THIS IS A CAPITAL CASE – EXECUTION SCHEDULED APRIL 20, 2017 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT LEDELL LEE APPELLANT No. 17-1840 WENDY KELLEY, Director, Arkansas Department of Correction APPELLEE RESPONSE TO MOTION FOR STAY OF EXECUTION Comes now the respondent, Wendy Kelley, Director, Arkansas Department of Correction, by and through counsel, Leslie Rutledge, Attorney General, and Valerie Glover Fortner, Assistant Attorney General, and for her response states: I. History and Current Request for Relief Ledell Lee is an Arkansas prisoner who is under a sentence of death that was imposed in 1995 for the capital murder of Debra Reese in 1993. Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997), cert. denied 522 U.S. 1002 (1997). The details of the crime are not repeated here. Id. at 696-698, 942 S.W.2d at 232-33. In the ensuing years, Lee’s conviction and sentence have been reviewed by the Arkansas Supreme Court on direct review, by the convicting court and again by the Arkansas Supreme Court on state collateral review, by this Court in federal habeas corpus proceedings, by the Eighth Circuit Court of Appeals on direct review of those Appellate Case: 17-1840 Page: 1 Date Filed: 04/20/2017 Entry ID: 4527000 proceedings, and by petition for writ of certiorari in the Supreme Court in the same. Lee filed an application for executive clemency arguing before the Arkansas Parole Board that both his trial counsel and the trial judge had been conflicted – claims that had been raised and rejected by both state and federal courts. A clemency hearing was held on March 24, 2017, and the Parole Board unanimously recommended that Lee’s application be denied. On April 3, 2017, Lee petitioned the Arkansas Supreme Court to recall its mandates in both his direct appeal and his second Rule 37 appeal and asked that it stay Lee’s execution. The Arkansas Supreme Court denied the petitions on April 6, 2017. Lee is scheduled to be put to death by lethal injection on April 20, 2017. In one of a series of eleventh-hour efforts to stay the execution of his judgment in multiple courts, Lee has invoked Rule 60(b) of the Federal Rules of Civil Procedure and has asked this Court to grant relief from the judgment and permit him to pursue a claim that his “federal habeas counsel’s complicity in Mr. Lee’s breakdown in counsel prevent Mr. Lee from effectively presenting to this Court his constitutional claims under Atkins v. Virginia, 536 U.S. 304 (2002), an Wiggins v. Smith, 539 U.S. 510 (2003), as well as his actual innocence claim . . . ” that seeks current re-testing of evidence available at trial (Doc. 167 at 1). In 2 Appellate Case: 17-1840 Page: 2 Date Filed: 04/20/2017 Entry ID: 4527000 service of that request, he also seeks a stay of his execution. The motion for stay should be denied. II. Discussion A stay of execution is an equitable remedy that must take into account the movant’s delay in seeking a stay, and also whether he or she has demonstrated a strong likelihood of success on the merits. See Hill v. McDonough, 547 U.S. 573 (2006). In Hill, the United States Supreme Court held that a pending lawsuit does not entitle a condemned murderer to a stay of execution as a matter of course, and that the State and crime victims have a profound interest in the timely implementation of a valid and final death sentence. Id. at 583-84. The courts “must also apply ‘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.’” Id. (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004)); cf. Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (identifying the danger in capital litigation that “petitioners might deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of death.”). Applicants seeking a stay must meet all the elements of a stay, including showing a significant possibility of success on the merits. Id. at 584. In accordance with these standards, Lee’s motion fails. 3 Appellate Case: 17-1840 Page: 3 Date Filed: 04/20/2017 Entry ID: 4527000 Lee’s federal habeas litigation is over. Nevertheless, he asserts three claims of constitutional error, contending that they entitle him to a stay of execution. Specifically, he contends his execution should be stayed on the mere basis that he has, of late, conceived of another way that he believes his counsel (including, for the first time, his federal habeas attorneys) should have litigated his case differently. First, he posits that his Rule 60(b) motion presents a significant possibility of success on the merits as shown by the “truly extraordinary circumstances [that] infected his federal habeas proceedings, preventing the presentation of his constitutional and actual innocence claims.” (Doc. No. 167 at 2). His newly devised claims are unremarkable, and, in any event he has the cart before the horse. He must first demonstrate that his Rule 60 motion warrants the extraordinary affront to the finality of his long settled, oft-reviewed judgments. For reasons argued in response to the motion for relief from judgment, he has not done so. In fact, relief is jurisdictionally barred by the AEDPA. It, thus, does not generate extraordinary circumstances for belated consideration of claims, whether new or revised, that were not made before the judgment became final. And, in any event, Lee was not diligent in bringing the claims or the Rule 60 motion. While Lee contends that he “has not unreasonably delayed” bringing his Rule 60 motion, as he acknowledges, (Doc. No. 167 at 3), his current counsel was appointed to represent him in August 2016, and yet unreasonably waited until two 4 Appellate Case: 17-1840 Page: 4 Date Filed: 04/20/2017 Entry ID: 4527000 days before Lee’s scheduled execution to bring the motion. The consideration of diligence does not weigh in Lee’s favor. The extraordinary measure of staying the state court judgment is unwarranted, and the motion should be denied. Further, he argues that the harm of giving effect to the state judgment without hearing his newly devised claims is somehow unfair because he has serious questions about the constitutionality of the method of his scheduled execution. He has litigated the latter unsuccessfully; his challenges do not warrant a stay. Further, Lee’s judgments, both in habeas and state court, are final, and his Rule 60 motion demonstrates no grave injustice in allowing long final and lawful judgments to be given effect. Arkansas has a significant interest in enforcing its criminal judgments in a timely fashion. See Nelson v. Campbell, 541 F.3d 637, 644 (2004). “Only with an assurance of real finality can the State execute its moral judgment in a case. Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out.” Calderon v. Thompson, 523 U.S. 538, 556-57 (1998) (citing Payne v. Tennessee, 501 U.S. 808 (1991)). “When lengthy federal proceedings have run their course and a mandate denying relief has issued, finality acquires an added moral dimension.” Calderon, 523 U.S. at 556. To disrupt it by issuing a stay of execution, without the likelihood that the Rule 60 motion should meet with success, would be to impose severe injury to the “powerful and 5 Appellate Case: 17-1840 Page: 5 Date Filed: 04/20/2017 Entry ID: 4527000 legitimate interest in punishing the guilty, an interest shared by the State and the victims of crime alike.” Id. (quoting Herrera v. Collins, 506 U.S. 390, 421 (1993) (O’Connor, J., concurring)). The balance of harms and the public interest weigh against a stay of execution. WHEREFORE, Respondent prays this Court deny Lee’s motion for stay of execution be denied. Respectfully submitted, LESLIE RUTLEDGE Attorney General BY: /s/VALERIE GLOVER FORTNER VALERIE GLOVER FORTNER Arkansas Bar # 2002108 Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 7220l (501) 682-2007 [phone] (50l) 682-2083 [fax] valerie.fortner@arkansasag.gov ATTORNEYS FOR RESPONDENT CERTIFICATE OF SERVICE I, Valerie Glover Fortner, hereby certify that on this 20th day of April, 2017, the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system, and Petitioner’s counsel was served with a copy of this motion through the electronic filing system. By: /s/ Valerie Glover Fortner Valerie Glover Fortner 6 Appellate Case: 17-1840 Page: 6 Date Filed: 04/20/2017 Entry ID: 4527000