Lee v. Kelley

• Decision Date: 20 April 2017
• Docket Number: No. 17-1840,17-1840
• Citation: 854 F.3d 544
• Parties: Ledell LEE, Plaintiff–Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction, Defendant–Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

854 F.3d 544

Ledell LEE, Plaintiff–Appellant

v.Wendy KELLEY, Director, Arkansas Department of Correction, Defendant–Appellee

No. 17-1840

United States Court of Appeals, Eighth Circuit.

Submitted: April 20, 2017

Filed: April 20, 2017

Ledell Lee, Pro se.

Lee Deken Short, Short Law Firm, North Little Rock, AR, Cassandra Stubbs, American Civil Liberties Union, Capital Punishment Project, Durham, NC, for Plaintiff–Appellant.

Nicholas Jacob Bronni, Valerie G. Fortner, Kent G. Holt, Ashley Argo Priest, Assistant Attorneys General, Christian Harris, Darnisa E. Johnson, Lee P. Rudofsky, Attorney General's Office, Little Rock, AR, for Defendant–Appellee.

Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

PER CURIAM.

About five hours before Ledell Lee's scheduled execution, two appeals were brought to this court. In the first, the district court determined that, under Gonzalez v. Crosby , 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), it lacked jurisdiction on the ground that Lee's motion for relief from judgment under Federal Rule of Civil Procedure 60(b) was, in substance, a successive petition for habeas corpus under 28 U.S.C. § 2254. The district court concluded that, although Lee's motion was styled as one to reopen judgment under Rule 60(b), Lee was actually seeking to litigate new claims under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Wiggins v. Smith , 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). The court transferred the matter to our court. See Burton v. Stewart , 549 U.S. 147, 153, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007). However, Lee voluntarily dismissed the matter before any determination could be made. No. 17-1838.

In this appeal, Lee challenges the district court's alleged denial¹ of his motion requesting funds under 18 U.S.C. § 3599(f) for "ancillary services to assist in the preparation of clemency and potential additional litigation." Lee now moves for a stay of execution. We deny his motion for stay.

"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) (citation omitted) (internal quotation marks omitted), quoting Hill v. McDonough , 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). To receive a stay, Lee "must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits." Id.

To receive a stay of execution, it is not enough that Lee show a significant possibility of success of the merits of some claim. Rather, Lee must show a significant possibility that he will succeed on the merits of a claim that would deprive Arkansas of the authority to execute him. See Durr v. Cordray , 602 F.3d 731, 736-37 (6th Cir. 2010).

Lee has not made that showing. Even if he succeeded on his § 3599(f) claim, Arkansas would still have the authority to execute him. Lee argues that the appointment of funds could lead to a chain of events that might include Governor Hutchinson approving clemency, the state Parole Board reconsidering its previous recommendation of denial of clemency, or later habeas proceedings. But these potential down-the-road effects do not give this court the authority to issue a stay.

The motion for stay is denied.

KELLY, Circuit Judge, concurring.

The district court transferred this matter to this court citing 28 U.S.C. § 2244(b)(3)(A), the statutory provision that says an applicant must receive permission from the court of appeals before filing a successive habeas petition. Thus, I construe Lee's most recent filing as part and parcel of his Rule 60(b) motion seeking, among other things, an opportunity to pursue an Atkins claim—a motion the district court ruled was, instead, a successive petition. I would grant the appeal from the district court's denial of funds Lee has requested to investigate his Atkins claim, because in my view, Lee's failure to present an Atkins claim in his prior habeas proceedings does not bar him from pursuing the Atkins claim challenging his imminent execution. See Atkins v. Virginia , 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that executing an intellectually disabled² person is unconstitutional). Because this court has recently held otherwise, I reluctantly must concur in the result, but I write separately to express my concerns.

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 law is clear that § 2244's ban on successive petitions does not apply to a petitioner's claim that his scheduled execution would violate the Eighth Amendment because he is incompetent. Stewart v. Martinez-Villareal , 523 U.S. 637, 645–46, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) ; see also Ford v. Wainwright , 477 U.S. 399, 409–10, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (holding execution of incompetent inmates is unconstitutional). The Supreme Court explained that a petitioner's prior habeas petition cannot bar such a claim because it cannot be adjudicated until the state obtains an execution warrant; it is only at that time that the execution becomes "imminent" and the petitioner's "competency to be executed" can be determined. Martinez-Villareal , 523 U.S. at 644–45, 118 S.Ct. 1618. This is the case even where the petitioner raises an incompetency claim for the first time after the state has obtained an execution warrant, and after a prior habeas application has been denied. Panetti v. Quarterman , 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 ). In Ford , the Supreme Court explained the rationale behind the prohibition on the execution of the incompetent, noting, inter alia , the questionable "retributive value of executing a person who has no comprehension of why" he is being executed. Ford , 477 U.S. at 409, 106 S.Ct. 2595. The rationale for prohibiting the execution of the intellectually disabled is striking similar. 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: death. Atkins , 536 U.S. 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) ; accordBrumfield 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)).

In this case, no court has had the opportunity to determine whether Lee was intellectually disabled at any time during the criminal proceedings, including at the time of the offense. This court has perceived a determinative distinction between a claim of incompetence under Ford and a claim of intellectual disability under Atkins because, in its view, incompetence can change over time while intellectual disability cannot. See Davis v. Kelley , No. 04-2192. True, a diagnosis of intellectual disability is not as susceptible to fluctuation as a diagnosis of mental illness amounting to incompetence. But intellectual disability is by no means static in every case. The DSM-5 explains,

Although intellectual disability is generally nonprogressive, in certain genetic disorders (e.g., Rett syndrome

) there are periods of worsening, followed by stabilization, and in others (e.g., Sanfilippo syndrome ) progressive worsening of intellectual function. After early childhood, the disorder is generally lifelong, although severity levels may change over time. The course may be influenced by underlying medical or genetic conditions and co-occurring conditions (e.g., hearing or visual impairments, epilepsy ). Early and ongoing interventions may improve adaptive functioning throughout childhood and adulthood. In some cases, these result in significant improvement of intellectual functioning, such that the diagnosis of intellectual disability is no longer appropriate.

Diagnostic and Statistical Manual of Mental Disorders 38–39 (DSM-5) (5th ed. 2013); see also James C. Harris, Intellectual Disability: Understanding Its Development, Causes, Classification, Evaluation, and Treatment (2005) ("[T]he intellectually disabled person's level of functioning is not static and ... an individual's adaptive behavior may be improved through habilitation."); Simon Whitaker, The Stability of IQ in People With Low Intellectual Ability: An Analysis of the Literature, 46 Intellectual and Developmental Disabilities 120, 123 (2008) (fourteen percent of study subjects with low IQs saw changes of ten or more points on IQ evaluations performed at different times). In short, intellectual disability may ebb and flow, depending on a variety of factors, including the underlying cause of disability, the extent of intervention, and the presence of co-occurring conditions. Of particular relevance to Lee's claim, scientific studies indicate that in cases of intellectual disability arising from fetal alcohol syndrome, deficits...