Clemency Challenge Must be Under Habeas
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The plaintiff, scheduled for execution, complained that the Governor who passed on his clemency application was the Attorney General at the time of prior proceedings in his case. Since his underlying claim in the clemency application concerned error at trial, the relief he sought (stay of execution until his clemency petition could be considered by someone else) was really habeas relief that could not be obtained under 1983, and was also a successive habeas motion barred by statute since the Supreme Court had rejected his claims. See: Buchanan v. Gilmore, 139 F.3d 982 (4th Cir. 1998).