Dissenting and Granting a Temporary Stay of Execution:

I also agree with Judge Moore’s analysis of the federal process due in clemency proceedings. See Woodard v. Ohio Adult Parole Auth., 107 F.3d 1178 (6th Cir.1997), petition for cert. filed, 65 U.S.L.W. 3756 (May 6, 1997).

Id. at 1187. The reasoning by which due process places constraints on appeals “logically applies to further proceedings made available by the government, as well,” including clemency proceedings. Id. at 1186 The process due at a clemency proceeding, however, will necessarily be minimal because of its great distance from the trial and other post-conviction remedies. That federal right in any event may be based on Arizona’s holding that, in clemency hearings, “due process of law requires notice and opportunity to be heard, and there must be a hearing in a substantial sense .... in accordance with the cherished judicial tradition embodying the basic concepts of fair play.” McGee v. Arizona State Bd. of Pardons & Paroles, 92 Ariz. 317 , 376 P.2d 779, 781 (1962) (quotations and citations omitted). See State Bd. of Pardons & Paroles v. Superior Court, 12 Ariz.App. 77 , 467 P.2d 917, 920, 922 (1970) (Arizona Superior Court has power to review Board proceedings to determine due process in commutation hearing and may return matter to Board for further proceedings).

I also agree that an action under 42 U.S.C. § 1983 provides an appropriate vehicle for raising this type of due process claim. If ever a ease presented a significant likelihood of the type of due process violation cognizable in a clemency proceeding, however, this is one. There is no question but that Worat-zeek’s former counsel orchestrated the presentation to the clemency board urging denial of clemency.

Under these circumstances, we should grant a temporary restraining order staying the execution and remanding to the district court to determine whether the conflict of interest undermined the fairness of the clemency proceedings.