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Harold Lamont OTEY







A.K.A.: "Walking Wili"
Classification: Murderer
Characteristics: Rape - Robbery
Number of victims: 1
Date of murder: June 11, 1977
Date of birth: August 1, 1951
Victim profile: Jane McManus (female, 26)
Method of murder: Strangulation with a belt
Location: Douglas County, Nebraska, USA
Status: Executed by electrocution in Nebraska on September 3, 1994

Harold Lamont Otey (August 1, 1951 – September 2, 1994) was convicted of the murder of Jane McManus. Despite recanting his guilty plea and maintaining his innocence for more than 15 years, Otey became the first person to be executed in Nebraska since 1976 when the death penalty was reinstated.

He was executed in 1994 by the State of Nebraska by electrocution, becoming the first person to die in Nebraska's electric chair since Charles Starkweather was executed in 1959. Otey's final days were documented by the CBS News program 48 Hours entitled "Death at Midnight".


Harold Lamont "Wili" Otey

Harold Lamont Otey was convicted of the rape & murder of 26 year old Jane McManus in her Omaha apartment. According to the state, Otey entered the apartment in the middle of the night & removed a stereo. When he reentered to remove other items, McManus awoke. Otey raped McManus, then stabbed & finally strangled her with a belt.

Arrested six months later in Florida, Otey confessed to the crime but later recanted. At trial he was represented by an inexperienced attorney; the state was represented by the most experienced homicide prosecutor in Nebraska. Otey spent 17 years on death row. In 1994 his appeal for clemency was denied, & he was executed.

Wili strode through the door, with a stack of textbooks under his arm...alone. I was in the same room with a convicted murderer. This was no longer theoretical. I panicked; I didn't know what to say. But Wili's quiet confidence helped me to regain my equilibrium.

As I listened, he told stories - of betrayal by the press, of friends who had championed his cause. Slowly, I realized he was not the person I thought he was. I would never again fall into that trap with my subjects.

Illiterate when he was convicted, Wili, or 'Walkin' Willie (a nickname he got as a handler on the horse-racing circuit) was now articulate & well read. (His college education had been paid for by the state.) Wili had mastered the English language well enough to write poetry, & had published three books of his verse. He was now a model prisoner with unique privileges: the guards were so comfortable with him, he could move about the prison unescorted. Like many other prisoners, after years in jail Wili had undergone such a dramatic transformation, he was no longer the same person who had committed the crime he was being punished for. Even the prison administrators admitted Wili was a changed person.

The state was having a hard time getting rid of Wili. He had proven to be a worthy adversary. His story had remained on the front page for years because of media blitzes from the local press & TV newsmagazines. Pressure had been mounting to reinstate executions in Nebraska - the last had been in 1963 - & the stateís largest newspaper, the Omaha World-Herald, had been relentless in demanding his death. While most death-row inmates desire to slip into the safety of obscurity, Wili had chosen to fight back, with help from friends & supporters all over the US.

Wili eventually lost his battle. In return for clemency, the governor of Nebraska demanded that Wili show remorse for an act he claimed he didnít do. On 13 September 1994, at one minute past midnight, Harold 'Wili' Otey made history. He became the first man to be electrocuted in the state of Nebraska in 31 years. He maintained his innocence to the end.


Battling Over the Life of a Convicted Killer

By Walter Woodman - The New York Times

December 14, 1994

The end of a 16-year legal battle over the life of a convicted murderer is the subject of a follow-up on tonight's "48 Hours." The case was covered by Richard Schlesinger, a "48 Hours" reporter, in December 1992, after Harold LaMont Otey, a k a Walking Wili, won one of his nick-of-time reprieves from the electric chair. That program raised the question, echoed tonight, of whether the efforts to save Mr. Otey were a tribute to America's justice system or a waste of time and resources.

In 1978, Mr. Otey was convicted of the murder of a 26-year-old Nebraska woman, largely on the basis of his graphic description of how he had stabbed and smothered her and then hit her a few times with a hammer just to be sure she was dead. Later he said the confession had been coerced, but his volunteer lawyer, who is at the center of tonight's account, does not take that tack. Granting that his client might have done the deed, Victor Covalt argues that Mr. Otey should live because in his years on death row he studied philosophy and wrote poetry and was now a different man from the one who murdered Jane McManus.

It's a briskly paced hour that uses material from the earlier report, which followed Mr. Schlesinger as he raced after Mr. Otey's lawyers, the state's lawyers, the mother and sister of the murdered woman, Mr. Otey's friends and admirers and the official in charge of the preparations for the execution, which, if it ever took place, would be the state's first in more than 30 years. "What's going to kill you?" the plain-speaking Mr. Schlesinger asks a remarkably self-possessed Mr. Otey, "old age or electricity?"

The focus of "Death by Midnight: The Final Countdown" is on the maneuverings after June 1991, when Mr. Otey was turned down by a three-man state pardons board (which included the Attorney General, whose staff was arguing against a pardon). The only people not treated with some sympathy are those outside the prison on the night of a scheduled execution, holding up signs in favor of cooking Mr. Otey and hollering as if they were at a parking-lot barbecue.

Jane McManus's mother expresses less a thirst for vengeance than a desire for a just legal end to a crime that can never end for her. Mr. Covalt says, "It should never be easy to kill." The state's lawyer thinks of herself as upholding the law. Pressed by Mr. Schlesinger, the overseer of the electric chair declines to talk about his feelings. "In this work," he says, "self-control is a major item.

As for that question about the value to society of so many appeals over so many years, you will find no answer here. But the program leaves no doubt about the strength of the emotions on both sides.


859 F.2d 575

Harold Lamont OTEY, Appellant,
Gary GRAMMER, Warden of Nebraska Penal and Correctional
Complex, Appellee.

No. 87-1522.

United States Court of Appeals,
Eighth Circuit.

Submitted Dec. 18, 1987.
Decided Oct. 13, 1988.

Before JOHN R. GIBSON, BOWMAN, and WOLLMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Harold Lamont Otey was convicted of first degree murder in the perpetration of first degree sexual assault and was sentenced to death. His conviction and sentence were affirmed on direct appeal to the Nebraska Supreme Court in State v. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979), cert. denied, 446 U.S. 988, 100 S.Ct. 2974, 64 L.Ed.2d 846 (1980). State post-conviction relief also was denied, and that result was likewise affirmed on appeal. State v. Otey, 212 Neb. 103, 321 N.W.2d 453, cert. denied, 459 U.S. 1080, 103 S.Ct. 502, 74 L.Ed.2d 641 (1982).

Otey then filed in federal court a petition for a writ of habeas corpus, raising thirty-one grounds for relief. Adopting the extensive report and recommendation of the Magistrate,1 the District Court2 denied Otey's petition.

For reversal, Otey argues that: (1) he was denied effective assistance of counsel during his trial, at sentencing, and on appeal; (2) he was denied an impartial jury when the trial court, after voir dire was completed and the jury sworn, removed a juror for cause for expressing reservations about the death penalty; (3) the Nebraska death penalty statute is unconstitutional because it deprives defendants of the right to have a jury determine the facts underlying aggravating and mitigating circumstances; (4) the sentencing panel erred by failing to conduct a proportionality review; (5) the sentencing panel erred in considering charges of other crimes; (6) the death penalty in Nebraska is arbitrarily imposed; and (7) certain incriminating statements were obtained in violation of Miranda. For the reasons set forth below, we affirm.


Otey contends that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the Constitution by: (1) trial counsel's failure to conduct an adequate investigation; (2) trial counsel's failure to discuss trial strategy and sentencing with Otey; (3) trial counsel's performance at the sentencing hearing; (4) trial counsel's failure to request that all stages of the proceeding be recorded; (5) trial counsel's reference in his opening statement to Otey's intention to testify when no such decision had been made and when, in fact, Otey did not take the stand; and (6) appellate counsel's refusal to raise meritorious issues despite Otey's demands that the issues be raised.

Claims of ineffective assistance of counsel are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on such a claim, Otey must show that counsel's actions were unreasonable when viewed in the totality of the circumstances and that there is a reasonable probability that, but for counsel's unprofessional errors or omissions, the result of the proceeding would have been different.3 See Strickland, 466 U.S. at 687-96, 104 S.Ct. at 2064-69; Lawrence v. Lockhart, 767 F.2d 449, 450 (8th Cir.1985). If proof of one element is lacking, a court need not examine the other. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. There is a strong presumption that counsel has "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066.


In his first ineffective assistance claim, Otey argues that trial counsel failed to investigate his case adequately. This claim is based on counsel's failure to conduct pretrial interviews of most of the trial witnesses and counsel's failure to locate potential witnesses known to Otey by nicknames only. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Using this standard, we conclude that trial counsel's investigation was not unreasonable.

Counsel read the voluminous police reports numerous times and personally interviewed several of the witnesses, including Tucker Brown, a boyfriend of the deceased who allegedly confessed to the crime.4

Further, although Otey identified prospective witnesses by nickname only and failed to provide their correct names or addresses, counsel attemped to locate them and, in fact, did manage to speak to at least one of them. Considering all the circumstances, we believe that the limits counsel placed on his investigation represent a reasonable exercise of professional judgment. See id. at 691, 104 S.Ct. at 2066. See also Walker v. Solem, 687 F.2d 1235, 1238-39 (8th Cir.1982), cert. denied, 460 U.S. 1091, 103 S.Ct. 1789, 76 L.Ed.2d 357 (1983).

Moreover, Otey has not demonstrated that he was prejudiced by trial counsel's alleged deficiencies. The burden is on the petitioner to demonstrate what evidence his trial counsel could have discovered that would have helped his defense. See Beans v. Black, 757 F.2d 933 (8th Cir.), cert. denied, 474 U.S. 979, 106 S.Ct. 381, 88 L.Ed.2d 334 (1985).

Here, Otey has not identified any harm to his defense resulting from counsel's failure to interview more of the witnesses before trial. And as the magistrate noted, Otey has failed to present even the slightest hint of the nature of any favorable evidence that would have been uncovered by a more searching investigation.

In particular, Otey has not presented any evidence whatsoever that the "nicknamed" witnesses would have had favorable testimony, nor has he provided even the slightest suggestion of what their testimony would have been. In these circumstances, he has failed to establish prejudice, as required by Strickland, arising from trial counsel's asserted failure to conduct an adequate investigation. Thus he has not satisfied either element of Strickland.


Otey's second ineffective assistance claim is that counsel failed to discuss with him trial strategy and sentencing. When the claim is that counsel failed to communicate with the defendant, it must appear only that trial counsel fulfilled his duty "to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. The record reveals that Otey's counsel fulfilled this duty.

In addition to advising Otey of the consequences of a guilty plea and the penalties for first degree murder, counsel discussed the case with him, pursued his suggestions, and apprised him of every motion filed and the reasons for such filing.

Prior to trial and sentencing, counsel informed Otey of his strategy and of the evidence and witnesses that would be presented. In these circumstances, we cannot say either that counsel was deficient or that Otey was prejudiced by the lack of more extensive discussions with counsel. See, e.g., Easter v. Estelle, 609 F.2d 756, 759 (5th Cir.1980).


Otey argues that trial counsel's performance at the sentencing hearing was inadequate. He sets forth six specific bases for this argument, only one of which, that counsel failed to object to the admission of a statement allegedly taken in violation of Otey's Miranda rights, we believe warrants discussion.5

We conclude that Otey suffered no prejudice from trial counsel's failure to object to the disputed statement as there is no merit to his Miranda claim.6 The admissibility of statements obtained after a person in custody has decided to remain silent depends on whether his right to cut off questioning has been "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975).

In determining this issue, three factors have been identified for consideration: (1) whether the police immediately ceased the interrogation upon defendant's request; (2) whether they resumed questioning only after the passage of a significant period of time and provided fresh Miranda warnings; and (3) whether they restricted later interrogation to a crime that had not been the subject of the first interrogation. Id. at 106, 96 S.Ct. at 327; Jackson v. Wyrick, 730 F.2d 1177, 1179 (8th Cir.), cert. denied, 469 U.S. 849, 105 S.Ct. 167, 83 L.Ed.2d 102 (1984). See also Stumes v. Solem, 752 F.2d 317, 321 n. 4 (8th Cir.), cert. denied, 471 U.S. 1067, 105 S.Ct. 2145, 85 L.Ed.2d 502 (1985). We examine the record with these factors in mind.

At a so-called Miranda pre-trial hearing, two officers of the Omaha Police Department testified that they interrogated Otey twice during a two-day period. They apprised him of his constitutional rights at least four times over the two days and received from him at least two signed rights advisory forms.

During the second interview, after a short, general discussion, the dialogue turned to the murder for which Otey later was indicted. Otey was advised of his rights and he signed a rights advisory form. The officers then recorded a brief statement, but immediately stopped the tape when Otey indicated that he was reluctant to answer specific questions about the murder.7

Otey then agreed to have his general conversation recorded, and a new tape was inserted into the recorder. It is this tape about which Otey complains. After being advised that he was not required to say anything (another full Miranda warning was not given at this point), Otey delivered a general, rambling narrative about his life sprinkled with a few references to the murder.

We conclude that Otey's constitutional rights were scrupulously honored. When Otey appeared unwilling to answer specific questions, interrogation immediately ceased. Otey repeatedly was informed of his rights, and these rights were fresh in his mind when he agreed to record the statement at issue.

Further, during Otey's general narrative, the officers did not ask again the specific questions which Otey previously was hesitant to answer. "A person in custody may selectively waive his right to remain silent by indicating that he will respond to some questions, but not to others." United States v. Lopez-Diaz, 630 F.2d 661, 664 n. 2 (9th Cir.1980) (citation omitted). See also Stumes v. Solem, 752 F.2d at 320.

Because the officers here carefully observed Otey's Miranda rights by allowing him to "control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation," Mosley, 423 U.S. at 103-104, 96 S.Ct. at 326, the statement was admissible, and Otey's counsel did not render ineffective assistance in not objecting to its admission at the sentencing hearing.


Otey contends that counsel was derelict in failing to ensure the recording of the voir dire and the opening and closing statements. The unrebutted testimony of Otey's trial counsel is that in criminal cases, even those for first degree murder, it is the customary practice in the state district court not to record voir dire and opening and closing statements. This being the prevailing practice, counsel cannot be found to have been unreasonable, and thus ineffective, for conforming to it. See Karabin v. Petsock, 758 F.2d 966, 969 (3d Cir.), cert. denied, 474 U.S. 857, 106 S.Ct. 163, 88 L.Ed.2d 135 (1985). Cf. Mitchell v. Wyrick, 698 F.2d 940, 941 (8th Cir.) ("Mere absence of a perfect transcript does not necessarily deny one due process of law."), cert. denied, 462 U.S. 1135, 103 S.Ct. 3120, 77 L.Ed.2d 1373 (1983).


Otey next argues that his right to effective assistance of counsel was violated when counsel allegedly commented in his opening statement that Otey would testify on his own behalf when this decision had not yet been made and when, in fact, Otey did not take the stand. Even assuming that such a comment was made,8 we believe that Otey suffered no prejudice thereby.

The improper comment, if made at all, apparently was made only once. Moreover, the trial court, at the request of Otey's counsel, gave the jury a cautionary instruction not to draw any conclusions or inferences from Otey's failure to testify. In light of the overwhelming evidence of guilt presented at trial, Otey has failed to demonstrate a reasonable probability that, if the comment had not been made, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Cf. United States v. Bailey, 734 F.2d 296 (7th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 327, 83 L.Ed.2d 263 (1984) (defendant was not denied effective assistance of counsel on the ground that he did not testify even though defense counsel had told the jury in his opening statement that defendant would take the stand, where counsel explained the change in plan by saying that the Government had failed to prove its case, thereby implying that defendant's testimony was unnecessary). Otey's failure to make the required showing of prejudice defeats this claim.


Finally, Otey claims that counsel in his direct appeal was ineffective because he failed to raise the issues of ineffective assistance of trial counsel and the admissibility of Otey's statements.9 After reviewing the case and discussing the issues with Otey, counsel thoroughly briefed seven issues that in his professional judgment were not frivolous and that offered some hope of success on appeal.

He chose not to dilute this effort through the inclusion of weaker arguments. "This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983)). We are satisfied that appellate counsel's performance cannot be considered inadequate.


We have carefully reviewed the other issues raised by Otey and find them to be without merit. They have been thoroughly ventilated by the Magistrate in his lengthy and comprehensive report and recommendation and do not warrant further discussion here.

The decision of the District Court is affirmed.



The Honorable David L. Piester, United States Magistrate for the District of Nebraska


The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska


Although we apply the same standard for adjudging attorney competence in capital and noncapital cases, the seriousness of the offense is a factor to be considered in the overall assessment of counsel's performance. Pickens v. Lockhart, 714 F.2d 1455, 1460 n. 4 (8th Cir.1983)


Brown was interviewed by the Omaha police and subsequently was cleared as a suspect


The Magistrate found that, although it was deemed exhausted, this claim was waived as it had not been presented to the Nebraska Supreme Court. However, because the question of whether a waiver occurred is not free from doubt, we believe it would be in the interest of justice to dispose of this claim on the merits. See Nelson v. Solem, 714 F.2d 57, 60 (8th Cir.1983) (Lay, C.J., concurring). Cf. Feeney v. Auger, 808 F.2d 1279, 1283 n. 5 (8th Cir.1986). "As waiver is not a jurisdictional issue, we think we should go on to consider the merits of [the] constitutional claim ... for if we reject it on the merits, we reach the same result as if we had held that he had waived the claim, but without having to decide the question of waiver." Carbajol v. Fairman, 700 F.2d 397, 399-400 (7th Cir.1983)


We also doubt that counsel's representation at the sentencing hearing fell below an objective standard of reasonableness. Counsel did not object, in part, for tactical reasons. He apparently sought to rely upon the statement at issue, in conjunction with a letter from a psychiatrist, to establish the existence of either a nonstatutory mitigating factor or the "diminished capacity" mitigating circumstance set forth in Neb.Rev.Stat. Sec. 29-2523(2)(g)


Otey testified that, at this point in the interrogation, he told the officers that he had better not answer any more questions until he had seen a lawyer. Even were we to credit Otey's testimony, the Mosley "scrupulously honored" standard is still applicable. The Supreme Court held in Solem v. Stumes, 465 U.S. 638, 650, 104 S.Ct. 1338, 1345, 79 L.Ed.2d 579 (1984), that the bright-line rule established in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (once a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him or her), should not be applied retroactively. In the present case, Otey's conviction and sentence were affirmed on direct appeal in 1979 and certiorari was denied in 1980. Thus, when Edwards was decided in 1981, Otey not only had been convicted but already had exhausted his avenues of direct appeal


There is a factual dispute as to what actually was said in the opening statement. Otey has attempted to reconstruct the statement based upon his memory as well as two newspaper accounts of the trial. Trial counsel denies making the comment in question


Although the Magistrate found that Otey had waived this claim, it can be easily disposed of on the merits. See supra note 5


972 F.2d 210

Harold Lamont OTEY, Appellee,
Frank X. HOPKINS, Warden of the Nebraska Penal and
Correctional Complex, Appellant.

No. 92-2733.

United States Court of Appeals,
Eighth Circuit.

Submitted Aug. 4, 1992.
Decided Aug. 4, 1992.

Before JOHN R. GIBSON, BOWMAN and MAGILL, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Harold Otey is scheduled for execution August 6, 1992, and the district court1 has stayed execution to permit consideration of a petition for writ of habeas corpus raising new issues. Order of July 30, 1992. A motion to vacate the stay of execution is before us, and we deny the motion.

Otey's petition for writ of habeas corpus is directed to the commutation hearing before the Nebraska Board of Pardons conducted in June 1991. The Board of Pardons denied commutation by a vote of two to one. Otey attacked the commutation proceedings in state court. The Nebraska Supreme Court ruled against him in Otey v. State of Nebraska, 240 Neb. 813, 485 N.W.2d 153 (1992), which was filed on May 29, 1992.

The Nebraska Supreme Court held that in Nebraska as a matter of law the judicial branch has no jurisdiction to review the granting or denial of clemency in a death sentence case by the Board of Pardons, 485 N.W.2d at 163, and further held that the clemency decision by the Nebraska Board of Pardons did not implicate any interest protected by the due process clause of the federal or state constitutions. Id. at 167.

The petition claims constitutional violations in that the attorney general participated in conflicting capacities in the Board of Pardons proceedings, acting simultaneously as prosecutor and witness before that Board; sitting as a decisionmaker on the Board; and directing the Nebraska Board of Parole not to make a recommendation to the Nebraska Board of Pardons.

The district court denied the state's motion to dismiss on the ground that Otey's claims are not properly the subject of a petition for habeas corpus under 28 U.S.C. § 2254 (1988).

The court reasoned that a habeas petition may attack executive restraints on liberty, including a parole board's decision and a decision of the executive branch of government with respect to insanity, citing Peyton v. Rowe, 391 U.S. 54, 58, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Harris v. Nelson, 94 U.S. 286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969); Burnside v. White, 760 F.2d 217, 219 (8th Cir.), cert. denied, 474 U.S. 1022, 106 S.Ct. 576, 88 L.Ed.2d 559 (1985); and Ford v. Wainwright, 477 U.S. 399, 410-12, 106 S.Ct. 2595, 2602-03, 91 L.Ed.2d 335 (1986). Order of July 30, 1992, slip op. at 2-3.

The district court, in considering the application for stay of execution, concluded that the unusual constitutional issues required more thorough examination than could be given before the scheduled execution date of August 6, not only because the legal issues are new, but because the record is not yet fully developed. Id. at 5-6.

The district court stated that it was apparent that an evidentiary hearing may be necessary, that the claims are not frivolous, and under this court's standard in Mercer v. Armontrout, 864 F.2d 1429, 1431-32 (8th Cir.1988), a stay was required in order to give the necessary careful study to the constitutional issues raised. Order of July 30, 1992, slip op. at 5-6.

Hopkins' reliance on Bundy v. Wainwright, 808 F.2d 1410 (11th Cir.1987), with its recitation of the four factors to be considered in granting a stay, 808 F.2d at 1421, is unavailing. The holding in Bundy is directly contrary to Hopkins' position. Bundy demonstrates that nothing in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), which deals primarily with stays in the courts of appeal, alters the pleading obligations for habeas cases set out in the rules governing section 2254 cases. 808 F.2d at 1421. Here, the district court has rejected summary dismissal as provided for in Rule 4 of the section 2254 rules, has found the claim is not frivolous, and has ordered the parties to brief the question of whether a hearing is necessary. Order of July 30, 1992, slip op. at 5-6.

As the issues raised in this case arise from proceedings in June 1991, it is evident that the petition raises a claim that is neither successive (i.e., it has not been raised before), nor abusive (i.e., it does not raise grounds that were available but ignored in an earlier petition). Thus, the concerns expressed in Delo v. Stokes, 495 U.S. 320, 110 S.Ct. 1880, 109 L.Ed.2d 325 (1990), and the cause and prejudice analysis in McCleskey v. Zant, --- U.S. ----, ---- - ----, 111 S.Ct. 1454, 1470-75, 113 L.Ed.2d 517 (1991), are not applicable.

Hopkins and the dissent argue that Otey's claims are foreclosed by Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981). It is first interesting to note that Hopkins filed no response in the district court within the time allotted by local rules or before the district court entered its order granting the stay now before us. Dumschat was raised only in the motion for reconsideration.

Dumschat states that "[a] state-created right can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right." 452 U.S. at 463, 101 S.Ct. at 2464. Dumschat dealt with a very limited argument that there was an expectation of actually receiving a commutation and the state had to explain its reasons for denying the commutation. Otey's argument is far different as it is based on the expectation of receiving a meaningful commutation process, which he argues was denied him by the actions of the Attorney General.

The district court order states only that this is a claim that is not frivolous and must be thoughtfully and fully considered. We reject the argument that Dumschat, with its differing facts, requires us to vacate the stay, enter a decision on the merits in favor of Hopkins, and permit execution of Otey.

As the district court aptly stated, this case involves unusual constitutional issues requiring development of a factual record, and an evidentiary hearing may well be necessary. Order of July 30, 1992, slip op. at 5-6. Because we do not deal with a successive or abusive petition, and the district court has made a clear statement that the claims are not frivolous, a stay is required to fully and diligently consider the issues raised. Mercer, 864 F.2d at 1431-32.

The district court set a schedule for the parties to file briefs on August 12 and 19, 1992, to be followed by an August 28, 1992, conference regarding issues and procedures. Slip op. at 6-7. It is evident that the court is giving this new petition expedited consideration.2 We can anticipate that the experienced district judge will issue a decision with due dispatch.

To vacate the stay would require summary disposition of issues the district court has held to be not frivolous and to require development of a record. When human life is at stake, we would be derelict in our judicial duty to so rule. Mercer, 864 F.2d at 1431-32.

The motion to vacate the stay is denied.


BOWMAN, Circuit Judge, dissenting.

I would grant the motion to vacate the stay of execution, and therefore I respectfully dissent.

This is Otey's third federal habeas petition. He does not challenge the validity of his conviction or sentence. Rather, he attacks only the Nebraska commutation proceeding that resulted in the denial of his request for commutation of his death sentence to a sentence of life imprisonment. The District Court, and a majority of this panel, believe a stay is required so that unspecified facts regarding Otey's claims may be developed. Before deciding whether a factual record needs to be developed, however, we must first address the threshold question, which is a purely legal issue: Does the Due Process Clause apply to the Nebraska commutation proceeding? The answer to this question is no.

"The Governor, Attorney General and Secretary of State, sitting as a board, shall have power to ... grant ... commutations in all cases of conviction for offenses against the laws of the state, except treason and cases of impeachment." Neb. Const., art. IV, § 13. In the words of the Nebraska Supreme Court,

[i]n Nebraska, as a matter of law, the judicial branch of government has no jurisdiction to review the granting or denial of clemency in a death sentence case by the Board of Pardons. Article IV, § 13, of the Nebraska Constitution states, in part, that "[t]he Governor, Attorney General and Secretary of State, sitting as a board, shall have power to remit fines and forfeitures and to grant respites, reprieves, pardons, or commutations in all cases of conviction for offenses against the laws of the state, except treason and cases of impeachment." We have long held that the exercise of clemency authority "is not a right given for a consideration to the individual by the legislature, but a free gift from the supreme authority, confided to the chief magistrate, and to be bestowed according to his own discretion."

. . . . .

In short, the Nebraska Board of Pardons has the unfettered discretion to grant or deny a commutation of a lawfully imposed sentence for any reason or for no reason at all.

A review of Nebraska's Constitution, statutes, and procedures reveals that no right has been conferred upon Otey beyond the right to seek a commutation. He was afforded this right.

Otey v. State, 485 N.W.2d 153, 163, 166 (Neb.1992) (emphasis and citations omitted) (per curiam). This discretionary, standardless executive power does not give rise to due process protections to those who wish to have their commutation request granted. The Supreme Court said as much in Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 466-67, 101 S.Ct. 2460, 2465-66, 69 L.Ed.2d 158 (1981):

[The] commutation statute, having no definitions, no criteria, and no mandated "shalls," creates no analogous duty or constitutional entitlement.... [T]he mere existence of a power to commute a lawfully imposed sentence, and the granting of commutations to many petitioners, create no right or "entitlement." ... We hold that the power vested in the [Board of Pardons] to commute sentences conferred no rights on respondents beyond the right to seek commutation.

Otey does not claim that he was denied the right to seek commutation; only that the commutation process was flawed. However, Nebraska's commutation procedures do not "trigger[ ] the requirements of Fourteenth Amendment procedural due process." Spinkellink v. Wainwright, 578 F.2d 582, 619 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979);1 see also Bundy v. Dugger, 850 F.2d 1402, 1424 (11th Cir.1988) (no liberty interest present when clemency decision "is wholly a matter of executive discretion"), cert. denied, 488 U.S. 1034, 109 S.Ct. 849, 102 L.Ed.2d 980 (1989); Artway v. Pallone, 672 F.2d 1168, 1180-81 (3rd Cir.1982) (standards for parole eligibility do not trigger Due Process protections).2 Since Otey's claims are not the proper subject of a habeas petition, an evidentiary hearing or further factual development of any kind is unnecessary, and the motion to vacate the stay of execution should be granted.



The Honorable Warren K. Urbom, Senior United States District Judge for the District of Nebraska


Otey's petition was filed June 16, 1992, and the district court issued its order July 30, 1992. The district court denied a motion for reconsideration on August 3, 1992


The issue decided in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), is virtually identical to the one presented here. In both instances, the state constitution conferred an unfettered right to the executive branch to grant clemency, and the habeas petitioner challenged the denial of clemency because, inter alia, the state attorney general defended the underlying death sentence and served in the clemency review process. In Spinkellink, the Fifth Circuit held that clemency decisions which are not statutory rights but acts of grace do not implicate any liberty interests within the meaning of the Due Process Clause. Spinkellink, 578 F.2d at 618-19


The cases cited by the majority are inapposite. Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and Burnside v. White, 760 F.2d 217 (8th Cir.), cert. denied, 474 U.S. 1022, 106 S.Ct. 576, 88 L.Ed.2d 559 (1985), were both habeas challenges to state executive proceedings that were governed by statutory standards limiting the decision-maker's discretion. Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), and Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), involved habeas challenges to state judicial proceedings



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