### The Honorable William G. Cambridge, Chief Judge, Unite d 1 

### States District Court for the District of Nebraska. ___________ No. 96-2688

___________ John J. Joubert, * * Appellant, * * v. * * Nebraska Board of Pardons, * Donald B. Stenberg, Attorney * General of the State of * Nebraska, individually and in * Appeal from the United States his official capacity; * District Court for the District E. Benjamin Nelson, Governor * of Nebraska. of the State of Nebraska, * individually and in his * official capacity; * Scott A. Moore, Secretary of * State of the State of Nebraska, * individually and in his * official capacity; * Frank X. Hopkins, Warden of * the Nebraska State * Penitentiary, individually * and in his official capacity, * * Appellees. *

___________ Submitted: June 27, 1996 Filed: June 27, 1996

___________ Before BEAM, BRIGHT, and LOKEN, Circuit Judges.

___________ BEAM, Circuit Judge.
John J. Joubert appeals the district court's order denying temporary 1 and permanent injunctive relief under 42 U.S.C. § 1983, based on alleged constitutional violations relating to the

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procedures, conduct, and makeup of the Nebraska Board of Pardons (Board). We affirm the distric t court and deny Joubert's emergency application for an injunction pending appeal.

I. BACKGROUND
Joubert, currently in the custody of the State of Nebraska under two
sen tences of death for murdering two boys in 1983, is scheduled to b e executed at 12:01 a.m . CDT on June 28, 1996. The facts of Joubert's case and his various legal challenges can be found in other opinions including Joubert v. Hopkins , 75 F.3d 1232 (8th Cir. 1996) and thus we need not full y recount them here.
At 4:15 p.m. on June 26, 1996, the B oard unanimously denied, without a hearing, Joubert's application for commutation of his capital sentences and dissolved the previously issued stay of execution triggered by th e app lication. Prior to the Board's decision, Joubert filed this sectio n 1983 a ction in federal district court, seeking a temporary restrainin g order and preliminary injunction prohibiting his execution until the merit s of his complaint were decided. Joubert's sectio n 1983 claim alleged three
con stitutional violations. First, he asserted that the Board failed t o comply with the requi rement that Joubert's commutation application "shall be considered" under Neb. Rev. Stat. § 83-1,129(2) (Reissue 1994), and thu s violated his procedur al due process rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. Second, Joubert conte nded that the Board failed to comply with its own procedura l provisions, as set out in Rule 004.05 of the Neb raska Pardons Board Policy and Procedure Guidelines, by attempting to limit the testimony presented inthe event a hearing were granted thereby violating his procedural due process rights. Third, Joubert argued that the makeup of the Board, which included the Attorney General of the

### The Board currently consists of three members: Governor E. 2 

### Ben jaminNelson; Secretary of State Scott A. Moore; and Attorne y General Donald B. Stenberg. Neb. Rev. Stat. § 83-1,126 (Reissu e 1994); see also Neb. Const. art. IV, § 13.
-3- St ate of Nebraska (A.G.), violated Joubert's substantive due proces s 2 rights under the Fifth and Fourteenth Amendments because the A.G.'s dual role as prosecutor and arbiter rendered the clem ency process fundamentally unfair

. Joubert also asserted that the A.G.'s participation violate d Joubert' s Eighth Amendment right to be free from cruel and unusua l punishment.

The district court dismissed Joubert's complaint and denied hi s motion for a temporar y restraining order. The district court entered its order prior to the Board's decision to deny Joubert's commutatio n application. After concluding it had jurisdiction, the district court hel d that Joubert failed to demonstrate the violation of a constitutional right , a re quirement in a section 1983 claim. Joubert appeals the distric t court's order and requests an injunction prohibiting his execution until the merits of his appeal are decided.

II. DISCUSSION

On appeal, Joubert makes the same three arguments that he made to the dist rict court. We first address Joubert's assertion that the Boar d violate d his procedural due process rights by failing to consider hi s commut ationapplication. It is well-established that prisoners have n o consti tutional or fundamental right to clemency. Connecticut Bd. o f Pardons v. Dumschat , 452 U.S. 458, 463-64 (1981); Otey v. Stenberg , 34 F.3 d 635, 637 (8th Cir. 1994). Moreover, "`[w]hen a commutation statute does not impose standards constraining the discretion of the board as to when clemencymust be granted, the statute does not create a constitutiona l right or entitlement sufficient to invoke the Due Process Clause.'" Otey v. Stenberg , 34 F.3d at 637 (quoting Whitmore v. Gaines , 24 F.3d 1032,

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1034 (8th Cir. 1994)). Such is the case here. The Nebraska statut e governing the operation of the Board gives the Board "unfettered discretio n to grant or deny a commutation of a lawfully imposed sentence for an y reason or for no reason at all." Otey v. State , 485 N.W.2d 153, 166 (Neb. 1992). The Nebraska statute requires only that an application requesting the Board to exercise its pardon authority "shall be considered with o r witho ut a hearing by the board at its next regular scheduled meeting. " Neb. Rev. Stat. § 83-1,129(2) (Reissue 1994). Therefore, the only interes t created by the Nebras ka statute is "the right to ask for mercy." Otey v. Stenberg , 34 F.3d at 637 (emphasis added).

Joubert asserts that the Board did not actually consider hi s commutationapplication because its members were predisposed to deny it. To support this asser tion, Joubert relies upon various statements made by Board members to the media, in which they expressed skepticism as to the likelihood of grantin g Joubert's commutation application or request for a hear ing. Although these statements might reflect the members ' predisposition, such predisposition does not mean that the members failed to fulfill their statutorily imposed duty to con sider the application. On June 26, 1996, the Board did in fact consider Joubert's application an d decidedto deny it without a hearing. Such action is within the Board's discretio n. Furthermore, we are bound by our prior decision in Otey v
. Stenberg in which we determined that the Nebraska clemency statute "does not create a protectable interest in the manner in which the Board receive s [a] request or in having unbiased decisionmakers on the Board." Id. If the Nebraska clemency statute does not create an interest in havin g unbiase d decisionmakers on the Board, it certainly does not create a n interest in having a commutation application considered by Board members without predispositions about the prisoner's likelihood of

### Joubert's attempt to distinguish Otey v. Stenberg from th e 3 

### present case on the ground that, unlike Joubert, Otey was given a hearing before his application was denied lacks merit because the Board may deny the application "with or without a hearing." Neb. Rev. Stat. § 83-1,129(2) (Reissue 1994).
-5- success. We conclude, therefore, that the Board met its statutoril y

3 imposed duty to consider Joubert's commutation a pplication and thus he has faile d to demonstrate a violation of any constitutionally protecte d interest on which to base his section 1983 claim.

Jou bert next contends that a member of the Board violated hi s procedural due proces s rights by seeking to limit the testimony presented to the Board in the event a hearing were granted. Since we have already determinedthat no procedural due process right accrues, this contention is without merit. In any event we note that Joubert points to Rule 004.05 of the Nebraska Pardons Board Policy and Procedu re Guidelines which states that an applicant sentenced to death "shall receive three hours fo r presentation of information and argument to the Board." This rule , however, only applies if the Board decides to grant a hearing. In th e present case, the Board denied Joubert's request for a hearing and thu s Rule 004.05 is inapplicable. Moreover, Joubert' s argument is speculative, at best, because a hearing was never held. Furt hermore, even if a hearing had been held, we have no way of knowing whether the full Board would have adopt edthat member's recommendations and limited the testimony

. Therefore, Joubert's section 1983 claim fails be cause he did not establish a right deserving of constitutional protection, given that no hearing was held.
Finally, Joubert contends that the participation of the A.G. in the clemency process violates Joubert's substantive due process rights because the A.G. served in dual roles of both prosecutor and arbiter. Thi s argument fails, however, in light of our prior

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dec isionin Otey v. Stenberg , in which we held that due process neve r attach edto clemency proceedings because the only right created unde r Nebraska law, which d oes not impose any limits or standards on the Board, is the right to ask for clemency. 34 F.3d at 637-38. As noted above , Joubert has no right to a Board consisting of unbiased decisionmakers. Id

. at 63 7. Therefore, Joubert's section 1983 claim based on this allege d substantive due process violation also fails. We have considered Joubert' s remaining arguments, including his Eighth Amendment claim, and find them to be without merit.

III. CONCLUSION

Becau se Joubert failed to prove that the Board's conduct , proceedings, or makeup violated a constitutionally protected right, hi s section 1983 claim must fail. Accordingly, we a ffirm the district court's order and deny Joubert's emergency application for an injunction pending appeal.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.