Opinion by Judge SCHROEDER; Dissent by Judge FERNANDEZ.
SCHROEDER, Circuit Judge:
Before us is a petition for writ of mandamus to review the district court’s grant of a Temporary Restraining Order staying appellant Jaturun Siripongs’ execution scheduled for 12:01 a.m. tomorrow morning, November 17,1998. We deny the petition.
The facts of the underlying crime and earlier state and federal court proceedings are set forth in the published decisions of this court and the California Supreme Court. See Siripongs v. Calderon, 133 F.3d 732 (9th Cir.1998); Siripongs v. Calderon, 35 F.3d 1308 (9th Cir.1994); People v. Siripongs, 45 Cal.3d 548, 247 Cal.Rptr. 729, 754 P.2d 1306 (Cal.1988). Siripongs was convicted in 1983 of two brutal murders and sentenced to death. In his federal habeas petition, after exhaustion of state remedies, this court ordered an evidentiary hearing on his claim of ineffective assistance of counsel. Siripongs, 35 F.3d at 1323. Following that hearing and findings by the district court, we affirmed the district court’s denial of habeas relief. Siripongs, 133 F.3d at 737. The Supreme Court denied certiorari on October 5, 1998. See Siripongs v. Calderon, —— U.S. -, 119 S.Ct. 101, 142 L.Ed.2d 80 (1998).
On October 16, 1998 the Orange County Superior Court set the date and time for execution. On October 20, Siripongs, through his counsel, informed Governor Wilson of his intent to seek clemency. A clemency hearing was held before the Board of Prison Terms on November 9, 1998. The Governor received the Board’s recommendation that afternoon and issued his 12-page denial at 3:34 p.m. on Friday, November 13, 1998.
Siripongs filed this 42 U.S.C. § 1983 action in the United States District Court for the Northern District of California at 8:30 a.m. on Monday, November 16, 1998. In it, he sought a stay of execution and entry of a court order requiring a new clemency hearing. He contended that the clemency proceeding he received violated federal principles of due process which apply to a limited degree in clemency proceedings. See Ohio Adult Parole Auth. v. Woodard, — U.S. -,---, 118 S.Ct. 1244, 1253-54, 140 L.Ed.2d 387 (1998) (O’Connor, J., concurring in part and concurring in the judgment). The district court granted a TRO, concluding that serious questions were raised as to the following:
(1) That plaintiff and his attorneys reasonably relied on defendant’s description of the scope of information relevant to defendant’s clemency decision:
(2) That as described in the written communication from defendants and his agents to plaintiffs counsel, the scope of information relevant to defendant’s clemency decision reasonably excluded evidence that questioned plaintiffs guilt of capital murder;
(3) That as described in the written communication from defendants and his agents to plaintiffs counsel, the scope of information relevant to defendant’s clemency decision reasonably included factors in mitigation including, but not limited to plaintiffs good conduct in prison, and the desires of the decedents’ family members that he not be executed;
(4) That defendant’s decision denying plaintiff clemency was based on the absence of any information calling into question plaintiffs culpability for capital murder;
(5) That until the defendant issued a written denial of plaintiffs clemency request, plaintiff and his counsel reasonably did not have any actual or constructive knowledge of the grounds upon which defendant intended to rely in considering plaintiffs clemency request; and
[1187]*1187(6) That if defendant had given notice to plaintiff and his counsel of the central issues to be decided in the course of the clemency proceedings, plaintiff’s counsel could and would have presented substantial and credible information question petitioner’s role as the actual perpetrator of the homicides in this case.
The Supreme Court has recognized that a lack of adequate notice of the issues to be considered implicates a fundamental right of due process. Lankford v. Idaho, 500 U.S. 110, 126, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991). See also Woodard, — U.S. at-- -, 118 S.Ct. at 1253-54 (O’Connor, J. concurring in part and concurring in the judgment) (state clemency procedure subject to some minimal procedural safeguards guaranteed by due process). Siripongs’ assertion that the state’s communications misled his counsel about the issues to be considered in the clemency proceeding states a claim of a violation of due process.
Our review of a Temporary Restraining Order cannot be by appeal as of right, but is limited to the consideration of a petition for mandamus. See Fed.R.Civ.P. 65; Columbia Broadcasting Systems v. United States District Court, 729 F.2d 1174 (9th Cir.1984). Review of the district court in a mandamus petition is extremely narrow, to guard against subversion of the policies underlying the general rule that appellate court review is reserved for cases following final judgment. See id.; see also Harper v. United States District Court, 729 F.2d 1216, 1221 (9th Cir.1984); Bauman v. United States District Court, 557 F.2d 650 (9th Cir.1977). In Bauman we articulated the guidelines determining whether to issue the writ:
(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires ____
(2) The petitioner will be damaged or prejudiced in a way not correctable on ap-peal____
(3) The district court’s order is clearly erroneous as a matter of law....
(4) The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules____
(5)The District court’s order raises new and important problems or issues of law of first impression....
[Rjarely if ever will a case arise where all the guidelines point in the same direction or even where each guideline is relevant or applicable. The considerations are cumulative and proper disposition will often require a balancing of conflicting indicators.
Bauman, 557 F.2d at 654-55 (citations omitted).
In this case, because the district court has entered a Temporary Restraining Order, there is no remedy by way of appeal. See Columbia Broadcasting, 729 F.2d at 1177. The first factor is satisfied.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by Judge SCHROEDER; Dissent by Judge FERNANDEZ.
SCHROEDER, Circuit Judge:
Before us is a petition for writ of mandamus to review the district court’s grant of a Temporary Restraining Order staying appellant Jaturun Siripongs’ execution scheduled for 12:01 a.m. tomorrow morning, November 17,1998. We deny the petition.
The facts of the underlying crime and earlier state and federal court proceedings are set forth in the published decisions of this court and the California Supreme Court. See Siripongs v. Calderon, 133 F.3d 732 (9th Cir.1998); Siripongs v. Calderon, 35 F.3d 1308 (9th Cir.1994); People v. Siripongs, 45 Cal.3d 548, 247 Cal.Rptr. 729, 754 P.2d 1306 (Cal.1988). Siripongs was convicted in 1983 of two brutal murders and sentenced to death. In his federal habeas petition, after exhaustion of state remedies, this court ordered an evidentiary hearing on his claim of ineffective assistance of counsel. Siripongs, 35 F.3d at 1323. Following that hearing and findings by the district court, we affirmed the district court’s denial of habeas relief. Siripongs, 133 F.3d at 737. The Supreme Court denied certiorari on October 5, 1998. See Siripongs v. Calderon, —— U.S. -, 119 S.Ct. 101, 142 L.Ed.2d 80 (1998).
On October 16, 1998 the Orange County Superior Court set the date and time for execution. On October 20, Siripongs, through his counsel, informed Governor Wilson of his intent to seek clemency. A clemency hearing was held before the Board of Prison Terms on November 9, 1998. The Governor received the Board’s recommendation that afternoon and issued his 12-page denial at 3:34 p.m. on Friday, November 13, 1998.
Siripongs filed this 42 U.S.C. § 1983 action in the United States District Court for the Northern District of California at 8:30 a.m. on Monday, November 16, 1998. In it, he sought a stay of execution and entry of a court order requiring a new clemency hearing. He contended that the clemency proceeding he received violated federal principles of due process which apply to a limited degree in clemency proceedings. See Ohio Adult Parole Auth. v. Woodard, — U.S. -,---, 118 S.Ct. 1244, 1253-54, 140 L.Ed.2d 387 (1998) (O’Connor, J., concurring in part and concurring in the judgment). The district court granted a TRO, concluding that serious questions were raised as to the following:
(1) That plaintiff and his attorneys reasonably relied on defendant’s description of the scope of information relevant to defendant’s clemency decision:
(2) That as described in the written communication from defendants and his agents to plaintiffs counsel, the scope of information relevant to defendant’s clemency decision reasonably excluded evidence that questioned plaintiffs guilt of capital murder;
(3) That as described in the written communication from defendants and his agents to plaintiffs counsel, the scope of information relevant to defendant’s clemency decision reasonably included factors in mitigation including, but not limited to plaintiffs good conduct in prison, and the desires of the decedents’ family members that he not be executed;
(4) That defendant’s decision denying plaintiff clemency was based on the absence of any information calling into question plaintiffs culpability for capital murder;
(5) That until the defendant issued a written denial of plaintiffs clemency request, plaintiff and his counsel reasonably did not have any actual or constructive knowledge of the grounds upon which defendant intended to rely in considering plaintiffs clemency request; and
[1187]*1187(6) That if defendant had given notice to plaintiff and his counsel of the central issues to be decided in the course of the clemency proceedings, plaintiff’s counsel could and would have presented substantial and credible information question petitioner’s role as the actual perpetrator of the homicides in this case.
The Supreme Court has recognized that a lack of adequate notice of the issues to be considered implicates a fundamental right of due process. Lankford v. Idaho, 500 U.S. 110, 126, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991). See also Woodard, — U.S. at-- -, 118 S.Ct. at 1253-54 (O’Connor, J. concurring in part and concurring in the judgment) (state clemency procedure subject to some minimal procedural safeguards guaranteed by due process). Siripongs’ assertion that the state’s communications misled his counsel about the issues to be considered in the clemency proceeding states a claim of a violation of due process.
Our review of a Temporary Restraining Order cannot be by appeal as of right, but is limited to the consideration of a petition for mandamus. See Fed.R.Civ.P. 65; Columbia Broadcasting Systems v. United States District Court, 729 F.2d 1174 (9th Cir.1984). Review of the district court in a mandamus petition is extremely narrow, to guard against subversion of the policies underlying the general rule that appellate court review is reserved for cases following final judgment. See id.; see also Harper v. United States District Court, 729 F.2d 1216, 1221 (9th Cir.1984); Bauman v. United States District Court, 557 F.2d 650 (9th Cir.1977). In Bauman we articulated the guidelines determining whether to issue the writ:
(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires ____
(2) The petitioner will be damaged or prejudiced in a way not correctable on ap-peal____
(3) The district court’s order is clearly erroneous as a matter of law....
(4) The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules____
(5)The District court’s order raises new and important problems or issues of law of first impression....
[Rjarely if ever will a case arise where all the guidelines point in the same direction or even where each guideline is relevant or applicable. The considerations are cumulative and proper disposition will often require a balancing of conflicting indicators.
Bauman, 557 F.2d at 654-55 (citations omitted).
In this case, because the district court has entered a Temporary Restraining Order, there is no remedy by way of appeal. See Columbia Broadcasting, 729 F.2d at 1177. The first factor is satisfied. The second, the damage to the petitioning state defendants, is questionable, however, because the only harm complained of is the inability to execute the petitioner within 5 hours of the district court’s order. The district court has scheduled a full show cause hearing on issuance of a preliminary injunction for December 3, 1998, which is less than three weeks hence. That order will be fully reviewable on appeal and expedited proceedings may be requested.
The district court’s order is not clearly erroneous as a matter of law, as it holds only that serious questions are raised upon the factual record before it. Similarly, the order cannot be regarded as an oft-repeated error manifesting disregard of federal rules, nor does it raise new or important problems or issues of law of first impression. The dissent’s spectre of micromanagement is not borne out by the district court’s order focusing on the fundamental issue of notice.
Because only one factor clearly weighs in favor of granting mandamus relief in the circumstances presented here, we conclude that the petition must be denied.
The court is mindful of the last minute nature of this proceeding. Nevertheless, the delay is not attributable to Siripongs. This is not a case like Gomez v. United States District Court, 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992), where the inmate could have brought his claim “more than a decade ago.” Id., 503 U.S. at 654, 112 S.Ct. 1652. We do not agree with the state’s [1188]*1188position that Siripongs’ counsel could have' notified the Governor and the Board of Prison Terms of counsel’s misunderstanding before counsel received the Governor’s decision. It was only when that decision was received, along with its accompanying explanation, that Siripongs had notice of the actual grounds which the Governor intended to consider. That decision was not received by the parties until after the close of normal court hours on Friday. This action was filed in the district court first thing Monday morning.
The petition for mandamus is denied.