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US Court of Appeals Click icon to view Opinion:

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETE WILSON, Governor of the
State of California, ARTHUR
CALDERON, Warden of California
State Prison at San Quentin,
Defendants-Petitioners,
                                                     No. 98-71334
v.
                                                     D.C. No.
                                                     C98-4417-MMC
THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN
                                                     OPINION                                      
DISTRICT OF CALIFORNIA,
Respondent,


JATURUN SIRIPONGS,
Real Party in Interest.


Petition for Writ of Mandamus to the
United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding


Submitted November 16, 1998

Filed November 16, 1998

Before: Mary M. Schroeder, Harry Pregerson, and
Ferdinand F. Fernandez, Circuit Judges.


Opinion by Judge Schroeder;
Dissent by Judge Fernandez


                               13103


SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1998 by West Group.
_________________________________________________________________


Criminal Law and Procedure/Capital Cases

The court of appeals denied a petition for a writ of manda-
mus. The court held that a state governor's failure to notify
capital defense counsel on the scope of issues to be consid-
ered in a clemency hearing violates due process.


While awaiting execution for two murder convictions, real
party in interest Jaturun Siripongs notified petitioner Pete
Wilson, the Governor of California, that he intended to seek
clemency. The Board of Prison Terms conducted a clemency
hearing on November 9, 1998. The Governor received the
Board's recommendation that afternoon and issued a denial at
3:34 p.m. on Friday, November 13.


Siripongs filed an action under 42 U.S.C. S 1983 at 8:30
a.m. on the following Monday. He sought a stay of execution
and an order requiring a new clemency hearing, contending
that the Board's proceeding violated principles of due pro-
cess.


The district court granted a temporary restraining order
(TRO) staying Siripongs' execution, concluding that serious
questions were raised concerning the Governor's description
of the limited scope of information relevant to the clemency
proceedings, and Siripongs' reliance on that description in his
presentation of information to the Board. The Governor peti-
tioned for a writ of mandamus.


[1] A lack of adequate notice of the issues to be considered
implicates a fundamental right of due process. Siripongs'
assertion that the state's communications misled his counsel
about the issues to be considered in the clemency proceeding
stated a claim of a violation of due process.


[2] The court of appeals' review of a TRO cannot be by
appeal as of right, but is limited to consideration of a petition


                               13104


for mandamus. [3] Because the district court entered a TRO,
there was no remedy by way of appeal. However, because the
only harm complained of was the inability to execute
Siripongs within five hours of the district court's order, the
damage to the petitioning state defendants was questionable.


[4] The district court's order was not clearly erroneous as
a matter of law as it held only that serious questions were
raised on the record before it. Similarly, the order could not
be regarded as an oft-repeated error manifesting disregard of
federal rules, nor did it raise new or important questions or
issues of law of first impression. [5] Because only one factor
clearly weighed in favor of granting mandamus relief in the
circumstances presented, the petition had to be denied.


Judge Fernandez dissented, concluding that the writ should
have issued.


_________________________________________________________________

COUNSEL

Daniel E. Lungren, Attorney General; Dane R. Gillette,
Senior Assistant Attorney General, San Francisco, California,
for the petitioners.


Linda Schilling, Latham & Watkins, Costa Mesa, California
and Michael Laurence, Sternberg, Sowards & Laurence, San
Francisco, California, for the Real Party in Interest.


_________________________________________________________________

OPINION

SCHROEDER, Circuit Judge:

Before us is a petition for writ of mandamus to review the
district court's grant of a Temporary Restraining Order stay-
ing appellant Jaturun Siripongs' execution scheduled for


                               13105


12:01 a.m. tomorrow morning, November 17, 1998. We deny
the petition.


The facts of the underlying crime and earlier state and fed-
eral court proceedings are set forth in the published decisions
of this court and the California Supreme Court. See Siripongs
v. Calderon, 133 F.3d 732 (9th Cir. 1998); Siripongs v. Cal-
deron, 35 F.3d 1308 (9th Cir. 1994); People v. Siripongs, 754
P.2d 1306 (Cal. 1988). Siripongs was convicted in 1983 of
two brutal murders and sentenced to death. In his federal
habeas petition, after exhaustion of state remedies, this court
ordered an evidentiary hearing on his claim of ineffective
assistance of counsel. Siripongs, 35 F.3d at 1323. Following
that hearing and findings by the district court, we affirmed the
district court's denial of habeas relief. Siripongs, 133 F.3d at
737. The Supreme Court denied certiorari on October 5, 1998.
See Siripongs v. Calderon, _______ U.S. _______, 119 S. Ct. 101
(1998).


On October 16, 1998 the Orange County Superior Court set
the date and time for execution. On October 20, Siripongs,
through his counsel, informed Governor Wilson of his intent
to seek clemency. A clemency hearing was held before the
Board of Prison Terms on November 9, 1998. The Governor
received the Board's recommendation that afternoon and
issued his 12-page denial at 3:34 p.m. on Friday, November
13, 1998.


Siripongs filed this 42 U.S.C. S 1983 action in the United
States District Court for the Northern District of California at
8:30 a.m. on Monday, November 16, 1998. In it, he sought a
stay of execution and entry of a court order requiring a new
clemency hearing. He contended that the clemency proceed-
ing he received violated federal principles of due process
which apply to a limited degree in clemency proceedings. See
Ohio Adult Parole Auth. v. Woodard, _______U.S. _______, 118 S. Ct.
1244, 1253-54 (1998) (O'Connor, J., concurring in part and
concurring in the judgment). The district court granted a


                               13106


TRO, concluding that serious questions were raised as to the
following:


      (1) That plaintiff and his attorneys reasonably
      relied on defendant's description of the scope of
      information relevant to defendant's clemency deci-
      sion:
      (2) That as described in the written communication
      from defendants and his agents to plaintiff's counsel,
      the scope of information relevant to defendant's
      clemency decision reasonably excluded evidence
      that questioned plaintiff's guilt of capital murder;
      (3) That as described in the written communication
      from defendants and his agents to plaintiff's counsel,
      the scope of information relevant to defendant's
      clemency decision reasonably included factors in
      mitigation including, but not limited to plaintiff's
      good conduct in prison, and the desires of the dece-
      dents' family members that he not be executed;
      (4) That defendant's decision denying plaintiff
      clemency was based on the absence of any informa-
      tion calling into question plaintiff's culpability for

      capital murder;
      (5) That until the defendant issued a written denial
      of plaintiff's clemency request, plaintiff and his
      counsel reasonably did not have any actual or con-
      structive knowledge of the grounds upon which
      defendant intended to rely in considering plaintiff's
      clemency request; and
      (6) That if defendant had given notice to plaintiff
      and his counsel of the central issues to be decided in
      the course of the clemency proceedings, plaintiff's
      counsel could and would have presented substantial
      and credible information question petitioner's role as
      the actual perpetrator of the homicides in this case.


[1] The Supreme Court has recognized that a lack of ade-
quate notice of the issues to be considered implicates a funda-


                               13107


mental right of due process. Lankford v. Idaho, 500 U.S. 110,
126 (1991). See also Woodard, 118 S. Ct. at 1253-54
(O'Connor, J. concurring in part and concurring in the judg-
ment) (state clemency procedure subject to some minimal
procedural safeguards guaranteed by due process). Siripongs'
assertion that the state's communications misled his counsel
about the issues to be considered in the clemency proceeding
states a claim of a violation of due process.


[2] Our review of a Temporary Restraining Order cannot be
by appeal as of right, but is limited to the consideration of a
petition for mandamus. See Fed. R. Civ. P. 65; Columbia
Broadcasting Systems v. United States District Court, 729
F.2d 1174 (9th Cir. 1984). Review of the district court in a
mandamus petition is extremely narrow, to guard against sub-
version of the policies underlying the general rule that appel-
late court review is reserved for cases following final
judgment. See id.; see also Harper v. United States District
Court, 729 F.2d 1216, 1221 (9th Cir. 1984); Bauman v.
United States District Court, 557 F.2d 650 (9th Cir. 1977). In
Bauman we articulated the guidelines determining whether to
issue the writ:


      (1) The party seeking the writ has no other ade-
      quate means, such as a direct appeal, to attain the
      relief he or she desires. . . .
      (2) The petitioner will be damaged or prejudiced in
      a way not correctable on appeal. . . .
      (3) The district court's order is clearly erroneous as
      a matter of law. . . .
      (4) The district court's order is an oft-repeated
      error, or manifests a persistent disregard of the fed-
      eral rules. . . .
      (5) The District court's order raises new and
      important problems or issues of law of first impres-
      sion. . . .
      [R]arely if ever will a case arise where all the guide-
      lines point in the same direction or even where each


                               13108


      guideline is relevant or applicable. The consider-
      ations are cumulative and proper disposition will
      often require a balancing of conflicting indicators.


Bauman, 577 F.2d at 654-55 (citations omitted).

[3] In this case, because the district court has entered a
Temporary Restraining Order, there is no remedy by way of
appeal. See Columbia Broadcasting, 729 F.2d at 177. The
first factor is satisfied. The second, the damage to the petition-
ing state defendants, is questionable, however, because the
only harm complained of is the inability to execute the peti-
tioner within 5 hours of the district court's order. The district
court has scheduled a full show cause hearing on issuance of
a preliminary injunction for December 3, 1998, which is less
than three weeks hence. That order will be fully reviewable
on appeal and expedited proceedings may be requested.


[4] The district court's order is not clearly erroneous as a
matter of law, as it holds only that serious questions are raised
upon the factual record before it. Similarly, the order cannot
be regarded as an oft-repeated error manifesting disregard of
federal rules, nor does it raise new or important problems or
issues of law of first impression. The dissent's spectre of
micromanagement is not borne out by the district court's
order focusing on the fundamental issue of notice.


[5] Because only one factor clearly weighs in favor of
granting mandamus relief in the circumstances presented here,
we conclude that the petition must be denied.


The court is mindful of the last minute nature of this pro-
ceeding. Nevertheless, the delay is not attributable to
Siripongs. This is not a case like Gomez v. United States Dis-
trict Court, 503 U.S. 653 (1992), where the inmate could have
brought his claim "more than a decade ago." Id., 503 U.S. at
654. We do not agree with the state's position that Siripongs'
counsel could have notified the Governor and the Board of


                               13109


Prison Terms of counsel's misunderstanding before counsel
received the Governor's decision. It was only when that deci-
sion was received, along with its accompanying explanation,
that Siripongs had notice of the actual grounds which the
Governor intended to consider. That decision was not
received by the parties until after the close of normal court
hours on Friday. This action was filed in the district court first
thing Monday morning.


The petition for mandamus is denied.

_________________________________________________________________

FERNANDEZ, Circuit Judge dissenting:

When the State seeks a writ of mandamus, as it has here,
we must determine whether the factors, or guidelines, set
forth in Bauman v. United States Dist. Court, 557 F.2d 650,
654-55 (9th Cir. 1977) indicate that the writ should issue.
Here, they surely do. The State has no other adequate means
to obtain review if the writ of execution is to be carried out,
and no appeal can correct that harm. While it cannot be said
that the district court's order manifests an oft-repeated error
or raises especially new issues of law, the issue it raises is
surely important -- to what extent will federal courts begin
parsing clemency decisions. Most importantly, the district
court order is clearly erroneous as a matter of law because it
bespeaks an expansion of court review to the point of micro-
management of the clemency process.


In point of fact, this 42 U.S.C. S 1983 case is little more
than a grasp at a straw in an attempt to stop Siripongs' execu-
tion. It seeks, in effect, to inject the federal courts into a
review of Governor Wilson's denial of clemency to a brutal
murderer. Siripongs continues to insist that "despite the fact
that his hands were cut, that clothing was found which was
covered with blood which may have been his and that of a
victim, that he had the stolen jewelry, that he had the victim's


                               13110


credit cards, and that he was trying to hide evidence," a phan-
tom accomplice actually committed the murder, while
Siripongs, himself, tried to protect the victims, who knew
him. Siripongs v. Calderon, 35 F.3d 1308, 1323 (9th Cir.
1994) (Fernandez, J. concurring and dissenting). I have never
been overly impressed by his story, nor was the district court,
nor, ultimately, was this court. See Siripongs v. Calderon, 133
F.3d 732 (9th Cir.), cert. denied, _______ U.S. _______, 119 S. Ct. 101
(1998). Neither was the Governor.


In his attempt to induce us to review the Governor's deci-
sion, he relies upon Ohio Adult Parole Auth. v. Woodard, _______
U.S. _______, 118 S. Ct. 1244, 140 L. Ed. 2d 387 (1998), and, in
particular, upon the concurring opinion of Justice O'Connor.
Id. at _______, 118 S. Ct. at 1253.


Four justices of the Court were of the opinion that clem-
ency in that case was a matter of grace, and that, in effect, the
defendant had no liberty interest which gave him the right to
demand that certain procedural requirements be followed. As
those justices put it, he "is already under a sentence of death,
determined to have been lawfully imposed. If clemency is
granted, he obtains a benefit; if it is denied, he is no worse off
than he was before." Id. at _______, 118 S. Ct. at 1252. Justice
O'Connor, speaking for herself and three other justices, did
not accept the approach that there was no liberty interest sim-
ply because "clemency is committed to the discretion of the
executive . . . ." Id. at _______, 118 S. Ct. at 1253.1 She opined
that "some minimal procedural safeguards apply to clemency
proceedings." Id. at _______, 118 S. Ct. at 1254. But she did not
opt for wholesale judicial intervention in the process or for a
regime in which courts would pick over each word used by
the executive in denying a clemency request. Two examples

of when judicial intervention might be appropriate were a
coin-flip scheme or the arbitrary denial of access to the pro-
_________________________________________________________________
1 A fifth justice agreed with that conclusion. Id. at _______, 118 S. Ct. at
1255 (Stevens, J., concurring in part and dissenting in part).


                               13111


cess itself. Id. at _______, 118 S. Ct. at 1254. Of course, examples
are not rules, but these illustrate the severe limits that courts
must put upon themselves if they hope to avoid handing
another issue to defendants for their use in delaying an
already lengthy (almost sempiternal) and cumbersome process
still further. That would then add another string to the bow of
defendants who have been able to stave off their receipt of the
punishment to which they are entitled for such a long time
that our civilized desire to assure something close to perfect
justice is seen as uncivilized behavior by many civilized
countries.


But nothing Siripongs has presented comes even close to
demonstrating the kind of behavior by Governor Wilson that
should invoke our intervention. Certainly the procedures used
do not "shock the conscience." Woratzeck v. Arizona Bd. of
Exec. Clemency, 117 F.3d 400, 404 (9th Cir. 1997). First, the
Constitution of California does commit clemency decisions to
the essentially unfettered discretion of the Governor. See
California Constitution Article 5 S 8(a) ("the Governor . . .
may grant a reprieve, pardon and commutation, after sen-
tence. . . .").


Second, the statutes of California have not imposed restric-
tions upon what the Governor must consider when he exer-
cises that discretion, nor have they required any particular
procedures, which he must follow. See Cal. Penal Code
SS 4800-14. The Governor "can deny the requested relief for
any constitutionally permissible reason or for no reason at
all." See Connecticut Bd. of Pardons v. Dumschat, 452 U.S.
458, 467, 101 S. Ct. 2460, 2465-66, 69 L. Ed. 2d 158 (1981)
(Brennan, J., concurring). Siripongs asserts that the Governor
must consider his "good conduct" in prison. However, the
California Code section that he cites for that proposition says
no such thing. See Cal. Penal Code S 4801.


Third, Siripongs was not subjected to a coin flip, nor was
he denied access to the clemency process. He had an opportu-


                               13112


nity to present his case and the Governor penned a careful,
detailed decision regarding it. The best he can do is argue
that, somehow, he was impeded in his ability to argue his
innocence to the Governor. But the Governor's letter imposes
no such limitation upon him. Thus, there is no basis for the
argument that Siripongs was denied the ability to tell his side
of the story by intentional or negligent misinformation from
the Governor.


It is true that the Board of Prison Terms, from which the
Governor asked for a report, indicated that it was not inter-
ested in information which was "duplicative of issues raised
on appeal," and went on to state that this particular review
"does not include re-litigation of the issues decided in the var-
ious courts." In my view, those thoughts are virtually tauto-
logical, and certainly did not prevent Siripongs from
presenting any new information that he might have. 2 Even if
it did, we could hardly blame the Governor if he eschewed an
opportunity to retry Siripongs' case. At any rate, what
Siripongs says he wanted was another opportunity to argue
his unimpressive phantom accomplice story, but the Governor
was well aware of that theory.


Siripongs also asserts that the Governor refused to consider
the fact that he had been a model prisoner. But, as already
noted, nothing in California law requires the Governor to
place any weight whatever on the fact that a murderer is a
nice man when he is in prison. At any rate, it is clear that the
Governor did consider that fact; he was simply unmoved by
it.3
_________________________________________________________________
2 If Siripongs' experienced counsel had any doubts about what informa-
tion the Governor would accept, they could have asked the Governor for
clarification. They didn't.
3 Siripongs also argues that the Governor arbitrarily frustrated his legiti-
mate expectations in a clemency procedure by failing to consider that nei-
ther of the victims' families want Siripongs to be executed. Because the
Governor did consider the position of members of the victims' families,
this argument is specious.


                               13113


After all is said and done, Siripongs has had a careful
review of his case by numerous judges. He was found guilty
beyond a reasonable doubt by a jury, which also found in
favor of the death penalty. The trial judge went along with
that decision. The conviction and sentence were unanimously
affirmed by the California Supreme Court. See People v.
Siripongs, 45 Cal. 3d 548, 754 P.2d 1306, 247 Cal. Rptr. 729
(1988). Habeas corpus was denied by the district court judge
and that denial was unanimously affirmed by three judges of
this court. See Siripongs, 133 F.3d at 194. He was, in short,
lawfully and properly found guilty of the vicious crime with
which he was charged. Beyond that, as the Governor perspi-
caciously and pithly summed up the matter before him:


      Mr. Siripongs' remorse is infrequent, his callous
      crimes unmitigated, his justifications nonexistent.
      His principal grounds for clemency -- an unfortu-
      nate childhood, his good behavior while in confine-
      ment -- are inadequate and could be invoked for
      nearly every death sentence. . . . Clemency is not an
      instrument to undo the considered judgment of the
      people of this State in favor of the death penalty, but
      to prevent a miscarriage of justice.


Siripongs has not been subjected to any injustice by the Peo-
ple of California, by the courts of this country, or by the Gov-
ernor. His attempt to expand the Supreme Court's "minimal
procedural safeguards," Woodard, _______ U.S. _______, 118 S. Ct. at
1254, into a minute review of clemency procedures and deci-
sions should not be countenanced.


Therefore, I respectfully dissent.

                               13114







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