MARCUS A. WELLONS, PLAINTIFF-APPELLANT,
v.
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS-APPELLEES
PER CURIAM: Petitioner Marcus A. Wellons appeals from the order of the district court denying his second motion for a stay of execution and all other denials of relief entered by the district court on June 17, 2014. Wellons alleges that as a result of Defendants’ actions, at least one corrections officer employed at the Georgia Diagnostic and Classification Prison, who was previously willing to provide a statement in support of clemency on Wellons’s behalf, now refuses to do so for fear of losing his or her job. The Supreme Court has recognized a very limited due process interest in clemency proceedings. See Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 283-285, 118 S.Ct. 1244, 1251, 140 L.Ed.2d 387 (1998) (plurality opinion) (holding that Ohio’s clemency procedures do not violate due process); id. at 288-89, 118 S.Ct. at 1253 (O’Connor, J. concurring) (“I do not, however, agree with the suggestion in the principal opinion that, because clemency is committed to the discretion of the executive, the Due Process Clause provides no constitutional safeguards.”).
However, we agree with the district court that in this case Wellons has failed to show a substantial likelihood of success on his claim that he enjoys a due process or other Constitutional right with respect to his petition for clemency.
Therefore, Petitioner’s motion is DENIED. . The plurality announced the Supreme Court’s opinion. . Justice O’Connor was the fifth and decisive vote for the plurality opinion.
Thus, her concurrence set binding precedent. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977); Swisher Intern., Inc. v. Schafer, 550 F. 3d 1046, 1053 (11th Cir.2008).
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Bowles v. Desantis, 934 F.3d 1230 (11th Cir. 2019)…arranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process."); Wellons v. Comm’r, Ga. Dep't of Corr., 754 F.3d 1268, 1269 n.2 (11th Cir. 2014) (per curiam) (recognizing Justice O'Connor's concurring opinion in Woodard as "set[ting] binding precedent"). [fn 8] 23 Case: 19-12929 Date Filed: 08/19/2019 Page: 24 of 43 Not only that, but as the district court pointe…1 / 5
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Hand v. Scott, 888 F.3d 1206 (11th Cir. 2018)…nor, J., concurring) (holding that, in the due process context, "some minimal procedural safeguards apply to clemency proceedings," suggesting that clemency-by-coin-flip might violate due process); see also Wellons v. Comm'r, Georgia Dep't of Corr., 754 F. 3d 1268, 1269 (11th Cir. 2014) (recognizing that Justice O'Connor's Woodard concurrence set binding precedent); Shepherd v. Trevino, 575 F. 2d 1110, 1114 (5th Cir. 1978) (concluding that states' power to disenfranchise those convicted of felonies does not p…
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Gissendaner v. Comm'r, Ga. Dep't OF Corr., Warden, 794 F.3d 1327 (11th Cir. 2015)…, 140 L.Ed.2d 387 (1998), did recognize a due process interest in the context of state clemency proceedings for death row inmates. The holding in that case was provided by Justice O’Connor’s concurring opinion. Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F. 3d 1268, 1269 n. 2 (11th Cir.2014) (recognizing Justice O’Connor’s concurring opinion as “set[ting] binding precedent”). Her opinion acknowledges that the “life” interest protected by the Due Process Clause itself guarantees “some minimal procedural safeg…1 / 2
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- Marks v. United States, 430 U.S. 188 (U.S. 1977)
- Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (U.S. 1998)
- Swisher Int'l, Inc. v. Schafer, 550 F.3d 1046 (11th Cir. 2008)