The Honorable William G. Cambridge, Chief Judge, United

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States District Court for the District of Nebraska.

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No. 96-2688

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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. *

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 Submitted: June 27, 1996

 Filed: June 27, 1996

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Before BEAM, BRIGHT, and LOKEN, Circuit Judges.

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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 district 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

sentences of death for murdering two boys in 1983, is scheduled to be

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 fully

recount them here. 

At 4:15 p.m. on June 26, 1996, the Board unanimously denied, without

a hearing, Joubert's application for commutation of his capital sentences

and dissolved the previously issued stay of execution triggered by the

application. Prior to the Board's decision, Joubert filed this section

1983 action in federal district court, seeking a temporary restraining

order and preliminary injunction prohibiting his execution until the merits

of his complaint were decided. Joubert's section 1983 claim alleged three

constitutional violations. First, he asserted that the Board failed to

comply with the requirement that Joubert's commutation application "shall

be considered" under Neb. Rev. Stat. § 83-1,129(2) (Reissue 1994), and thus

violated his procedural due process rights as guaranteed by the Fifth and

Fourteenth Amendments to the United States Constitution. Second, Joubert

contended that the Board failed to comply with its own procedural

provisions, as set out in Rule 004.05 of the Nebraska Pardons Board Policy

and Procedure Guidelines, by attempting to limit the testimony presented

in the 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

Benjamin Nelson; Secretary of State Scott A. Moore; and Attorney

General Donald B. Stenberg. Neb. Rev. Stat. § 83-1,126 (Reissue

1994); see also Neb. Const. art. IV, § 13.

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State of Nebraska (A.G.), violated Joubert's substantive due process

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rights under the Fifth and Fourteenth Amendments because the A.G.'s dual

role as prosecutor and arbiter rendered the clemency process fundamentally

unfair. Joubert also asserted that the A.G.'s participation violated

Joubert's Eighth Amendment right to be free from cruel and unusual

punishment.

The district court dismissed Joubert's complaint and denied his

motion for a temporary restraining order. The district court entered its

order prior to the Board's decision to deny Joubert's commutation

application. After concluding it had jurisdiction, the district court held

that Joubert failed to demonstrate the violation of a constitutional right,

a requirement in a section 1983 claim. Joubert appeals the district

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

district court. We first address Joubert's assertion that the Board

violated his procedural due process rights by failing to consider his

commutation application. It is well-established that prisoners have no

constitutional or fundamental right to clemency. Connecticut Bd. of

Pardons v. Dumschat, 452 U.S. 458, 463-64 (1981); Otey v. Stenberg, 34 F.3d

635, 637 (8th Cir. 1994). Moreover, "`[w]hen a commutation statute does

not impose standards constraining the discretion of the board as to when

clemency must be granted, the statute does not create a constitutional

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 statute

governing the operation of the Board gives the Board "unfettered discretion

to grant or deny a commutation of a lawfully imposed sentence for any

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 or

without a hearing by the board at its next regular scheduled meeting."

Neb. Rev. Stat. § 83-1,129(2) (Reissue 1994). Therefore, the only interest

created by the Nebraska 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 his

commutation application because its members were predisposed to deny it.

To support this assertion, Joubert relies upon various statements made by

Board members to the media, in which they expressed skepticism as to the

likelihood of granting Joubert's commutation application or request for a

hearing. Although these statements might reflect the members'

predisposition, such predisposition does not mean that the members failed

to fulfill their statutorily imposed duty to consider the application. On

June 26, 1996, the Board did in fact consider Joubert's application and

decided to deny it without a hearing. Such action is within the Board's

discretion. 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 receives

[a] request or in having unbiased decisionmakers on the Board." Id. If

the Nebraska clemency statute does not create an interest in having

unbiased decisionmakers on the Board, it certainly does not create an

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 the

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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).

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success. We conclude, therefore, that the Board met its statutorily

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imposed duty to consider Joubert's commutation application and thus he has

failed to demonstrate a violation of any constitutionally protected

interest on which to base his section 1983 claim.

Joubert next contends that a member of the Board violated his

procedural due process rights by seeking to limit the testimony presented

to the Board in the event a hearing were granted. Since we have already

determined that 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 Procedure Guidelines which states

that an applicant sentenced to death "shall receive three hours for

presentation of information and argument to the Board." This rule,

however, only applies if the Board decides to grant a hearing. In the

present case, the Board denied Joubert's request for a hearing and thus

Rule 004.05 is inapplicable. Moreover, Joubert's argument is speculative,

at best, because a hearing was never held. Furthermore, even if a hearing

had been held, we have no way of knowing whether the full Board would have

adopted that member's recommendations and limited the testimony.

Therefore, Joubert's section 1983 claim fails because 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. This

argument fails, however, in light of our prior
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decision in Otey v. Stenberg, in which we held that due process never

attached to clemency proceedings because the only right created under

Nebraska law, which does 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 637. Therefore, Joubert's section 1983 claim based on this alleged

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

Because Joubert failed to prove that the Board's conduct,

proceedings, or makeup violated a constitutionally protected right, his

section 1983 claim must fail. Accordingly, we affirm 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.