United States v. 2013-10-07 | 13-16978 | SCHAD VJONES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD HAROLD SCHAD,
Plaintiff-Appellant,
and
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.
No. 13-16978
D.C. No.
2:13-cv-01962-
ROS
OPINION

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SCHAD V. BREWER 2
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
Filed October 7, 2013
Before: Mary M. Schroeder, Stephen Reinhardt,
and Susan P. Graber, Circuit Judges.
Per Curiam Opinion
SUMMARY**
Habeas Corpus/Death Penalty
The panel affirmed the district court’s order denying a
preliminary injunction and denied a request for stay of
execution pending a new clemency hearing.
Appellant sought to enjoin a clemency hearing and stay
his execution, claiming that the Clemency Board was biased
and subject to undue pressure by the Governor in violation of
due process. The panel upheld the district court’s credibility
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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SCHAD V. BREWER 3
findings, made after an evidentiary hearing, regarding the
Board members’ testimony that they were not pressured or
instructed to vote a particular way.
Appellant also contended that there remained serious
questions as to the fairness of the Board’s proceedings so as
to warrant injunctive relief. The panel held that the district
court did not abuse its discretion.
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.
Timothy M. Gabrielsen, Assistant Federal Public Defender,
Tucson, Arizona, for Intervenor-Plaintiff.
Kelly Elaine Gillilan-Gibson and Brian Patrick Luse,
Assistant Attorneys General, Phoenix, Arizona, for
Defendants-Appellees.
OPINION
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,

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SCHAD V. BREWER 4
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 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

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SCHAD V. BREWER 5
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, 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.

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SCHAD V. BREWER 6
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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