And, "the substantive discretion of the president in the exercise of his clemency power is all but absolute."

The district court is to examine the state's proportionality review only to determine whether the imposition of death on the petitioner is patently unjust or "shocks the conscience; the court is not to second-guess the state court's comparison of other cases in which the death penalty was imposed." Id

Although some courts have suggested that reasonable disagreements should not prevent imposition of the death penalty,

Because the group of "Witherspoon-excludables" includes only those who cannot and will not conscientiously obey the law with respect to one of the issues in a capital case, "death qualification" hardly can be said to create an "appearance of unfairness."

This guarantee is applicable to the states through the due process clause of the fourteenth amendment.

Thus over three of the six-plus years were spent at trial, on appeal in the Florida state courts, before the Governor of Florida on a petition for executive clemency, and before the trial court on a motion to vacate, set aside, or correct a sentence.

—the United States Court of Appeals for the Fifth Circuit concluded that the evidence supporting defendant's claim that death-qualified juries were "prosecution-prone" was "far from conclusive."

Moreover, virtually all lower courts that have considered due process challenges to capital clemency procedures have analyzed the interest being asserted as one in "liberty."

The majority's statement that federal courts "will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court," Majority Opinion, supra at 819

Some lower federal courts have not employed the cause and prejudice test and have relied ingtead on alternative grounds because they have feared reversal of their decisions based on the undefined standard.

[CITATION] Coleman v. Balkcom

[PDF] The California Supreme Court Survey: A Review of Decisions: July 1982 …