author: PER CURIAM. KELLY, Circuit Judge,

text:
    Don William DAVIS, Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction, Appellee
    No: 04-2192
    United States Court of Appeals, Eighth Circuit.
    April 17, 2017

      SMITH, Chief Judge, SHEPHERD and KELLY, Circuit Judges
   ORDER

PER CURIAM.

Don Williams Davis was convicted of capital murder in Arkansas and sentenced to death. His conviction and sentence were affirmed on direct appeal, and his petition for postconviction relief in state court was denied. On April 1, 2002, he then filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. While that petition was pending, the Supreme Court of the United States decided Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding that executing the intellectually disabled is “cruel and unusual punishment” prohibited by the Eighth Amendment to the United States Constitution. Despite the existence of Atkins during the pendency of his petition in the district court, Davis failed to raise an Atkins claim before the district court. On January 28, 2004, the district court denied his petition.

On appeal, Davis moved this court to remand to the district court for further proceedings, arguing that there was significant evidence of his intellectual disability to render his death sentence unconstitutional in light of Atkins. Davis v. Norris, 423 F.3d 868, 878 (8th Cir. 2005). Viewing Davis’s motion to remand as “the functional equivalent of a second or successive petition for habeas corpus because he s[ought] to amend his original petition and obtain an evidentiary hearing on the Atkins issue,” we explained that Davis must satisfy the requirements of 28 U.S.C. § 2244(b)(2)(A). Id. at 878-79. That is, Davis had to “show[ ] that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Id. at 879 (quoting 28 U.S.C. § 2244(b)(2)(A)). While we acknowledged that Atkins’s prohibition on executing the intellectually disabled is retroactive to cases on collateral review, we concluded that Davis failed to satisfy § 2244(b)(2)(A) because “the Atkins rule was not previously unavailable to Davis.” Id. The Atkins rule was available because Davis “could have raised this issue while he was litigating his habeas petition in the district court.” Id. Not only was Atkins orally argued prior to Davis filing his petition, but the Supreme Court issued its opinion in Atkins “[w]hile Davis was litigating [his] petition and well before his scheduled evi-dentiary hearing.” Id. We held that “[a]l-though the issue was available to Davis, he did not attempt to present an Atkins claim to the district court and instead waited until after filing this appeal to seek permission to raise it.” Id. We issued our opinion on September 14, 2005, and the mandate issued on November 21, 2005.

On February 27, 2017, Governor of Arkansas Asa Hutchinson scheduled Davis’s execution for April 17, 2017. Then, on April 12, 2017, Davis filed the instant motions to recall the mandate or, alternatively, for leave to file a successive habeas petition and to stay the execution. The motions argue that the available evidence supports the conclusion that Davis is likely intellectually disabled, yet no court has ever considered the merits of his claim. According to Davis, if his Atkins claim had been properly raised, he would have been entitled to an evidentiary hearing in federal district court. Davis contends that he is entitled to an evidentiary hearing pursuant to Atkins. Davis would use such a hearing to demonstrate that his upcoming execution would violate the Eighth Amendment’s bar against executing the intellectually disabled. Davis further argues that because he has presented a prima facie case of intellectual disability, he is entitled to a stay of execution so that the district court can consider the merits of his Atkins claim. For the reasons discussed infra, we deny Davis’s motions to recall the mandate or, alternatively, for leave to file a successive habeas petition and to stay the execution. We grant Davis’s motion to file an overlength brief.

I. Discussion

“The standard for recalling a mandate in habeas corpus litigation is a strict one.” Thompson v. Nixon, 272 F.3d 1098, 1099-1100 (8th Cir. 2001). We exercise our “power to recall a mandate ... only in ‘extraordinary circumstances.’ ” Id. at 1100 (quoting Calderon v. Thompson, 523 U.S. 538, 550, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998)). “The Court stated in Calderon that ‘[t]he sparing use of the power demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies.’ ” Id. (alteration in original) (quoting Calderon, 523 U.S. at 550, 118 S.Ct. 1489).

A. Anti-Terrorism, and Effective Death Penalty Act of1996 (AEDPA)

We also measure a motion to recall a mandate in habeas corpus litigation against statutory limitations. Id. at 1100. “A motion to recall a mandate is analyzed as a successive petition under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA).”’ Id. This means that “for our mandate to be recalled, the standard for successive petitions must be met.” Id.

Section 2244(b) of 28 U.S.C. provides, in relevant part:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

(2)A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable....

(Emphases added.)

In summary, “AEDPA imposes three requirements on second or successive ha-beas petitions.” Ward v. Norris, 577 F.3d 925, 932 (8th Cir. 2009).

First, any claim that has already been adjudicated in a previous petition must be dismissed. § 2244(b)(1). Second, any claim that has not already been adjudicated must be dismissed unless it relies on either a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence. § 2244(b)(2). Third, before the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet § 2244(b)(2)’s new-rule or actual-innocence provisions. § 2244(b)(3).

Id. (emphasis added) (quoting Gonzalez v. Crosby, 545 U.S. 524, 529-30, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)).

Our prior panel unanimously held that Davis’s Atkins claim was not “previously unavailable” to him when he litigated his habeas petition in district court; thus, Davis’s Atkins claim was dismissed under § 2244(b)(2). Davis has offered no legal argument as to why the prior panel’s holding was incorrect; therefore, it controls.

Nor do we find that the more recent Supreme Court cases cited by Davis have any bearing on his Atkins claim because they discuss purely procedural issues unrelated to Davis. See Goodwin v. Steele, 814 F.3d 901, 904 (8th Cir. 2014) (per curiam). Hall concerned the state’s use of a strict IQ test score cutoff of 70 before allowing further evidence of intellectual disability to be considered. 134 S.Ct. at 1990. Davis does not allege that Arkansas applied an IQ test score cutoff to him. The recently decided Moore v. Texas concerned the state court’s use of out-of-date medical guides, rather than contemporary guides reflecting the medical community’s consensus, to determine whether the defendant was intellectually disabled. — U.S. —, 137 S.Ct. 1039, 1044, 197 L.Ed.2d 416 (2017). But Davis does not allege that Arkansas uses out-of-date medical guides or otherwise fails to follow contemporary medical standards. Davis, in fact, fails to cite any case supporting his view that the procedural default rules of AEDPA must cede to his Atkins claim.

Accordingly, Davis has failed to satisfy the requirements for a successive habeas petition under § 2244(b)(2).

B. Miscarriage of Justice

Davis also argues that a successive petition is necessary to avoid a miscarriage of justice because “issues of whether an individual with a substantial but unadjudicated Atkins claim can be executed and whether a potentially meritorious Atkins claim may be forever procedurally defaulted certainly warrant fuller exploration.”

“In a series of cases ..., [the Supreme Court] ha[s] held that a petitioner otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence.” Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (emphasis added). This rule is called the “fundamental miscarriage of justice exception.” Id. Here, Davis has not asserted an actual-innocence claim; that is, he is not arguing “that it is more likely than not that no reasonable juror would have convicted him in the light of ... new evidence.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Therefore, the miscarriage-of-justice exception is inapplicable.

C. Ripeness

Finally, Davis argues that while he “raised a claim challenging his sentence of death under Atkins in previous proceedings, see Davis, 423 F.3d at 878-79, he now, for the first time, raises a claim that Atkins prohibits his actual execution.” According to Davis, his “claim that the Eighth Amendment forbids the execution of an intellectually disabled person was not ripe until his warrant was issued.”

We reject this argument. The two cases that Davis relies on—Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998)—involved the issue of competency, not intellectual disability. In Ford, the Supreme Court held that “the Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane.” 477 U.S. at 410, 106 S.Ct. 2595. In Martinez-Villareal, the Supreme Court held that § 2244’s ban on successive petitions does not apply to a petitioner’s Ford claim that his scheduled execution would violate the Eighth Amendment because he is incompetent. 523 U.S. at 639, 118 S.Ct. 1618. Martinez-Villareal made clear that the issue of “competency to be executed” is not ripe until execution is imminent. 523 U.S. at 644-45, 118 S.Ct. 1618. Following Martinez-Villareal, the Supreme Court held that § 2244(b)’s ban on successive petitions did not apply to a petitioner’s Ford claim raised for the first time after the state obtained an execution warrant and after a prior habeas application had been denied. Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).

In summary, Ford and its progeny focus on the inmate’s competency at the time of execution. This makes sense because competency can be lost or regained over time. As stated in Moore, and cited in Davis’s own motion, a core element of intellectual disability is “the onset of these deficits while still a minor.” 137 S.Ct. at 1045.

In contrast to Ford, Martinez-Villareal, and Panetti, Atkins concerned intellectual disability, not competency. In creating “ ‘a substantive restriction on the State’s power to take the life’ of a mentally retarded offender,” Atkins focused exclusively on the prisoner’s culpability or reliability at the time that the crime was committed. Atkins, 536 U.S. at 321, 122 S.Ct. 2242 (quoting Ford, 477 U.S. at 405, 106 S.Ct. 2595). The Court explained:

Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.

Id. at 306-07, 122 S.Ct. 2242 (emphasis added). Davis, in essence, asks this court to stretch the Atkins decision beyond its actual holding. We decline to do so.

Whether Davis is now, in 2017, intellectually disabled has no bearing on whether he had the requisite moral culpability for the murder he committed in 1990. See In re Bowling, 422 F.3d 434, 436 (6th Cir. 2005) (“Thus, the key substantive question before this court is whether Bowling was mentally retarded at the time he committed the murders of James and Tina Early.” (emphasis added)). Additionally, Davis has failed to provide a single attachment, document, or factual allegation about his current mental abilities. Even Dr. Martell’s letter is limited to the issue of mental ability “that either was not presented or was incompletely presented during the penalty phase of Mr. Davis’s capital trial.”

We decline to treat Davis’s Atkins claim as though it were a Ford claim. Our conclusion is supported by Panetti, in which the Supreme Court took great care to expressly limit the reach of Panetti to the unique circumstances of a Ford claim. See Panetti, 551 U.S. at 945, 127 S.Ct. 2842 (“We conclude ... that Congress did not intend the provisions of AEDPA addressing ‘second or successive’ petitions to govern a filing in the unusual posture presented here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe.”). Panetti thus has no force or applicability to Davis’s claim. Id. at 947, 127 S.Ct. 2842 (“In the usual case, a petition filed second in time and not otherwise permitted by the terms of § 2244 will not survive AEDPA’s ‘second or successive’ bar.”). Just as Panetti speaks only to Ford claims, so too does Martinez-Villareal, which dealt with exhaustion of state remedies. 523 U.S. at 639, 118 S.Ct. 1618.

“Ford claims are unique among ineligibility arguments in that they are habeas relief issues based only on a prisoner’s status at the time of a potential execution.” Lee Kovarsky, Death Ineligibility and Habeas Corpus, 95 Cornell L. Rev. 329, 356 (2010) (citing Martinez-Villareal, 523 U.S. at 644-45, 118 S.Ct. 1618). True, a panel of this circuit has discussed the possibility of an individual proving intellectual disability “either (a) at the time of committing the crime or (b) at the presumptive time of execution.” See Sasser v. Hobbs, 735 F.3d 833, 846 (8th Cir. 2013). But this statement is dicta. The issue in Sasser was whether a district court had properly conducted an evidentiary hearing on the prisoner’s intellectual disability. No execution was imminent, so there was no reason to discuss claims that could be brought at the presumptive time of execution. And since Sasser did not involve any ripeness claim, it is not controlling on the question before us now.

We acknowledge that in Nooner v. Niles, our court expressly assumed, without deciding, that Atkins claims could be treated the same as Ford claims. 499 F.3d 831, 833 n.2 (8th Cir. 2007). The court made this assumption “[b]ecause the parties ... assumed” the claims are treated the same. Id. But no such assumption is made in the present case. The parties in this case vigorously disagree on this issue. Therefore, Nooner is without precedential value on the issue.

An Eighth Circuit case that did in fact deal with a similar issue is Goodwin. 814 F.3d 901. The Goodwin court rejected an argument that a prisoner’s intellectual disability claim was not ripe until the Supreme Court had issued its opinion in Hall. Id. at 903 n.1. Goodwin relied on Panetti and Martinez-Villareal for his argument. Id. We found those two cases inapplicable because they involved competency claims that could not become ripe until the State set an execution date. Id. “Goodwin’s Eighth Amendment claim, by contrast, ripened long ago.” Id. Admittedly, the Goodwin decision does not deal with the precise issue before us. But it nonetheless analyzes the ripeness of an Atkins claim, and we therefore find its holding persuasive.

In conclusion, whether Davis is now, in 2017, intellectually disabled has no bearing on whether he had the requisite moral culpability for the murder that he committed in 1990. See Bowling, 422 F.3d at 436. The issue of intellectual disability, therefore, does not suddenly become ripe when the execution date is imminent.

II. Conclusion

Accordingly, we deny Davis’s motion to recall the mandate or, alternatively, for leave to file a successive habeas petition and to stay the execution. We grant Davis’s motion to file an overlength brief.

KELLY, Circuit Judge,

dissenting.

Don Davis was convicted of capital murder in 1992, and sentenced to death. On April 1, 2002, after exhausting his state-court remedies, he filed a petition for writ of habeas corpus in the United States District Court for the Western District of Arkansas. On June 20, 2002, while his petition was pending, the Supreme Court decided Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that executing the intellectually disabled is “cruel and unusual punishment” and therefore violates the Eighth Amendment. Davis did not raise any claims based on Atkins before the district court. On January 28, 2004, the district court denied his petition.

Davis appealed the denial of the petition to this court. While his appeal was pending, he moved for a remand to the district court to hold an evidentiary hearing to determine whether he was intellectually disabled and therefore ineligible to be executed under Atkins. The panel, noting the unusual procedural posture, considered the motion to be the “functional equivalent of a second or successive petition for habeas corpus.” Under 28 U.S.C. § 2244(b), a petitioner may not bring a successive habeas application on a claim that relies on new law when it was not presented in a prior application, unless the new law was “previously unavailable.” The panel explained that because Atkins was issued while Davis’ habeas petition was pending in district court, he had an opportunity to raise it at that point, and failed to do so. Accordingly, in its 2005 opinion the panel concluded that § 2244(b)’s ban on successive petitions applied, and denied both the motion to remand and the petition for writ of habeas corpus.

On February 27, 2017, the Arkansas governor scheduled Davis’ execution for April 17, 2017. On April 12, 2017, Davis filed the instant motions to recall the mandate or, alternatively, for leave to file a successive habeas petition and to stay the execution. The motions argue that Davis is entitled to an evidentiary hearing pursuant to Atkins to demonstrate that his upcoming execution would violate the Eighth Amendment’s bar against executing the intellectually disabled. Davis further argues that because he has presented a pri-ma facie case of intellectual disability, he is entitled to a stay of execution so the district court can consider the merits of his Atkins claim.

I. Successive Petition

In my view, Davis’ prior Atkins claim does not procedurally bar him from pursuing his present Atkins claim challenging his imminent execution. The Eighth Amendment categorically prohibits executing inmates who fall within one of three discrete classes: juveniles, the incompetent, and the intellectually disabled. Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). The Supreme Court has held that § 2244’s ban on successive petitions does not apply to a petitioner’s claim under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), that his scheduled execution would violate the Eighth Amendment because he is incompetent. Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). The Court explained that the petitioner’s prior habeas petition could not bar such a claim because it could not be adjudicated until the state obtained an execution warrant; it was only at that time that the execution became “imminent” and the petitioner’s “competency to be executed” could be determined. Id. at 644—45, 118 S.Ct. 1618. Panetti v. Quarterman—which the Supreme Court decided after the original panel denied Davis’ motion to remand — expanded the application of Martinez-Villareal, holding that § 2244’s ban on successive petitions did not apply where the petitioner raised a Ford claim for the first time after the state obtained an execution warrant, and after a prior habeas application had been denied. 551 U.S. 930, 945, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).

Like the Eighth Amendment prohibition on executing the incompetent, the Eighth Amendment prohibition on executing the intellectually disabled is “a substantive restriction on the State’s power to take the life” of an inmate. Atkins, 536 U.S. at 321, 122 S.Ct. 2242 (quoting Ford, 477 U.S. at 405, 106 S.Ct. 2595). Atkins highlighted retribution and deterrence as significant factors, recognizing that the lesser culpability of an intellectually disabled offender warrants exempting those offenders from the ultimate criminal penalty of death. Id. at 319-20, 122 S.Ct. 2242. But the Court has also said that “[n]o legitimate penological purpose is served by executing a person with intellectual disability ... [and t]o do so contravenes the Eighth Amendment, for to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.” Hall v. Florida, — U.S. -, 134 S.Ct. 1986, 1992, 188 L.Ed.2d 1007 (2014); accord Brumfield v. Cain, - U.S. -, 135 S.Ct. 2269, 2283, 192 L.Ed.2d 356 (2015) (“[I]t would violate the Eighth Amendment to permit the State to impose the ‘law’s most severe sentence,’ Hall, 572 U.S. at -, 134 S.Ct. at 1993, and take his life as well.” (emphasis added)).

Thus, although Martinez-Villareal and Panetti were decided in the context of Ford claims, their reasoning applies to Atkins claims as well: Under either type of claim, the question of whether the inmate is constitutionally eligible for execution is ripe for resolution only when the execution is imminent. See Sasser v. Hobbs (Sasser II), 735 F.3d 833, 846 (8th Cir. 2013) (explaining that the “timing of proof’ matters in an Atkins claim because an individual’s intellectual disability can improve over time, and because an individual “may have better evidence of his condition at one point in life than another”); see also Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003) (“[A] habeas petition raising a claim that had not arisen at the time of a previous petition is not barred by § 2244(b).... ”). Indeed, we have previously recognized the application of Martinez-Villareal and Panetti to Atkins claims: In Nooner v. Niles (Nooner II), we assumed that Martinez-Villareal and Panetti applied to both Ford and Atkins claims. 499 F.3d 831, 833 n.2 (8th Cir. 2007). Mental illness and intellectual disability are different in significant ways, including how stable a diagnosis is over time. But these differences are insufficient to warrant different treatment in this context, because the Eighth Amendment prohibits executing both the incompetent and the intellectually disabled. Significantly, no court has ever decided whether Davis is in fact intellectually disabled at any time during his criminal proceedings.

In my view, the bar on successive petitions does not apply to Atkins claims filed after the state has obtained an execution warrant, and thus it does not apply to Davis’ present Atkins claim, and “there was accordingly no need for him to apply for authorization to file a second or successive petition.” Martinez-Villareal, 523 U.S. at 642, 118 S.Ct. 1618. It is therefore immaterial that Davis previously tried to raise an Atkins claim before us in 2005. Such a claim could not have challenged the constitutionality of Davis’ now-imminent execution; it was filed almost twelve years before the Arkansas governor scheduled Davis’ execution for April 17, 2017. See Panetti, 551 U.S. at 946, 127 S.Ct. 2842; Martinez-Villareal, 523 U.S. at 644-45, 118 S.Ct. 1618 (acknowledging that the district court was unable to resolve the prisoner’s Ford claim at the time of his initial habeas filing); Nooner II, 499 F.3d at 834 (“[T]he setting of an execution date caused the ... claims to become ripe.”). Because Davis’ execution is imminent, statutory restrictions on the filing of successive habeas petitions should not prevent the court from determining whether he belongs to one of the three discrete classes of inmate that the Supreme Court has held the United States Constitution prohibits executing. See Roper, 543 U.S. at 568, 125 S.Ct. 1183.

Goodwin v. Steele, 814 F.3d 901 (8th Cir. 2014) (per curiam) is not to the contrary. There, the petitioner argued that even though he had previously raised an Atkins claim, his petition should not be barred because it was not based on Atkins, but on new law that was not previously available: the Supreme Court’s decision in Hall v. Florida, — U.S. -, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), which held unconstitutional Florida’s per se rule that a defendant with an IQ over 70 was not intellectually disabled and could therefore be executed. Goodwin, 814 F.3d at 903. The petitioner additionally argued that his claim was not a successive petition under Martinez-Villareal and Panetti because it was not “ripe” until Hall was decided. Id. at 903 n.1. “Stat[ing] our conclusions briefly because of the exigency of time,” we rejected both arguments and denied the petitioner’s motion for authorization to file a second or successive habeas application and motion for stay of execution. Id. at 903-04. Goodwin did not cite Nooner II, nor did it address the question here, namely, whether the petitioner’s claim of •intellectual disability at the time of execution could not have been decided before the state set his execution date. See United States v. Knowles, 817 F.3d 1095, 1097 (8th Cir. 2016) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” (quoting Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925))).

II. Stay of Execution

Because I believe Davis may file a successive petition based on Atkins as it applies to Davis’ execution, I next address Davis’ motion to stay his execution pending the resolution of his new motion. In concluding that Davis is entitled to a stay of his execution, I consider the “likelihood of success on the merits” of Davis’ motion for an Atkins hearing, “the relative harms to the parties,” and “the extent to which [Davis] has delayed unnecessarily in bringing the claim.” Nooner v. Norris, 491 F.3d 804, 808 (8th Cir. 2007) (Nooner I) (quoting Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004)). All three factors weigh in favor of staying Davis’ execution.

1. Likelihood of Success on the Merits

A federal court “must hold an evidentia-ry hearing” on a defendant’s Atkins claim if the defendant “did not receive a full and fair evidentiary hearing in state court” and there is a factual dispute about the defendant’s intellectual capacity. Simpson v. Norris, 490 F.3d 1029, 1035 (2007). An allegation that a defendant is intellectually disabled as that term is defined in Atkins is sufficient to trigger the court’s responsibility to conduct an Atkins hearing. Sasser v. Norris, 553 F.3d 1121, 1125 (8th Cir. 2009) (Sasser I), abrogated on other grounds by Wood v. Milyard, 566 U.S. 463, 132 S.Ct. 1826, 1834, 182 L.Ed.2d 733 (2012) (quoting Simpson, 490 F.3d at 1035).

Atkins left to the states the tasks of defining intellectual disability and establishing procedures to implement Atkins’ prohibition on the execution of mentally disabled offenders. Atkins, 536 U.S. at 318, 122 S.Ct. 2242. States are free to provide additional protection to intellectually disabled offenders, provided that protection encompasses at least those individuals Atkins noted are generally understood as intellectually disabled. In Arkansas, intellectual disability means “(A) Significantly subaverage general functioning accompanied by a significant deficit or impairment in adaptive functioning manifest in the developmental period, but no later than age eighteen (18) years of age; and (B) a deficit in adaptive behavior.” Ark. Code Ann. § 5-4-618(a)(1). “[T]he Arkansas Supreme Court has consistently construed its state’s statutory right to be concurrent with the federal constitutional right established in Atkins.” Sasser II, 735 F.3d at 842 (citing Anderson v. State, 357 Ark. 180, 163 S.W.3d 333, 354-55 (2004)).

Davis’ motion for an Atkins hearing is likely to succeed on the merits because Davis alleges that he is intellectually disabled as that term is defined in Atkins and in Arkansas. Davis presents evidence of subaverage general functioning and a deficit in adaptive behavior. Though IQ scores are relevant to determining whether an offender has presented evidence of subav-erage general functioning, there is no strict cut-off with respect to an offender’s IQ score. See Hall, 134 S.Ct. at 2001 (invalidating Florida law establishing a strict cut off at an IQ of 70); Sasser II, 735 F.3d at 843. Instead, “it is possible to diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive behavior because there is a measurement error of approximately 5 points in assessing IQ, depending on the testing instrument.” Id. (citation omitted) (alterations omitted). Davis offers evidence that he scored between 70 and 75 (taking into account the margin of error) on two IQ tests: one performed when he was 9 years old and one performed when he was 12 years old, and achieved a higher score on a third. Furthermore, Davis presents a report authored by Dr. Daniel Martell, a forensic psychologist, explaining that Davis’ records indicate that he was exposed to alcohol while in the womb, was born with the umbilical cord wrapped around his neck, and has exhibited behavior consistent with left hemisphere brain damage, including abnormal speech, verbal learning disability, and ADHD, throughout his childhood and adult life. These allegations support the need for an evidentiary hearing to assess whether Davis exhibits subaverage general intellectual functioning.

With respect to demonstrating a deficit in adaptive behavior, Davis presents evidence that he was unable to complete school and struggled with social relationships as a child and as an adult. Davis was unable to live independently due in part to his inability to work at anything but a menial labor job for more than a few weeks at a time. Dr. Martell noted that Davis experienced profound life events that may have contributed to psychological and behavioral abnormalities, including abandonment and sexual abuse. Dr. Mar-tell explained that Davis’ maladaptive behaviors are consistent with intellectual disability, though Dr. Martell noted that a more comprehensive evaluation is needed to determine whether Davis is currently intellectually impaired.

The pleading standard a defendant must meet to demonstrate he is entitled to an Atkins hearing is a low one. See Brumfield v. Cain, — U.S. -, 135 S. Ct. 2269, 192 L.Ed.2d 356 (2015) (finding Lousiana standard that a defendant must raise a “reasonable doubt” as to their intellectual disability before being entitled to an Atkins hearing consistent with Atkins); Simpson, 490 F.3d at 1035. “There is no question the allegations in [Davis’] petition are as adequate as Simpson’s pleading threshold where the petitioner ‘alleged that he is mentally retarded as Atkins defines that condition’ in order to obtain an evidentiary hearing on his mental retardation claim.” Sasser I, 553 F.3d at 1126 (quoting Simpson, 490 F.3d at 1035); see also Jackson v. Norris, 615 F.3d 959, 963-64 (8th Cir. 2010) (finding that the defendant’s petition “satisfied the pleading standard of Simpson and Sasser I, by expressly incorporating” evidence of trouble in school, an IQ score of 70, difficulty with visual motor and expressive and receptive language skills, and diagnoses of ADHD and antisocial personality disorder). Therefore, this factor weighs in favor of granting Davis’ motion to stay his impending execution.

2. Relative Harm to the Parties

The balance of harms here unquestionably weighs in Davis’ favor. While the state has a significant interest in the finality of judgments, see Nelson v. Campbell, 541 U.S. 637, 650, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), in this case, the state’s interest in promptly executing Davis is also rooted in the imminent expiration of its supply of midazolam and its concern that it may be unable to obtain more. The state’s interest in the finality of judgments and the use of its midazolam supply prior to its expiration are outweighed by Davis’ interest in ensuring that his execution is not carried out in violation of the constitutional prohibition against executing a person who is intellectually disabled.

3. Delay

Davis filed his motions to recall the mandate or, alternatively, for leave to file a successive habeas petition and to stay the execution on April 12, 2017, after the Arkansas governor scheduled his execution for April 17, 2017. As explained above, Davis’ intellectual capacity at the time of his execution could not be adjudicated until his execution was imminent. See Nooner II, 499 F.3d at 834 (citing Martinez-Villareal, 523 U.S. at 644-45, 118 S.Ct. 1618). While the Supreme Court has noted “a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay,” Nelson, 541 U.S. at 650, 124 S.Ct. 2117, this is not such a case. Instead, Davis brought the instant challenge to his execution soon after the governor of Arkansas signed the order setting Davis’ execution date. Nooner I, 491 F.3d at 809. Because Davis focuses on whether he is intellectually disabled such that he may not be executed — not just that he may not be sentenced to death — he has not unreasonably delayed in filing this motion for stay. See id. at 810 (discussing Panetti and noting that “a condition of the mind which may not manifest itself until so late a time that a stay becomes necessary in order to evaluate properly the asserted mental deficiency” presents an argument distinct from a challenge to execution protocol).

III. Conclusion

I would grant Davis’ motion for leave to file a successive habeas corpus application and his motion to stay his execution pending resolution of his Atkins claim. For these reasons, I respectfully dissent.

      . The Atkins decision uses the term "mentally retarded.” The Court has more recently used the updated term "intellectually disabled.” Hall v. Florida,- U.S. -, 134 S.Ct. 1986, 1992, 188 L.Ed.2d 1007 (2014).

      . The Atkins decision uses the term "mentally retarded.” The updated term "intellectually disabled” has the same meaning.

      . This conclusion is not inconsistent with the previous panel’s denial of Davis’ 2005 motion to remand. To the extent that motion presented an adjudicable claim of intellectual disability, it could not have been premised on the theory that Davis would be intellectually disabled at the time of his execution; rather, it could only have been premised on the theory that Davis was intellectually disabled at the time he committed the offense. See Sasser II, 735 F.3d at 846 (explaining that the Eighth Amendment overlaps with an Arkansas statute, Ark. Code Ann. § 5-4-618, to ”preclud[e] the execution of an individual who can prove mental retardation either (a) at the time of committing the crime or (b) at the presumptive time of execution”).

      . Though I am mindful that there exists an important distinction between the inquiry with respect to whether Davis was intellectually disabled at the time of the crime and whether Davis will be intellectually disabled when he is executed, some evidence — including that establishing an onset of symptoms prior to age 18 — is relevant to both inquiries. See Sasser II, 735 F.3d at 849.


source: Caselaw Access Project

license: Public Domain

text:
    Ledell LEE; Marcel Wayne Williams; Kenneth Dewayne Williams, Plaintiffs-Appellants Bruce Earl Ward; Jason Farrell McGehee, Plaintiffs Stacey Eugene Johnson, Plaintiff-Appellant Jack Harold Jones, Jr., Intervenor v. Asa HUTCHINSON, in his official capacity; Wendy Kelley, in her capacity as Director, Defendants-Appellees Arkansas Department of Correction; Arkansas Parole Board, Defendants John Felts, in his official capacity; John Belken, in his official capacity; Andy Shock, in his official capacity; Dawne B. Vandiver, in her official capacity; Jerry Riley, in his official capacity; Abraham Carpenter, Jr., in his official capacity; Lona McCastlain, in her official capacity, Defendants-Appellees
    No. 17-1822
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 19, 2017
    Filed: April 20, 2017

      Scott Braden, Julie Vandiver, Assistant Federal Public Defenders, Jamie Giani, Federal Public Defender’s Office, Jeffrey M. Rosenzweig, Little Rock, AR, for Plaintiffs-Appellants.
    Marcel Wayne Williams, Pro se.
    Kenneth Dewayne Williams, Pro se.
    Nicholas Jacob Bronni, Vincent P. France, Gary L. Sullivan, Assistant Attorneys General, Attorney General’s Office, Little Rock, AR, for Defendants-Appel-lees.
    Before WOLLMAN, LOKEN, RILEY, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges.
   PER CURIAM.

Four Arkansas death-row inmates appeal the denial of their motions for a preliminary injunction prohibiting the execution and move this court for a stay of execution. For the reasons below, we deny this motion.

On February 27, 2017, Arkansas Governor Asa Hutchinson scheduled executions for eight inmates to take place over the course of eleven days in April 2017. Several weeks later, the inmates brought two consolidated challenges seeking to prevent their executions. In the first challenge, all eight inmates argued that the State’s method of execution, by itself and in combination with the execution schedule, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We vacated the district court’s order granting a preliminary injunction in that case. See McGehee v. Hutchinson, No. 17-1804, 854 F.3d 488, 494, 2017 WL 1404693 (8th Cir. 2017). In this second collective challenge, inmates Ledell Lee, Marcel Williams, Kenneth Williams, Bruce Ward, Jason McGehee, and Stacey Johnson challenged the application of the State’s clemency procedure, arguing that the Arkansas Parole Board (“the Board”) violated numerous Arkansas statutes, regulations, and policies- and thereby violated their due process rights. This matter comes before us now.

After conducting a three-day hearing, the district court denied the State’s motion to dismiss and also denied a motion for preliminary injunction brought by the inmates. As the inmates stress, the district court concluded that the clemency process was “at times imperfect” under Arkansas law, regulations, and policies, because (1) notice to stakeholders did not comply with statutory requirements; (2) the Board held hearings within thirty days of the execution date; (3) the clemency deadlines were moved forward, depriving inmates of several additional days to put their applications together; and (4) the clemency hearings were reduced from two hours to one hour. Notwithstanding these findings, however, the district court concluded that the clemency procedure still satisfied minimal due process and that there was insufficient evidence that the “imperfections, the deviations from procedure ... made a real difference.” Four of the six inmates appeal the denial of their motions for preliminary injunction, arguing that the Board’s procedures violated their due process rights and made it functionally impossible for them to receive recommendations for clemency. The inmates also moved to stay their executions pending appeal. The judges in active service on this court voted to hear this motion initially en banc.

As we have previously explained, “a stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir. 2015) (per curiam) (quoting Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006)). To prevail, inmates “must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits.” Id. (quoting Hill, 547 U.S. at 584, 126 S.Ct. 2096). “It is not enough merely to file an action that can proceed under § 1983. A movant must present evidence to show a significant possibility of success on the merits of his claim.” Id. (citations omitted).

At the broadest level, the inmates assert that the violations of Arkansas law, regulations, and policy during the clemency process violated the Due Process Clause of the Fourteenth Amendment. As an initial matter, we note that, to the extent the inmates argue that these irregularities themselves constitute a violation of their due process rights, this argument fails under well-established law. We agree with the Eleventh Circuit that adopting this argument

would conflict with a long line of Supreme Court decisions holding that a violation of state procedural law does not itself give rise to a due process claim. See, e.g., Sandin v. Conner, 515 U.S. 472, 482 [115 S.Ct. 2293, 132 L.Ed.2d 418] (1995) (decrying the notion that a violation of state prison regulations provides a basis for a procedural due process claim because it “creates disincentives for States to codify prison management procedures”); Olim v. Wakinekona, 461 U.S. 238, 250-51 [103 S.Ct. 1741, 75 L.Ed.2d 813] (1983) (explaining that “[p]rocess is not an end in itself’ and holding that a State’s creation of administrative procedures “does not create an independent substantive right” under the Due Process Clause); cf. Snowden v. Hughes, 321 U.S. 1, 11 [64 S.Ct. 397, 88 L.Ed. 497] (1944) (“Mere violation of a state statute does not infringe the federal Constitution.”).

Gissendaner v. Comm’r, Ga. Dept of Corr., 794 F.3d 1327, 1333 (11th Cir. 2015). Thus, even if the inmates are correct that the Board failed to comply with Arkansas law, regulations, and policy, this in and of itself is insufficient to demonstrate a significant possibility of success on the merits.

The inmates raise two principal arguments in their motion for stay of execution. First, they contend that the manner in which the Board conducted their clemency process constitutes a violation of their right to due process. However, as the district court observed, the inmates have a steep hill to climb in making this claim. “Because clemency is extended mainly as a matter of grace, and the power to grant it is vested in the executive prerogative, it is a rare case that presents a successful due process challenge to clemency procedures themselves.” Noel v. Norris, 336 F.3d 648, 649 (8th Cir. 2003) (per curiam). Indeed, the Arkansas Constitution vests the governor with “power to grant reprieves, commutations of sentences, and pardons, after convictions; and to remit fines and forfeitures, under such rules and regulations as shall be prescribed by law,” Ark. Const. Art. VI, sec. 18, and such clemency decisions are generally unreviewable under state law, see id.; Ark. Code Ann. § 16-93-204. That said, in Ohio Adult Parole Authority v. Woodard, a divided Supreme Court recognized that “some minimal procedural safeguards apply to clemency proceedings.” 523 U.S. 272, 289, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (O’Connor, J., concurring).

Based on the record before us, we conclude that the district court was correct in determining that, despite the procedural shortcomings in the clemency process, the inmates received the minimal due process guaranteed by the Fourteenth Amendment. Our en banc decision in Winfield v. Steele, 755 F.3d 629 (8th Cir. 2014) (per curiam), is instructive. In that case, a prison staff member was dissuaded from filing a letter in support of a Missouri inmate’s clemency application. Despite this irregularity, which went to the very heart of the merits of the inmate’s clemency appeal, we vacated a related district court grant of a motion to stay, finding that, although “the procedures employed by the state actors in this case may not have been ideal ... they do not approach the arbitrariness contemplated by Justice O’Connor in Woodard: a coin flip or an arbitrary denial of access to any clemency process.” Id. at 631. As the procedural irregularities here are even less consequential than those in Winfield, especially given that they did not affect the ability of the Board to give “due and serious consideration to each of [inmates’] applications,” we are compelled to conclude that the inmates here have not demonstrated a significant possibility of success on the merits of their claim.

Second, the inmates suggest that the district court abused its discretion in determining that their procedural impossibility claim “evaporated” at the moment the Board recommended against granting clemency. A straightforward reading of the Arkansas statute underlying this argument shows why the inmates are incorrect as a matter of state law. Section 16-93-204(e) requires that the Board provide thirty-day notice “before submitting to the Governor a recommendation that an application for pardon, commutation of sentence, or remission of fine or forfeiture be granted.” Thus, there is simply no requirement to provide notice in the alternative scenario, where the Board recommends against granting clemency. For this reason, the district court explained, it granted a stay as to inmate McGehee, held in abeyance inmate Jones’s motion to stay, and denied the preliminary injunction as to the other inmates.

Accordingly, the inmates have not shown a significant possibility of success on the merits, and their motion for stay is denied.

KELLY, Circuit Judge,

dissenting.

On February 27, 2017, the Governor of Arkansas set execution dates for eight men over the course of eleven days, beginning with two executions on the night of April 17, 2017, and then two more on each of April 20, 24, and 27, 2017. The four appellants here are set to be executed on April 20, 24, and 27. At most, this schedule left appellants with 59 days for their clemency process.

The truncated timeframe for appellants to pursue clemency violated numerous provisions of Arkansas law and policies governing the clemency process. Arkansas requires filing deadlines for clemency petitions to be set no later than 40 days prior to the execution. Ark. Admin. Code § 158.00.1-4.8. But here, the district court found that filing deadlines for several appellants were set less than 40 days before execution. This schedule left Lee and Johnson with 11 days to prepare their applications, Marcel Williams with 16 days, and Kenneth Williams with 18 days. Arkansas’ statute also states that the Parole Board “shall solicit the written or oral recommendation” from the committing court, the prosecuting attorney, the county sheriff, and, if requested, the victim or victim’s next of kin before the Board considers an application. Ark. Code Ann. § 16-93-204(d). The statute additionally requires that the Board “shall notify the victim or the victim’s next of kin” of the clemency hearing. Id. The district court held that appellants “made a substantial showing that the statutorily required notice to stakeholders was ... not made as the law requires.” Although the Parole Board’s Policy Manual states that applicants are entitled to two-hour hearings, the district court found appellants were limited to one hour to present their evidence and arguments. Finally, the Parole Board must notify the public and all stakeholders of its recommendation that clemency be granted 30 days before submitting it to the Governor. Ark. Code Ann. § 16-93-204(e). Therefore, the clemency hearing must be held at least 30 days prior to the execution date. Ark. Admin. Code § 158.00.1-4.8. None of the appellants’ clemency hearings occurred 30 days before their executions dates, leading the district court to conclude that “the schedule that was followed made it impossible simply in terms of the calendar for the board to comply with this orderly procedure ... that is outlined in the law.”

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Glossip v. Gross, - U.S. -, 135 S.Ct. 2726, 2736-37, 192 L.Ed.2d 761 (2015) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). We review a district court’s ruling on a motion for preliminary injunction and stay of execution for abuse of discretion. Nooner v. Norris, 491 F.3d 804, 807 (8th Cir. 2007). “An abuse of discretion occurs when the district court bases its decision on an erroneous application of the law or a clearly erroneous finding of fact.” See Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 967 (8th Cir. 2005). I find no clear error in the factual conclusions reached by the district court, but, applying the appropriate legal analysis, I conclude that the appellants have made a showing of a significant possibility that they are likely to succeed on the merits of their due process claim. Because the remaining interests also favor the appellants, I conclude a grant of the stay of execution is warranted.

The Supreme Court in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), recognized that death row inmates have a due process interest in their state clemency proceedings. The holding in that case was provided by Justice O’Connor’s concurring opinion. See Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1268, 1269 n.2 (11th Cir. 2014). Her opinion acknowledges that the “life” interest protected by the Due Process Clause guarantees “some minimal procedural safeguards” for state clemency proceedings involving death row inmates. Woodard, 523 U.S. at 289, 118 S.Ct. 1244 (O’Connor, J., concurring). Justice O’Connor provided two examples of possible due process violations: where “a state official flipped a coin to determine whether to grant clemency” or where “the State arbitrarily denied a prisoner any access to its clemency process.” Iff The opinion then reviewed the clemency procedures provided by Ohio, and found that the respondent had not alleged a due process violation because “[t]he process respondent received ... comports with Ohio’s regulations and observes whatever limitations the - Due Process Clause may impose on clemency proceedings.” Id. at 290, 118 S.Ct. 1244.

The appellants here argue that Arkansas violated their due process rights by arbitrarily denying them clemency procedures required by Arkansas law, without which they could not meaningfully access the clemency process. They concede that Arkansas’ procedures, if followed, comport with the “minimal procedural safeguards” required by Woodard. But, they contend that Arkansas’ failure to follow its own procedures constitutes a violation of Due Process because these failures implicate their right to notice and an opportunity to be heard, and make it impossible to benefit from a grant of clemency.

Before today, our court had not addressed the specific question presented— namely, whether a clemency applicant facing execution can state a due process claim alleging that the state arbitrarily denied him the procedures explicitly set forth by state law. Justice O’Connor’s opinion suggests that compliance with state statutory procedures is a component of the minimal procedural safeguards to which death row clemency applicants are entitled. See Woodard, 523 U.S. at 289-90, 118 S.Ct. 1244 (O’Connor, J., concurring) (finding no due process violation where “[t]he process respondent received ... comports with Ohio’s regulations” and specifically noting that “the Ohio Adult Parole Authority complied with all [the Ohio Death Penalty Clemency Procedure] instructions here,” including timely sending notice of and setting the hearing date). Relying on Woodard, the majority of circuits appear to permit such a claim. For example, in analyzing a claim similar to the one brought here, the Tenth Circuit held that “the minimal application of the Due Process Clause only ensures a death row prisoner that he or she will receive the clemency procedures explicitly set forth by state law, and that the procedure followed in rendering the clemency decision will not be wholly arbitrary, capricious or based upon whim, for example, flipping a coin.” Duvall v. Keating, 162 F.3d 1058, 1061 (10th Cir. 1998) (emphasis added) (citing Woodard, 523 U.S. at 289, 118 S.Ct. 1244 (O’Connor, J., concurring)). The Tenth Circuit applied this standard again in Gardner v. Garner, 383 Fed.Appx. 722, 726 (10th Cir. 2010) (“We must focus solely on the Board’s compliance with its own rules and its avoidance of wholly arbitrary or capricious action.”). Other courts appear to be in accord with this view. See Tamayo v. Perry, 553 Fed.Appx. 395, 402 (5th Cir. 2014) (“We conclude that he has failed to show a substantial likelihood that he could demonstrate the Board violated its policies.”); Baze v. Thompson, 302 S.W.3d 57, 60 (Ky. 2010) (“This minimal application requires only that a death row prisoner receive the clemency procedures explicitly set forth by state law.”); see also Mann v. Palmer, 713 F.3d 1306, 1316 (11th Cir. 2013) (holding due process claim would be futile because “Florida law did not obligate the Governor to grant Mann a second clemency hearing before he signed Mann’s current death warrant”).

However, some courts have been hesitant to grant relief based on the contention that the clemency procedure did not accord with state law. For example, two members of the Eleventh Circuit, in dicta, in Gissendaner v. Comm’r, Georgia Dep’t of Corr., 794 F.3d 1327, 1333 (11th Cir. 2015) held that “[n]othing in Justice O’Connor’s concurring opinion suggests that a clemency board’s compliance with state laws or procedures is part of the ‘minimal procedural safeguards’ protected by the Due Process Clause.” In support of this conclusion, the court cited Supreme Court cases holding that state prison regulations do not create a liberty interest under the Due Process Clause. Id (citing Sandin v. Conner, 515 U.S. 472, 482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) and Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983)). But here, the appellants do not rely on Arkansas’ clemency procedures to establish their due process interest; such an interest in “life” is already established by Justice O’Connor’s opinion in Woodard. Rather, they rely on Arkansas’ procedural rules at step two of the due process analysis, as evidence that the procedures followed by the state were constitutionally insufficient. See Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (“We examine procedural due process questions in two steps: the first asks whether there exists a liberty[, life,] or property interest which has been interfered with by the State, the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” (citations omitted)); see also Woodard, 523 U.S. at 293 n.4, 118 S.Ct. 1244 (Stevens, J., dissenting) (“[H]aving established [clemency] proceedings, they must comport with due process.” (citing Evitts v. Lucey, 469 U.S. 387, 393, 400-01, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985))).

Prior to today, our circuit had not explicitly taken a position on the viability of the claim the appellants bring here. However, several cases indicated that such a claim should be available. See Noel v. Norris, 336 F.3d 648, 649 (8th Cir. 2003) (“[W]e cannot say that the process was so arbitrary as to be unconstitutional or that the state prohibited Mr. Noel from using the procedure that it had established.”); Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000) (holding that due process violation in state clemency proceeding can occur where the state “unconscionably interferes with a process that the State itself has created”); Whitmore v. Gaines, 24 F.3d 1032, 1034 (8th Cir. 1994) (“In this case, the board conducted its clemency proceedings in accord with the procedures set forth in the state statute, thus fulfilling its obligations to Whitmore.”); see also Winfield v. Steele, 755 F.3d 629, 632, 634 (8th Cir. 2014) (en banc) (five members of the court relied on a standard similar to the Tenth Circuit’s).

Although the state standards alone do not dictate the process that is due, see Swarthout v. Cooke, 562 U.S. 216, 221-22, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) (per curiam), here, the appellants’ claim relies on the violations of state procedural rules to demonstrate that they were arbitrarily denied the ability to benefit from the clemency process. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government.’ ” (quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974))). Specifically, Arkansas Statute § 16-93-204(e) requires the Parole Board to issue a public notice and notice to all stakeholders of its intention to recommend that the Governor grant an applicant’s clemency application at least 30 days or more before submitting said recommendation. Because none of the appellants’ clemency hearings were scheduled 30 days before their execution dates, the appellants would have been executed before the Governor could, consistent with the statutorily required procedure, act on their clemency applications. Only a stay of execution from the court, such as the one the district court issued for Jason McGehee, could have ensured appellants’ constitutional right to “any access to [Arkansas’] clemency process.” Woodard, 523 U.S. at 289, 118 S.Ct. 1244 (O’Connor, J., concurring). The district court was not clearly erroneous in concluding that “it was impossible from the beginning, once the schedule was laid in, it was impossible for the board to comply. That speaks to me of interference and arbitrariness.” See Young, 218 F.3d at 853 (due process violation where the state “unconscionably interferes with a process that the State itself has created”).

As the appellants correctly point out, the fact that only McGehee and none of the others received a clemency recommendation from the Board has no bearing on the analysis. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (“It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing....” (quoting Fuentes v. Shevin, 407 U.S. 67, 87, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972))); Duvall, 162 F.3d at 1061 (“We underscore that our review is limited to analyzing the procedures used during the clemency proceedings and not the substantive merits of the clemency decision.”). Requiring a clemency applicant to show that he would receive a grant recommendation from the Board in order to obtain a clemency process that would permit time for the Governor to grant clemency puts the cart before the horse. Thus, I disagree with the court’s conclusion that, because the Board recommended granting clemency for McGehee, he should be treated differently from the appellants. The arbitrary denial of state procedural protections based on the appellants’ success (or lack thereof) at their procedurally-compromised clemency hearings should not be sanctioned after the fact.

Appellants have also shown that they have a significant possibility of succeeding on their due process claim because the state procedural violations implicate their right to notice and an opportunity to be heard in the clemency process. Such rights are fundamental to due process. See Morrissey v. Brewer, 408 U.S. 471, 485-89, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The district court did not clearly err in finding that the appellants “made a substantial showing that the statutorily required notice to stakeholders was inadequate, that it was not made as the law requires.” It specifically concluded that while government officials, such as the Attorney General, received notice of the appellants’ applications, other stakeholders, such as victims, the victims’ next of kin, and the committing judges, likely did not. The district court found such “disparate treatment of some stakeholders” “is arbitrary.” It further found the lack of notice “important ... on the due process component of a meaningful opportunity to be heard.” See Wolff, 418 U.S. at 564, 94 S.Ct. 2963 (finding in the parole context that “[pjart of the function of notice is to give the charged party a chance to marshal the facts in his defense”). The district court connected the lack of notice to stakeholders to the appellants’ ability to present their cases to the Board, concluding that statements from a prosecutor or judge “are very powerful pieces of evidence in the clemency process.” The only death row inmate to receive a clemency recommendation, the district court noted, had submitted a letter from a judge to the Board. The appellants assumed that notice was provided in accordance with the statute when preparing their clemency applications, when in fact, it had not been. See Wilson v. U.S. Dist. Court for N. Dist. of California, 161 F.3d 1185, 1187 (9th Cir. 1998) (“Siripongs’ assertion that the state’s communications misled his counsel about the issues to be considered in the clémency proceeding states a claim of a violation of due process.”). Without this notice, the appellants were deprived of a key source of evidence to support their clemency applications.

I conclude that the lack of notice in combination with the other statutory violations — such as the shortened period to prepare applications, the reduction in the hearing time, and the impossibility that the Governor could act on the recommendation of a grant of clemency in the time allotted — create a significant possibility that the appellants can succeed in showing that the procedure followed in rendering their clemency decisions was wholly arbitrary. See Faulder v. Texas Bd. of Pardons & Paroles, 178 F.3d 343, 345 (5th Cir. 1999) (examining petitioner’s objections to parole board’s procedures “either individually or cumulatively under the facts of this case”). The deviations from the procedural rules in this case were magnified by the fact that the Board was faced with six death row inmates’ clemency petitions, which the district court found “generally bewildered” the state and “led to error.” Because of Arkansas’ procedural failures, the appellants here did not have “ample opportunity to present [their] best case to the Board,” nor did the Board or the Governor have time to give “it appropriate consideration.” Faulder, 178 F.3d at 345.

The remaining factors also support granting a stay of execution. See Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). The only reason for the expedited clemency process and the abandonment of state clemency procedures was Arkansas’ contention that all of the appellants’ executions needed to be conducted before April 30 because the execution drugs Arkansas possessed were due to expire. By any measure, the appellants’ interest in their own lives is stronger than the state’s interest in their soon-to-expire drugs. Finally, members of the public, and in particular those impacted by appellants’ executions, have an interest in notice and an opportunity to be heard during the clemency process.

Clemency proceedings have an important role to play in the administration of the death penalty. See Harbison v. Bell, 556 U.S. 180, 194, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009) (holding that the Criminal Justice Act, 18 U.S.C. § 3559(e) authorizes federally appointed counsel to represent death row prisoners in state clemency proceedings); id. at 192, 129 S.Ct. 1481 (“Far from regarding clemency as a matter of mercy alone, we have called it the fail safe in our criminal justice system.” (quotation omitted)); Herrera v. Collins, 506 U.S. 390, 411-12, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (recognizing that “[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted” (footnote omitted)). Although the outcome of the clemency process is fully in the discretion of the executive, the clemency procedures cannot be arbitrarily applied against the appellants such that they are denied notice and a fair opportunity to present their application. Because I find that the appellants have made a showing of a significant possibility that they were denied due process in their clemency proceedings and the balance of equities tips in their favor, I would grant the motion to stay the executions.

      . The Honorable D.P. Marshall, Jr., United States District Judge for the Eastern District of Arkansas.

      . The district court found that the Parole Board made an exception to the 30-day policy here, and approved setting the dates less than 30 days before the appellants' execution dates. It did not find that the Parole Board approved any other exceptions to the clemency procedures. Nor could it make any exceptions to procedures guaranteed by statute.


author: SHEPHERD, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee v. Joel Augutuk MAYOKOK, Defendant-Appellant
    No. 16-1753
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 18, 2016
    Filed: April 24, 2017

      Counsel who represented the appellant was Mark D. Nyvold of Fridley, MN.

      Counsel who represented the appellee was Katharine Thornton Buzicky, AUSA, of Minneapolis, MN.
    Before BENTON and SHEPHERD, Circuit Judges, and EBINGER, District Judge.

      . The Honorable Rebecca Goodgame Ebinger, United States District Judge for the Southern District of Iowa, sitting by designation.

   SHEPHERD, Circuit Judge

In 2018, based upon a report from the National Center for Missing and Exploited Children that an e-mail address owned by Appellant, Joel Augutuk Mayokok, was being used to upload child pornography via Google Picasa, a photo-upload website, the Minnesota Bureau of Criminal Apprehension obtained a search warrant for Mayo-kok’s computers and found 986 images and 165 videos containing child pornography. Mayokok was charged by indictment with distribution and receipt of child pornography, both in violation of 18 U.S.C. § 2252(a)(2), and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Pursuant to a plea agreement, Mayokok pled guilty to receipt of child pornography and was sentenced to 24Ó months imprisonment and 15 years supervised release. The remaining counts of the indictment were dismissed.

On appeal, Mayokok asserts that the district court committed procedural error in calculating his offense level by applying a five-level enhancement after the court found that the offense involved the distribution of material involving the sexual exploitation of a minor for the receipt, or expectation of receipt, of a thing of value under USSG § 2G2.2(b)(3)(B). He likewise challenges the district court’s determination that a 15-year mandatory minimum sentence applies under 18 U.S.C. § 2252(b)(1) based upon Mayokok’s 2003 Minnesota conviction for possession of a pornographic work involving minors. Having jurisdiction in this appeal pursuant to 28 U.S.C. § 1291, we remand this matter to the district court for resentencing.

I.

In describing the criminal conduct supporting the plea of guilty to the charge of receipt of child pornography, the plea agreement stated:

On or about January 7, 2013, in the State and District of Minnesota, Defendant did knowingly receive a visual depiction using a means and facility of interstate and foreign commerce and that had been mailed, shipped and transported in interstate and foreign commerce, by computer, where the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct and such depiction was of such conduct. Specifically, Defendant received via email a video file entitled ..., which is a video [sic] pre-pubescent female who appears to be 7 to 10 years of age. The child is unclothed and is performing oral intercourse on an adult male.

The parties also agreed to a base offense level of 22 with the following enhancements: two levels for material involving prepubescent minors who had not attained the age of 12 years old, USSG § 2G2.2(b)(2); four levels for material portraying sadistic or masochistic conduct or other depictions of violence, USSG § 2G2.2(b)(4); and two levels for material involving the use of a computer or interactive computer service, USSG § 2G2.2(b)(6). The agreement further noted that the government believed “that the offense level should be further increased by 5 levels because the offense involved 600 or more images (USSG § 2G2.2(b)(7)), and 5 levels because the offense involved distribution with the expectation of [sic] a thing of value (but not for pecuniary gain) (USSG § 2G2.2(b)(3)(B)).” Mayokok did not agree to these two enhancements and he reserved the right to argue against their assessment. On the other hand, May-okok did agree to the statement of facts contained in the plea agreement.

In his presentence report (PSR) to the district court, the probation officer recommended both a five-level enhancement for an offense involving more than 600 images and a five-level enhancement because the offense involved the distribution of child pornography with the expectation of receiving a thing of value. With respect to the latter enhancement the PSR stated that Mayokok:

distributed the images with the expectation of receiving child pornography in return for the image uploaded on the photo-sharing website Google Pica-sa.... The nature of Google Picasa is to share photos. Therefore, the nature of the defendant’s conduct of uploading child pornography on Google Picasa was with the expectation to receive child pornography in return.

Mayokok submitted objections to the PSR and filed objections with the district court prior to sentencing asserting that there was a lack of factual support for the USSG § 2G2.2(b)(3)(B) enhancement. He alleged that there was insufficient evidence that Mayokok uploaded child pornography to the Google Picasa website or that it was uploaded with the expectation of receiving child pornography in return. He further objected that although Google Picasa allows photos to be uploaded, there was insufficient proof to allow the Court to conclude that Picasa operates as a file-sharing program or in a way that makes it reasonable to conclude that there was distribution and that it was done with the expectation of receiving child pornography in return. Mayokok also objected that insufficient proof exists that e-mails containing child pornography and sent to Mayo-kok were sought by Mayokok or that Mayokok distributed child pornography expecting child pornography in return.

At sentencing, the government presented no evidence in response to Mayokok’s objections with respect to the USSG § 2G2.2(b)(3)(B) enhancement. Nevertheless, the district court overruled the objections and applied the enhancement to May-okok’s offense level.

The plea agreement also contained May-okok’s admission that in 2003 he was convicted in Redwood County, Minnesota, of violating Minnesota Statute § 617.247, subdivision 4, Possession of Pornographic Work Involving Minors. Based upon this conviction, the United States asserted that a mandatory minimum sentence of 15 years and a maximum sentence of 40 years applies to Mayokok’s case, as the Minnesota conviction constitutes a conviction relating to the “possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography” pursuant to 18 U.S.C. § 2252(b)(1). Mayokok objected to the application of this mandatory minimum sentence. The district court overruled Mayokok’s objection.

II.

Mayokok asserts, and the United States agrees, that Mayokok made timely objections before the district court that the five-level enhancement for distribution of child pornography for the receipt or with the expectation of receiving a thing of value is not supported by the record, that the sentencing record does not support the enhancement, and that the district court erred in applying the enhancement to Mayokok’s offense level. The government thus joins Mayokok in asking that this matter be remanded for resentencing without the five-level USSG § 2G2.2(b)(3)(B) enhancement. We agree that remand is appropriate.

In reviewing a sentence, we first review for significant procedural error. United States v. Martin, 757 F.3d 776, 779 (8th Cir. 2014). Procedural error includes improperly calculating the Guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Further:

Application of sentencing enhancements must be supported by a preponderance of the evidence, and the government has the burden to prove the factual basis for an enhancement. It is well-established that, when a defendant disputes material facts in his PSR, the sentencing court must either refuse to take those facts into account or hold an evidentiary hearing. If the defendant objects to the factual basis for a sentencing enhancement, and the government fails to present evidence to prove that factual basis by a preponderance of the evidence, it is error to apply the enhancement.

United States v. Mitchell, 825 F.3d 422, 425 (8th Cir. 2016) (citations omitted) (internal quotation marks omitted).

Mayokok objected to the factual basis for the USSG § 2G2.2(b)(3)(B) enhancement and the government acknowledges in its brief “that the enhancement was not sufficiently supported in the record.” The transcript from the sentencing hearing reflects that evidence was presented showing that (1) on November 12, 2013, Mayokok uploaded an image to Google Picasa, and (2) Mayokok exchanged e-mails containing child pornography in July of 2013. But we have “not condoned application of the enhancement simply because a defendant uses a file-sharing program,” and no evidence was presented to establish the necessary proposition that Mayokok actually engaged in file sharing after he uploaded this image. See United States v. Dolehide, 663 F.3d 343, 348 (8th Cir. 2011) (“[T]he Government must present evidence that the defendant uploaded and downloaded files using LimeWire.”). Further, the emails discussed by the district court during the sentencing hearing establish only that Mayokok sent and received files via email. There is no evidence, however, that Mayokok sent those e-mails with the expectation of receiving a thing of value. Accordingly, it was error for the district court to apply the enhancement. United States v. Poor Bear, 359 F.3d 1038, 1042 (8th Cir. 2004) (“The evidence that the district court could rely on in making a factual determination [as to a Guidelines enhancement] include[] the unobjected-to portions of the PSR, the written factual basis of [a] plea agreement, and [evidence presented at an evidentiary hearing].”).

III.

Mayokok also appeals the district court’s imposition of the 15-year mandatory minimum sentence found in 18 U.S.C. § 2252(b)(1). We review de novo a challenge to the application of a mandatory minimum sentence. United States v. Sonnenberg, 556 F.3d 667, 669 (8th Cir. 2009). An individual who violates § 2252(a)(2) is subject to a 15-year minimum sentence if that person “has a prior conviction ... under the laws of any State relating to ... the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography.” § 2252(b)(1).

We employ a categorical approach to determine whether a prior conviction triggers a mandatory minimum sentence under § 2252(b)(1). United States v. Knowles, 817 F.3d 1095, 1097-98 (8th Cir. 2016). “Under this approach, the sentencing court looks to the fact of conviction and the statutory definition of the prior offense and determines whether the full range of conduct encompassed by the state statute qualifies to enhance the sentence.” Sonnenberg, 556 F.3d at 670 (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Thus, our present task is to determine whether the full range of conduct proscribed by Minnesota Statute section 617.247, subdivision 4 (2002), “relat[es] to” the variety of child pornography offenses described in § 2252(b)(1).

At the time of Mayokok’s conviction, section 617.247, subdivision 4 read as follows: “A person who possesses a pornographic work or a computer disk or computer ... containing a pornographic work, knowing or with reason to know its content and character, is guilty of a felony....” For the purpose of the above statute, subdivision 2 provided that the terms “Pornographic work” and “Sexual conduct” were given the definitions ascribed to them in section 617.246. That section, in turn, defined “Pornographic work” as:

(1) an original or reproduction of a picture, film, photograph, negative, slide, videotape, videodisc, or drawing of a sexual performance involving a minor; or
(2) any visual depiction, including any photograph, film, video, picture, drawing, negative, slide, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means that:
(i) uses a minor to depict actual or simulated sexual conduct;
(ii) has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct; or
(iii) is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexual conduct.

Minn Stat. § 617.246, subd. 1(f) (2002). It then defined the following acts as “sexual conduct”:

(1) an act of sexual intercourse, normal or perverted, including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal;
(2) sadomasochistic abuse, meaning flagellation, torture, or similar demeaning acts inflicted by or upon a person who is nude or clad in undergarments or in a revealing costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed;
(3) masturbation;
(4) lewd exhibitions of the genitals; or
(5) physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.

Id. § 617.246, subd. 1(e).

Under federal law, “ ‘child pornography’ means any visual depiction ... of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(A). “Sexually explicit conduct” is further defined as “actual or simulated (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person.” Id § 2256(2)(A).

To be sure, despite the many similarities in these statutes, one can conjure scenarios that violate one statute but not the other. Indeed, Mayokok succeeds in pointing out a number of examples in which this occurs. The question, however, is not whether the statutes criminalize exactly the same conduct, but whether the full range of conduct proscribed under section 617.246, subdivision 4 relates to the “possession ... of child pornography” as that term is defined under federal law. “The phrase ‘relating to’ carries a broad ordinary meaning, i.e., to stand in some relation to; to have bearing or concern; to pertain; refer; to bring into association or connection with.” Sonnenberg, 556 F.3d at 671 (internal quotation marks omitted). Applying the categorical approach, it is clear from looking only at Mayokok’s 2003 conviction and its statutory definition that any conduct violating section 617.247, subdivision 4, necessarily relates to the “possession ... of child pornography” under federal law. See United States v. Bennett, 823 F.3d 1316, 1325 (10th Cir. 2016).

The district court thus correctly applied the' statutory mandatory minimum sentence.

IV.

Accordingly, we affirm the application of the 15-year mandatory minimum sentence under 18 U.S.C. § 2252(b)(1), but we vacate Mayokok’s sentence and remand for resentencing without the USSG § 2G2.2(b)(3)(B) enhancement.

      . For this reason, much of the discussion from cases like Mathis v. United States, - U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), is inapposite to § 2252. The 15-year mandatory minimum provided by the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), is imposed when an individual violates § 922(g) "and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony.” A "violent felony” is further defined as, inter alia, “any crime ... that ... is burglary.” Id. § 924(e)(2)(B)(ii). Given Congress’s use of the concrete terms like "for a violent felony” and “is,” the Court’s specification that "[a] crime counts as ‘burglary’ under the Act if its elements are the same as, or narrower than, those of the generic offense” is less than surprising. Mathis, 136 S.Ct. at 2248. Here, by contrast, Congress used the modifier "relating to,” and “[w]e must assume” that it did so "for a purpose.” Sonnenberg, 556 F.3d at 671 (alteration in original) (internal quotation marks omitted). Given the Court’s broad interpretation of this phrase in other contexts, see, e.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), the Congressional purpose was to subject a wider range of prior convictions to the § 2252(b)(1) enhancement.


author: GRUENDER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Dusty A. PEOPLES, Defendant-Appellant
    No. 16-2044
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 10, 2017
    Filed: April 24, 2017

      Daniel P. Goldberg, Research and Writing Specialist, Office of the Fed. Public Defender, Kansas City, MO, argued (Laine Cardarella, Fed. Public Defender, Carie Allen, Asst. Fed. Public Defender, on the brief), for appellant.
    Jeffrey Q. McCarther, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
    Before SMITH, GRUENDER, and BENTON, Circuit Judges.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

   GRUENDER, Circuit Judge.

Dusty A. Peoples pleaded guilty to being a felon in possession of a firearm, conditioned on his right to appeal the denial of his motion to suppress evidence obtained from the search of a motel room where he was staying. Because the search warrant was based on evidence discovered by law enforcement officers while assisting motel management in lawfully evicting Peoples, we affirm.

On March 26, 2015, Kansas City Police Department (“KCPD”) Officer Bobbi King was working undercover at the Crown Lodge, a motel on the edge of town that has suffered from a rash of criminal activity in recent years. On that' particular morning, Officer King spotted a silver Toyota Camry in the motel parking lot that had been reported stolen. Accordingly, she proceeded to conduct surveillance on the vehicle. Officer King eventually observed two individuals, a male and a female, come out of Room 114 and approach the Camry. The woman threw a bag into the car, had a conversation with the man across the vehicle, and then drove out of the parking lot. Officer King followed the Camry to Independence, Missouri, where she arrested the female suspect — later identified as Melissa Tully — for possession of a stolen automobile. After the arrest, police found ammunition and an empty gun holster inside the vehicle, and Tully informed officers that a gentleman by the name of “Dusty” had spent the night with her in Room 114.

Meanwhile, Officer Deryck Galloway was dispatched to the Crown Lodge to advise management of the criminal activity on premises and to determine the identity of the male from Room 114. After arriving at the motel, Officer Galloway informed the clerk on duty that a stolen car had been observed leaving the Crown Lodge parking lot and that, while one person had been arrested, there was still a young man associated with the vehicle inside Room 114. In response, the clerk handed Officer Galloway a key to Room 114 so that he could evict the occupants. Either immediately before or after this conversation, Officer Galloway learned that police had recovered ammunition and an empty holster from the stolen vehicle and that the male suspect in Room 114 was named Dusty.

Officer Galloway then went to Room 114 accompanied by other officers, knocked on the door several times, and announced that he was with the police. Receiving no response, he used the key to enter the room and found Peoples lying on the bed. He also noticed a loaded handgun magazine on the floor next to the bed and what appeared to be narcotics on the night stand. Peoples was then taken into custody. Based on the evidence observed in plain view during the eviction, police obtained a search warrant for the room, where they discovered and seized a Glock 42 pistol along with an array of stolen electronics. Peoples was subsequently indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Peoples moved to suppress all evidence obtained as a result of the initial police entry into the motel room, which he claimed was an unlawful warrantless search that tainted the subsequent search warrant as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). After conducting an evidentiary hearing, the magistrate judge recommended denying the motion, finding no Fourth Amendment violation because a valid eviction terminates a hotel guest’s reasonable expectation of privacy in the room. Here, “the motel management was justified in evicting the occupants of Room 114 ... [because] Missouri law allows a hotel to eject a person when the hotel operator reasonably believes that the person is using the premises for an unlawful purpose.” See Mo. Rev. Stat. § 315.075(3). The district court adopted this analysis in full. Peoples then entered into a plea agreement with the Government, in which he reserved the right to appeal the denial of his motion to suppress, and was sentenced to 46 months’ imprisonment. He timely appeals, arguing that the Fourth Amendment compels us to reverse the denial of his motion to suppress.

“In considering [the] denial of a motion to suppress evidence, we review the district court’s conclusions of law de novo and its factual findings for clear error.” United States v. Molsbarger, 551 F.3d 809, 811 (8th Cir. 2009) (internal quotation marks and citation omitted). The parties agree that the Fourth Amendment’s “protection against unreasonable searches and seizures extends to a person’s privacy in temporary dwelling places such as hotel or motel rooms.” United States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997). However, “once a guest has been justifiably expelled, the guest is without standing to contest an officer’s entry into his hotel room on Fourth Amendment grounds.” Young v. Harrison, 284 F.3d 863, 867 (8th Cir. 2002). As we explained in United States v. Rambo, this is true because, upon eviction, “the rental period ... terminated ... [and] control over the hotel room revert[s] to management.” 789 F.2d 1289, 1295-96 (8th Cir. 1986). Rambo and subsequent cases make clear that the justification for such evictions may come from state statutes authorizing the removal of guests under certain circumstances. See, e.g., id. at 1294 (holding that Minnesota’s undesirable guest statute justified officers’ entry into a hotel room); United States v. Bohmont, 413 Fed.Appx. 946, 950-51 (8th Cir. 2011) (unpublished) (per curiam) (reaching same conclusion based on Mo. Rev. Stat. § 315.075). Thus, it is significant that, under Missouri law, “[a]n owner or operator of a hotel may eject a person from the hotel and notify the appropriate local law enforcement authorities [if] ... [he or she] reasonably believes that the individual is using the premises for an unlawful purpose.” Mo. Rev. Stat. § 315.075(3).

Peoples effectively advances two arguments in favor of suppression. First, he suggests that the KCPD attempted to circumvent the Fourth Amendment by acting through a private citizen to conduct a “warrantless search” of Room 114. Tying this doctrine to the lodging context, Peoples invokes Stoner v. California, in which the Supreme Court held that hotel clerks cannot consent to the search of a guest’s room. 376 U.S. 483, 489-90, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). While this is undoubtedly true, the record does not support Peoples’s efforts to frame the KCPD’s initial entry into Room 114 as a search. Rather, the magistrate judge determined that the motel clerk handed Officer Galloway a key for the purpose of effecting an eviction, not to conduct a search. Peoples does not contest this finding, and in fact, he concedes that “the motel management provided Officer Galloway a key to Room 114 to evict the occupants inside the room.” Thus, this is a very different situation from the invalidated search in Stoner, which occurred after a hotel clerk granted police access to a room rented by a robbery suspect, who was absent at the time, for the express purpose of conducting a search. See id. at 484-86, 84 S.Ct. 889. As such, Peoples’s first argument fails.

Second, Peoplps contends that, even if Stoner does not require reversal, the initial police entry into Room 114 was unlawful because his eviction was neither “justified” nor “proper” under Missouri law. See Molsbarger, 551 F.3d at 811 (“Justifiable eviction terminates a hotel occupant’s reasonable expectation of privacy in the room.” (emphasis added) (citations omitted)); Young, 284 F.3d at 869 (“[W]hen a hotel guest is properly evicted he loses the Fourth Amendment’s protection against warrantless entry.” (emphasis added)). Specifically, Peoples argues that section 315.075 cannot be read to authorize evictions of guests that result from police reports of illicit conduct to hotel management. The genesis of such evictions, he suggests, must come from innkeepers independently.

We acknowledge the potential for abuse when police provide the impetus for evictions under section 315.075. For example, it is possible that an officer might provide motel management with misleading information about a guest to cause an eviction as an end-around to the warrant process. However, just as we cannot blindly defer to police reports of suspected criminal activity, neither can we interpret section 315.075 to require innkeepers to ignore police warnings of illicit conduct on hotel premises. Instead, we must look to the specific facts behind police-initiated evictions.

Peoples does not offer, and the record does not betray, any evidence of bad faith on the part of the KCPD. In fact, Officer Galloway did not so much as suggest that the clerk should evict Peoples. Rather, the record demonstrates that, in giving the key to Officer Galloway, the clerk wanted the occupants of Room 114 removed. Further, this desire was justified under Missouri law because the clerk had a reasonable belief that the occupants of Room 114 were using motel premises for an unlawful purpose, given Officer Galloway’s report that they had kept a stolen vehicle in the Crown Lodge parking lot and that Peoples’s associate had been arrested for her role in this offense.

In a similar vein, Peoples claims that “emergency or exigent circumstances” are required for the “warrantless search” of motel rooms under section 315.075 and similar state statutes. As an initial matter, it bears repeating that the initial entry into the motel room was not a search but an eviction. Moreover, just because we have held that “[disruptive, unauthorized conduct in a hotel room invites intervention from management and termination of the rental agreement,” Molsbarger, 551 F.3d at 811, it does not logically follow that there are not other circumstances in which the control over a room reverts to hotel management. In Missouri, section 315.075 expressly provides for evictions based on a reasonable belief of illicit activity. The statute does not require emergency or exigent circumstances for such an eviction, and we decline to impose this condition where the state legislature chose not to do so. As such, we find that Officer Galloway’s entry into Room 114 was for the lawful purpose of effecting Peoples’s eviction and that the evidence observed during this initial entry was a valid basis for the subsequent search warrant, which Peoples does not otherwise challenge.

Accordingly, the district court did not err in denying Peoples’s motion to suppress, and we affirm his conviction.

      . The Honorable Brian C. Wimes, United States District Judge for the Western District' of Missouri, adopting the report and recommendations of the Honorable Sarah W. Hays, Chief Magistrate Judge for the Western District of Missouri.

      . As we have often noted, a party’s failure to raise a contention in its appellate brief is deemed an abandonment of that issue. See, e.g., United States v. Aldridge, 561 F.3d 759, 765 (8th Cir. 2009) (citing Fed. R. App. P. 28(a)(6)). This principle applies even more forcefully when a party makes a concession before this court. See United States v. DePuew, 889 F.2d 791, 794 (8th Cir. 1989).