USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 1 of 14
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 23-11277-P ________________________
DARRYL BRYAN BARWICK,
Plaintiff - Appellant,
versus
GOVERNOR OF FLORIDA, ATTORNEY GENERAL OFFICE, JIMMY PATRONIS, CHIEF FINANCIAL OFFICER WILTON SIMPSON, COMMISSIONER OF AGRICULTRUE MELINDA COONROD, CHAIRWOMAN, FLORIDA COMMISSION ON OFFENDER REVIEW SUSAN MICHELLE WHITWORTH, COORDINATOR, OFFICE OF EXECUTIVE CLEMENCY STEPHEN HEBERT, DIRECTOR, OFFICE OF CLEMENCY INVESTIGATIONS
Defendants - Appellees. ________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
Before: WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges
PER CURIAM:
Darryl Bryan Barwick is a Florida death-row prisoner who is scheduled to be executed on
May 3, 2023, at 6:00 p.m.
Barwick brought an action under 42 U.S.C. § 1983, arguing that the Governor of Florida
and several other state officials violated his constitutional right to due process because they did USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 2 of 14
not adequately consider his candidacy for executive clemency. He also moved for an emergency
stay of execution. The district court denied Barwick’s motion for a stay.
Barwick then moved in this Court for a stay of execution pending appeal. After reviewing
the record and governing legal standards, we too must deny Barwick’s motion for a stay.
I. BACKGROUND
Barwick is a Florida death-row prisoner who was sentenced to death in 1992 following his
conviction for the murder of Rebecca Wendt. His execution is scheduled for May 3, 2023. We
previously discussed the facts of Barwick’s crimes in Barwick v. Secretary, Florida Department
of Corrections, 794 F.3d 1239, 1241–42 (11th Cir. 2015) (per curiam). See also Barwick v. State,
660 So. 2d 685, 688–89 (Fla. 1995) (per curiam). We do not repeat that discussion here. Rather,
because the challenge before us centers on Florida’s clemency proceedings, we focus there.
A. Florida’s Clemency Regime
Florida law provides the executive branch with the authority to commute punishments, and
state law does not impose any legal limitations on officials’ exercise of their discretion. Fla. Const.
art. IV, § 8(a); Fla. Stat. § 940.01(1); see also Bowles v. DeSantis, 934 F.3d 1230, 1235–36 (11th
Cir. 2019).
The Governor and the Cabinet, which collectively sit as the Clemency Board, have adopted
the Florida Rules of Executive Clemency. See Parole Comm’n v. Lockett, 620 So. 2d 153, 155
(Fla. 1993). Rule 15 governs the “Commutation of Death Sentences.” Fla. R. Exec. Clemency
15. It provides that the Florida Commission on Offender Review (“Commission”)—which is
distinct from the Clemency Board—“may conduct a thorough and detailed investigation into all
factors relevant to the issue of clemency and provide a final report to the Clemency Board.” Id.
And Florida law requires that the Commission report to the Board “the circumstances, the criminal
records, and the social, physical, mental, and psychiatric conditions and histories of persons under USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 3 of 14
consideration by the board for pardon, commutation of sentence, or remission of fine, penalty, or
forfeiture.” Fla. Stat. § 947.13(1)(e).
But Rule 15 does not delineate the “factors relevant to the issue of clemency,” nor does
Florida law otherwise include specific enumerated factors that should be considered during the
clemency process. Instead, the Rules dictate that “[t]he Governor has the unfettered discretion to
deny clemency at any time, for any reason.” Fla. R. Exec. Clemency 4. 1
The Rules’ specific requirements for the Commission investigation are largely procedural.
For example, Rule 15 directs that the investigation “shall include, but not be limited to: (1) an
interview with the inmate, who may have clemency counsel present, by [the Commission]; (2) an
interview, if possible, with the trial attorneys who prosecuted the case and defended the inmate;
(3) an interview, if possible, with the presiding judge; and (4) an interview, if possible, with the
defendant’s family.” Fla. R. Exec. Clemency 15(B). And once the investigation is complete, the
Commission is directed to issue a final report, which “shall include: (1) any statements made by
the defendant, and defendant’s counsel, during the course of the investigation; (2) a detailed
summary from each Commissioner who interviewed the inmate; and (3) information gathered
during the course of the investigation.” Fla. R. Exec. Clemency 15(D). 2
1 The inverse is also true. “The Governor, with the approval of at least two members of the Clemency Board, has the unfettered discretion to grant, at any time, for any reason” the enumerated forms of clemency. Fla. R. Exec. Clemency 4. 2 Rule 15 also provides that “[f]ailure to conduct or complete the investigation pursuant to these rules shall not be a ground for relief for the death penalty defendant.” Fla. R. Exec. Clemency 15(C). USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 4 of 14
B. Barwick’s Clemency Process
According to Barwick’s complaint, in 2020, Barwick began receiving legal services to
support him in the clemency proceeding. Barwick’s clemency interview took place on April 29,
2021, with Barwick, his counsel, and two Commissioners, Richard Davison and David Wyant. 3
At the clemency interview, Davison initially stated that the interview would be reviewed
by the Governor and the other members of the Clemency Board to determine whether Barwick’s
case should be heard before the full Board. Davison explained that the Commission “is not here
to review what happened during [Barwick’s] court proceedings or to determine [his] innocence or
guilt.” “The purpose of this interview,” Davison continued, is to give Barwick “an opportunity to
make any statements or comments concerning commutation to life of the death sentence imposed.”
Barwick told the Commission about his childhood, and specifically about the abuse he
received from his father. For example, Barwick said his father would beat him with “[w]hatever
he could get his hands on,” such as a two-by-four or baseball bat. After those beatings, Barwick
would sustain injuries and would not go to school until they healed. Barwick also expressed
remorse for his crimes and explained that he would hope to continue contributing in prison if his
sentence was commuted to life imprisonment.
The Commissioners asked Barwick about his childhood, including about the beatings he
received from his father and about his relationships with his siblings. They also asked Barwick
questions about his crimes. For example, when asked why he killed Ms. Wendt or why he decided
to commit crimes that he knew to be wrong, Barwick said he did not know. And Barwick said, in
response to one of the Commissioners’ questions, he would consider himself to be a sexual deviant.
3 Also present at the interview were the Commission’s Investigator Supervisor, John Steve Dawson, and the Capital Punishment Research Specialist, Brandy Fortune. USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 5 of 14
Following the hearing, Barwick’s counsel provided the Commission with a few reports and
letters to bolster Barwick’s application for commutation of his death sentence. These materials
included a letter from Dr. Hyman H. Eisenstein, which explained that Barwick “has a history of
multiple brain injuries,” which have impaired his planning and decisionmaking and his ability to
remember the facts of his crimes.
On April 3, 2023, Governor DeSantis determined that “executive clemency is not
appropriate” for Barwick and issued a death warrant setting Barwick’s execution for May 3, 2023.
C. Procedural History
On April 13, 2013, Barwick initiated this action in federal district court, alleging that the
Governor and the other members of the Clemency Board violated his federal constitutional right
to due process through an inadequate consideration process of his candidacy for clemency. He
also moved for an emergency stay of execution. Barwick’s central argument supporting his
complaint and his request for a stay is that his clemency proceeding was decided on an arbitrary
basis because the Florida clemency scheme sets forth no standards upon which his candidacy
should have been decided, and because the Commission provided false guidance when it suggested
it was not concerned with his underlying guilt but then focused its interview on the facts of his
crimes.
The state officials (“State”) opposed Barwick’s motion for a stay of execution, arguing that
Barwick’s due-process claim is unlikely to succeed on the merits and that, under controlling
precedent, last-minute stays of execution are disfavored. The State’s merits argument posits that
clemency is strictly an executive function and that Florida’s clemency process satisfies the minimal
procedural safeguards that the Due Process Clause requires. Relying on similar arguments, the
State also moved to dismiss Barwick’s complaint. USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 6 of 14
The district court denied Barwick’s motion for a stay of execution. The court held that
Barwick received process as good as or better than other prisoners who brought similar challenges,
which were ultimately rejected. The district court also noted that the Commission interviewers
asked Barwick questions about the mitigating circumstances he had mentioned, that the record
shows that the Clemency Board decided his candidacy on the merits, and that more detailed
standards governing clemency claims are unlikely to have made a difference.
Barwick moved in this Court for an emergency stay of execution pending appeal.
II. STANDARD OF REVIEW
We may grant a stay of execution only if the prisoner “establishes that (1) he has a
substantial likelihood of success on the merits, (2) he will suffer irreparable injury unless the
injunction issues, (3) the injunction would not substantially harm the other litigant, and (4) if
issued, the injunction would not be adverse to the public interest.” Bowles, 934 F.3d at 1238
(citation omitted). To obtain a stay, the prisoner “must satisfy all of the requirements for a stay,
including a showing of a significant possibility of success on the merits.” Hill v. McDonough, 547
U.S. 573, 584 (2006).
III. DISCUSSION
Our discussion of Barwick’s motion for stay of execution proceeds in two parts. We first
ensure that federal jurisdiction to consider Barwick’s claim exists. After assuring ourselves of
jurisdiction, we consider the merits of Barwick’s motion.
A. Federal jurisdiction is proper.
We must first ensure that federal jurisdiction exists over Barwick’s claim because “we are
obligated to address jurisdictional questions sua sponte whenever jurisdiction may be lacking.”
Reaves v. Sec’y, Fla. Dep’t of Corr., 717 F.3d 886, 905 (11th Cir. 2013) (quotation marks and
citation omitted). Here, the parties and the district court have suggested that there may be a USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 7 of 14
question about whether an action under 42 U.S.C. § 1983 is the correct procedural vehicle for
Barwick’s claim about the alleged deficiencies in his clemency process.
In Spivey v. State Board of Pardons & Paroles, we held that a prisoner’s action alleging
that he was improperly denied clemency was incorrectly brought under § 1983 when it should have
been treated as a second or successive petition for habeas relief. 279 F.3d 1301, 1303 (11th Cir.
2002) (per curiam). We therefore concluded in that case that the district court did not have
jurisdiction and that we could not consider the prisoner’s appeal of an order denying his motion
for stay of execution. Id. at 1303–04.
But since Spivey, the Supreme Court has clarified that Ҥ 1983 remains available for
procedural challenges where success in the action would not necessarily spell immediate or
speedier release for the prisoner.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) (emphasis in
original). And following the Supreme Court’s clarification in Wilkinson, we have explained that
a prisoner’s “complaint about Florida’s clemency procedures may only be brought under 42 U.S.C.
§ 1983.” Valle v. Sec’y, Fla. Dep’t of Corr., 654 F.3d 1266, 1268 (11th Cir. 2011) (per curiam).
We have thus considered the merits of several prisoners’ challenges brought under § 1983 that
concern state clemency proceedings and that resemble the claim brought in Spivey and the claim
Barwick brings here. See, e.g., Mann v. Palmer, 713 F.3d 1306, 1316–17 (11th Cir. 2013);
Gissendaner v. Comm’r, Ga. Dep’t of Corr., 794 F.3d 1327, 1332–33 (11th Cir. 2015); Bowles,
934 F.3d at 1239.
And since our post-Wilkinson decisions, the Supreme Court has expanded on the distinction
between § 1983 claims and habeas claims. In Nance v. Ward, the Court explained that the text of
§ 1983 “broadly authorizes suit against state officials for the ‘deprivation of any rights’ secured
by the Constitution.” 142 S. Ct. 2214, 2221 (2022) (quoting 42 U.S.C. § 1983). But the Court has USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 8 of 14
not “read § 1983 literally in the prisoner context” because doing so would “swamp[] the habeas
statute’s coverage of claims that the prisoner is ‘in custody in violation of the Constitution.’” Id.
(quoting 28 U.S.C. § 2254(a)). So the Court has “insisted that § 1983 contains an ‘implicit
exception’ for actions that lie ‘within the core of habeas corpus.’” Id. (quoting Wilkinson, 544
U.S. at 79). And defining that core focuses on “whether a claim challenges the validity of a
conviction or sentence,” such as “when an inmate seeks to overturn his death sentence, thus
preventing the State from executing him.” Id. at 2221–22. In other words, “[a] claim should go
to habeas . . . only if granting the prisoner relief ‘would necessarily prevent the State from carrying
out its execution.’” Id. at 2222 (quoting Nelson v. Campbell, 541 U.S. 637, 647 (2005)) (emphasis
in Nelson) (alteration adopted).
Applying those principles and controlling precedent, Barwick’s action is properly brought
under § 1983, and we explicitly recognize the Supreme Court’s abrogation of Spivey under
Wilkinson and Nance. Barwick’s complaint expressly does not challenge the ultimate validity of
his death sentence, nor would a successful claim necessarily mean that the State could not carry
out its execution. Instead, Barwick seeks an injunction “barring Defendants from executing him
until Defendants provide him with an executive clemency process comporting with the United
States Constitution.” Compl. ¶ 53. In other words, if Florida’s clemency process here violated the
Due Process Clause, Florida could cure any violation by providing constitutionally adequate
process. It could then proceed with its proposed execution if the Clemency Board determined that
clemency was not warranted. See Valle, 654 F.3d at 1268 (“Even if successful, [the prisoner’s]
claim would not necessarily lead to his speedier release, a commutation of his sentence, or even
the implication that his sentence is invalid. The most [the prisoner] can hope for is an opportunity
to plead for mercy.”). USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 9 of 14
We therefore have jurisdiction to consider the merits of Barwick’s claim.
B. The State did not violate the Due Process Clause.
The State first contends that we should not consider the substance of Barwick’s claim and
that his motion “should be denied based on delay alone.” We disagree. The record shows that the
Board did not make a decision on Barwick’s clemency candidacy until April 3, 2023, when the
Governor issued the death warrant, noting that “it has been determined that executive clemency is
not appropriate.” Until that point, Barwick had no reason to challenge the State’s executive
clemency process. So we cannot see how, contrary to the State’s contention, Barwick “deliberately
waited” to file this challenge until a decision would also require a stay of execution. The only
reason for the timing of Barwick’s lawsuit in relation to the scheduled execution is the Governor’s
decision to simultaneously deny clemency and issue the death warrant.
Turning to the merits, because Barwick appeals the district court’s order denying his
motion for a stay of execution, we review to determine whether the district court abused its
discretion. Bowles, 934 F.3d at 1238. The “first and most important question” concerning
Barwick’s request for a stay is whether he can demonstrate a substantial likelihood of success on
the merits. Jones v. Comm’r, Ga. Dep’t of Corr., 811 F.3d 1288, 1292 (11th Cir. 2016). As it
turns out, our discussion begins and ends there.
The merits of Barwick’s arguments turn on whether the State’s clemency process in his
case violated the Due Process Clause of the Fourteenth Amendment. Barwick contends that the
State deprived him of due process because there are no standards governing clemency decisions
and because the Commissioners ignored the only ostensible standard—that the process is not
concerned with Barwick’s guilt for his crimes—by focusing this clemency interview on the
circumstances of his crime and his prior criminal conduct. USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 10 of 14
The Supreme Court has recognized that death-row prisoners have a due-process interest in
the context of state clemency proceedings. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272
(1998). Justice O’Connor’s concurring opinion provides the holding in Woodard. See Wellons v.
Comm’r, Ga. Dep’t of Corr., 754 F.3d 1268, 1269 n.2 (11th Cir. 2014) (acknowledging that Justice
O’Connor’s concurrence “set binding precedent”); see also Gissendaner, 794 F.3d at 1331. Her
opinion recognizes that a death-row prisoner’s life interest secured by the Due Process Clause
necessitates that “some minimal procedural safeguards apply to clemency proceedings.” Woodard,
523 U.S. at 289 (O’Connor, J., concurring in part and concurring in the judgment) (emphasis in
original).
Justice O’Connor explained that “[j]udicial intervention might, for example, be warranted
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.” Id. But in Woodard itself, Ohio’s clemency procedures—which provided the prisoner
with three days’ notice of his clemency interview, ten days’ notice of his hearing, excluded his
counsel at the interview, and prohibited evidence at the hearing—did not violate the Due Process
Clause. Id. at 289–90.
In the years following Woodard, we have said that “[t]he key word” in Justice O’Connor’s
opinion “is ‘minimal.’” Gissendaner, 794 F.3d at 1331. And we have emphasized that clemency
is “discretionary” and is “granted as ‘a matter of grace.’” Valle, 654 F.3d at 1268 (quoting
Woodard, 523 U.S. at 280–81 (plurality opinion)); see also Bowles, 934 F.3d at 1242. Based on
those governing standards, we have repeatedly upheld state clemency proceedings when they have
been challenged under the Due Process Clause. USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 11 of 14
For example, in Gissendaner, the prisoner argued that the state violated her constitutional
rights after she lost the opportunity to obtain and present evidence because corrections-staff
members allegedly feared losing their jobs if they testified on her behalf. 794 F.3d at 1332. A
panel of this Court said that Justice O’Connor’s opinion in Woodard did not “suggest[] that a
clemency board’s compliance with state laws or procedures is part of the ‘minimal procedural
safeguards’ protected by the Due Process Clause,” and therefore upheld the state’s procedures,
even if they violated state law. Id. at 1333; see also Wellons, 754 F.3d at 1296 (holding prisoner’s
due-process interest was not violated after a corrections officer who had been willing to support
clemency later refused to do so for fear of losing his job).
And in Mann, we rejected a prisoner’s argument that he was entitled to a new clemency
hearing after the Governor of Florida considered an updated clemency investigation before signing
the death warrant. 713 F.3d at 1316. Neither state law nor the Due Process Clause required
additional procedures before the Governor’s decision, we said. Id. at 1316–17; see also Gilreath
v. State Bd. of Pardons & Paroles, 273 F.3d 932, 934 (11th Cir. 2001) (holding clemency board
members’ absence from clemency meeting and their appearance of impropriety did not violate
Due Process Clause).
Here, Barwick argues that the State violated his due-process rights because it did not
provide any standards that would govern the clemency decision. But under our binding precedent,
we cannot agree that the Due Process Clause requires the State to provide any such standards.
An initial problem with Barwick’s argument about the State’s lack of standards is that it
runs counter to Supreme Court authority, which has explained that “[i]t is not for the Judicial
Branch to determine the standards” for the executive’s clemency discretion. Cavazos v. Smith,
565 U.S. 1, 9 (2011) (per curiam). Any grievances that “the clemency power is exercised in either USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 12 of 14
too generous or too stingy a way” must be resolved by “political correctives, not judicial
intervention.” Id. While Cavazos was decided under different circumstances and therefore does
not squarely control the outcome here, its discussion bears on whether the Constitution imposes
the requirement for clemency standards that Barwick seeks.
With respect to the Due Process Clause’s effect on clemency proceedings, the controlling
opinion in Woodard is clear that the clemency process is only subject to “minimal procedural
safeguards.” Woodard, 523 U.S. at 289 (O’Connor, J., concurring in part and concurring in the
judgment). And the only tangible examples of due-process violations that the Supreme Court has
set forth include “truly outrageous ones, such as (1) ‘a scheme whereby a state official flipped a
coin to determine whether to grant clemency,’ or (2) ‘a case where the State arbitrarily denied a
prisoner any access to its clemency process.’” Gissendaner, 794 F.3d at 1331 (quoting Woodard,
523 U.S. at 289) (emphasis omitted).
The State’s decision to provide the Governor and the Clemency Board with wide discretion
to make clemency decisions without tangible standards does not resemble these scenarios that
Woodard outlines. That is especially true where, as here, the Commission conducted a clemency
interview with Barwick in which Barwick had an opportunity to discuss several potentially
mitigating circumstances, including the abuse he suffered during his childhood and the learning
challenges he faced in school.
To be sure, the Commissioners also asked several questions about Barwick’s criminal
history and the facts surrounding the crime that resulted in his death sentence. But we cannot say
that those inquiries suggest that the State’s clemency process was arbitrary or otherwise violated
the Due Process Clause. To the contrary, the clemency interview indicates that the Commission USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 13 of 14
sought to obtain information that would assist the Clemency Board’s decision on whether Barwick
should receive clemency.
Nor can we agree with Barwick’s argument that his clemency proceeding was arbitrary
because the Commission allegedly “provided false guidance” when it said it was not concerned
with his guilt, but then “myopically focused on [his] crime.”
Commissioner Davison told Barwick that the purpose of the clemency interview was “to
give [Barwick] an opportunity to make any statements or comments concerning commutation to
life of the death sentence imposed.” And the interview did that. Barwick, assisted by his counsel,
described his life experiences both before his crimes and after his incarceration. Following his
presentation, the Commissioners asked Barwick about his crimes and also about the experiences
he described. And they asked about his physical and mental health, including whether he has been
diagnosed with any type of brain injury. It is therefore not accurate to suggest that the Commission
“myopically focused” on Barwick’s crime.
Barwick makes several other arguments about the alleged deficiencies in the State’s
process here, including that there “was no exploration of [Barwick’s] individual characteristics,”
that “nothing [Barwick] presented was considered because the singular focus of the clemency
proceeding concerned the crime itself,” and that the “[c]lemency consideration in Barwick’s case
was essentially nonexistent.” But the record does not support his arguments. As we’ve explained,
the Commissioners asked Barwick several questions about his background as well as several
questions about his crime. The most reasonable reading of the record here is that the Clemency
Board considered Barwick’s candidacy for clemency and determined that clemency was not
warranted. And we can find no basis to conclude that the Board’s determination was arbitrary. USCA11 Case: 23-11277 Document: 12-1 Date Filed: 04/26/2023 Page: 14 of 14
Finally, Barwick argues that he did not know what standards governed his clemency
proceeding and he therefore had no opportunity to obtain a different result. We agree with the
district court that “[a] more detailed set of criteria would serve a purpose, helping to avoid
arbitrariness and unwarranted disparity.” But under existing precedent, we cannot conclude that
the Constitution requires the State to provide such criteria. Nor can we conclude that additional
criteria were likely to change the result here. Ultimately, the Clemency Board retains wide latitude
to render its decisions, and judicial review of those decisions is quite limited. See Bowles, 934
F.3d at 1242. Any additional information about the relevant factors that are considered in the
executive clemency process must come from the political branches, such as the Clemency Board
itself. 4
IV. CONCLUSION
Barwick’s due-process claim does not have a substantial likelihood of success on the
merits. We must therefore deny his motion for a stay of execution pending appeal.
MOTION FOR A STAY OF EXECUTION PENDING APPEAL DENIED.
4 We also disagree with Barwick’s argument that the district court injected facts outside the record or otherwise abused its discretion. The district court determined that, as a matter of law, Barwick’s allegations about the deficiencies in the Florida clemency process could not satisfy the standard articulated in Woodard. Its decision did not depend on any assessment of the competence of Barwick’s clemency counsel. And Barwick’s challenge here is not based on allegations of ineffective assistance from his clemency counsel. See Bowles, 943 F.3d at 1242 n.8 (“[G]iven that there is no constitutional right to clemency, there is no constitutional right to effective assistance of counsel in clemency proceedings.”).