstrate a violation of the Board’s rule. Nor do they

reflect action that could be characterized as wholly arbitrary or capricious. Thus

they do not provide the basis for an actionable due process claim.

      We note, however, that in Mr. Gardner’s application for stay of execution,

he ascribed a more active role to Ms. Young: she assertedly “provided legal


                                         -7-
advice to the Board about what procedures to apply to Mr. Gardner’s petition and

what evidence should be considered. Ms. Young had an extensive role in

advising the Board regarding the rules that should be applied to Mr. Gardner’s

commutation proceedings.” 2 Application for a Stay of Execution at 6 (filed

June 14, 2010). But even this assertion fails to identify a single procedural or

evidentiary position taken by the Board as a result of Ms. Young’s advice, much

less how that position played a materially adverse role in the Board’s ultimate

decision. This point is especially salient in light of the Board’s eventual election

to admit the videotaped statements that were the focus of Mr. Gardner’s

pre-hearing evidentiary efforts.

      In short, Mr. Gardner utterly fails to demonstrate any prejudice from the

asserted conflict to his right to an impartial hearing. At most he raises a

theoretical “appearance of impropriety”–a weak predicate for a due process claim

in this extra-judicial context. See Gilreath v. State Bd. of Pardons and Paroles,

273 F.3d 932, 934 (11th Cir. 2001) (emphasizing that “just an appearance of

impropriety would not violate the Federal Constitution’s due process clause in the

2
      Ms. Young submitted an affidavit in the district court that basically just
confirmed the broad assertions made in Mr. Gardner’s application for stay: she
“advised the Board regarding applicable statutes, Board rules, and case law . . .
limited to procedural matters, such as what materials the Board may consider
when determining whether to grant a hearing and/or whether to grant
commutation.” Declaration of Michelle Young at 2. She added that she “never
discussed substantive matters such as whether Mr. Gardner should be afforded a
commutation hearing or whether Mr. Gardner’s commutation petition should be
granted or denied.” Id.

                                         -8-
context of a clemency proceeding”). And even that appearance of impropriety is

greatly attenuated by the fact that the AG set up an internal ethical screen

between lawyers providing advice to the Board and lawyers handling the

adversarial aspect of Mr. Gardner’s commutation proceedings. Mr. Gardner

complains that it appears this screen was not erected until a week after he filed

his petition for commutation (though before the AG filed its response to the

petition), but the alleged contacts between Ms. Young and the Board that he

points to all occurred after that, following the pre-hearing conference. 3 Moreover,

Ms. Young averred that she had been alerted about Mr. Gardner’s imminent

commutation application the day before it was even filed and, as a result, had

thereafter “acted as if a formal conflict screen had been established.” Declaration

of Michelle Young at 2-3. Under the circumstances, we see no basis for an



3
       A petition for commutation must be filed no later than seven days after
issuance of the warrant of execution. Utah Admin. Code R. 671-312-2(1).
It must include “a statement of reasons or grounds” supporting clemency, id.,
R. 671-312-2(4)(b), and “copies of all written evidence upon which petitioner
intends to rely at the hearing along with the names of all witnesses petitioner
intends to call and a summary of their anticipated testimony,” id.,
R. 671-312-2(4)(c). Within seven days of receiving the petition, the State,
through the AG, must file a response with its own designation of witnesses and
testimony. Id., R. 671-312-2(7). The Board then holds “a pre-hearing conference
to identify and set the witnesses to be called, clarify the issues to be addressed,
and take any other action it considers necessary and appropriate to control and
direct the proceedings.” Id., R. 671-312-2(8). The hearing itself is
nonadversarial; cross-examination is not permitted, though “Board may ask
questions freely of any witness, the petitioner, the petitioner’s attorney, or the
State’s attorney.” Id., R. 671-312-2(10).

                                         -9-
actionable due process claim under the minimal constitutional standard applicable

in the clemency context.

B. Denial of Meaningful Representation of Counsel

      The primary basis for Mr. Gardner’s initial claim that the Board had acted

in a way that undermined the effectiveness of his counsel derived from the

anticipated exclusion of the videotaped witness statements. Thus, when the Board

ultimately elected to admit those statements, this claim lost much of its factual

substance. In his application for stay of execution, Mr. Gardner was left to argue

in rather vague and perfunctory terms that the belated notice that he would be

allowed to offer the statements, the day before the clemency hearing, interfered

with counsel’s ability to prepare for the hearing. Given counsel’s familiarity with

the evidence, which he developed, this is a decidedly weak factual premise for a

claim regarding ineffective representation. 4 In addition, and in any event,

relevant legal principles foreclose an actionable challenge to his clemency

proceeding premised on the inadequacy of his legal representation. 5

4
       We would also point out that although the time periods allotted for the
preparation of a clemency case following issuance of the order of execution are
fairly short, the undeniable reality of the situation is that eventual recourse to this
procedure is a fact on the procedural horizon long before the execution process
commences.
5
       We note that the statutes and rules governing Utah’s clemency procedures
do not expressly grant a right to counsel, nor have we been made aware of any
other state authority recognizing such a right. But Mr. Gardner’s federal habeas
counsel are authorized to represent him in clemency matters pursuant to 18 U.S.C.
                                                                     (continued...)

                                         -10-
      The constitutional right to the effective assistance of counsel does not

extend beyond direct appeal, even if state law provides for the appointment of

counsel in post-conviction proceedings. Thomas v. Gibson, 218 F.3d 1213, 1222

(10th Cir. 2000) (following Coleman v. Thompson, 501 U.S. 722, 752 (1991)).

The right is not extended beyond its limited confines, under the principle of a

“state-created interest,” when by statute or rule prisoners must be afforded

representation in post-conviction matters. The Eighth Circuit cogently explained

why in Simpson v. Norris, 490 F.3d 1029 (8th Cir. 2007). Drawing on the

Supreme Court’s holding in Pennsylvania v. Finley, 481 U.S. 551 (1987), that

counsel need not, as a matter of due process, follow Anders 6 procedures when

withdrawing from post-conviction representation, the Eighth Circuit explained:

              The [Finley] Court held that the Anders requirements were
      based on an indigent defendant’s . . . right to counsel in a first appeal
      and that those requirements did not apply to the defendant since there
      was no constitutional right to counsel in a collateral attack on a
      conviction. The Court rejected the contention that a “right to
      counsel” created by a state gives rise to a constitutional guarantee:
      “[I]t is the source of the right to a lawyer’s assistance, combined
      with the nature of the proceeding, that controls the constitutional
      question. In this case, respondent’s access to a lawyer is the result of
      the State’s decision, not the command of the United States
      Constitution.” Finley, 481 U.S. at 555-56, 107 S.Ct. 1990. The
      Court further explained that “the State has made a valid choice to
      give prisoners the assistance of counsel [in post-conviction
      proceedings] without requiring the full panoply of procedural

5
 (...continued)
§ 3599(a)(2), (e), as construed in Harbison v. Bell, 129 S. Ct. 1481 (2009).
6
      Anders v. California, 386 U.S. 738 (1967).

                                        -11-
      protections that the Constitution requires be given to defendants who
      are in a fundamentally different position-at trial and on first appeal
      as of right.” Id. at 559, 107 S.Ct. 1990. The Supreme Court has thus
      left little doubt as to its view that a state’s decision to grant a right
      to counsel in post-conviction proceedings does not give rise to a due
      process claim if counsel performs deficiently.

Simpson, 490 F.3d at 1033-34 (emphasis added).

      Against this background, we cannot say that the availability of federally

funded habeas counsel to represent a capital offender in clemency proceedings

affords a constitutional platform from which to launch a collateral due process

challenge to such proceedings on the basis of the effectiveness of counsel’s

representation. 7 Nor do the rules governing Board procedures provide a right to

counsel that might underwrite such a challenge. See supra note 5. Thus, the legal

foundation for Mr. Gardner’s claim here is as deficient as its factual basis.

C. Substantive Due Process and State Constitutional Provisions

      Mr. Gardner has not demonstrated a concrete material difference, under the

circumstances of this case, between the federal and state constitutional provisions

summarily invoked in his complaint. Given that omission, the Utah courts would

not proceed beyond the federal analysis–under which his claims fail–in resolving

his pendent state constitutional claims. See State v. Kohl, 999 P.2d 7, 12 n.3

7
       The authorities discussed above address the inapplicability of ineffective
assistance principles in post-conviction proceedings, rather than in clemency
proceedings per se. But we see no basis for holding that the latter–which involve
discretionary executive acts rather than the judicial resolution of legal objections,
Duvall, 162 F.3d at 1061–implicate any greater, rather than lesser, constitutional
basis for recognition of claims relating to the effective assistance of counsel.

                                         -12-
(Utah 2000); Color Country Mgmt. v. Labor Comm’n, 38 P.3d 969, 974

(Utah App. 2001). Nor will we. 8 He has also not explained how substantive due

process principles would even apply to, much less bolster, the clearly procedural

objections raised in this action.

                                    III. Conclusion

      There is no merit to the claims asserted in the underlying § 1983 action

challenging the procedures followed in Mr. Gardner’s state clemency proceeding.

In light of that fundamental deficiency, Mr. Gardner’s associated application for a

stay of his execution was also meritless and the district court did not abuse its

discretion in denying the application.

      Accordingly, we AFFIRM the district court’s order denying a stay of

execution. 9 In light of that disposition we DENY as moot Mr. Gardner’s motion

for a stay of execution pending resolution of this appeal. The mandate shall issue

forthwith.


                                            ENTERED FOR THE COURT
                                            PER CURIAM


8
       We also note in this regard that Mr. Gardner had the option to challenge the
procedural propriety of the clemency proceedings in the Utah courts by way of a
state habeas action, see Preece v. House, 886 P.2d 508, 512 (Utah 1994), but did
not pursue this available state remedy.
9
       Pursuant to Fed. R. App. P. 35, the panel circulated this decision to the
active judges of the court for sua sponte consideration of whether en banc review
was necessary. See Hamilton, 472 F.3d at 815 n.1. No active judge called for a
poll.

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