No. 17-______

IN THE

Supreme Court of the United States
_________

LEDELL LEE,
Petitioner,
v.
STATE OF ARKANSAS,
Respondent.
_________
EMERGENCY CAPITAL CASE
EXECUTION SCHEDULED FOR APRIL 20, 2017 at 7:00pm CST
_________
APPLICATION FOR STAY OF EXECUTION
_________
*CASSANDRA STUBBS
ACLU CAPITAL PUNISHMENT PROJECT
201 W. Main St. Suite 402
Durham, NC 27701
(919) 688-4605
cstubbs@aclu.org
Counsel for Petitioner
*Counsel of Record

LEE SHORT
SHORT LAW FIRM
425 W. Broadway St. A
North Little Rock, AR 72114
(501) 766-2207
leedshort@gmail.com
NINA MORRISON
THE INNOCENCE PROJECT
40 Worth Street, Ste. 701
New York, NY 10013
(212) 364-5357
nmorrison@innocenceproject.org

 TO:

THE HONORABLE SAMUEL ALITO
ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT
Petitioner Ledell Lee, through undersigned counsel, hereby respectfully

submits this application for a stay of execution, scheduled for tonight, April 20,
2017 at 7:00 p.m. CST, and hereby moves the Circuit Justice for the Eighth
Circuit, Associate Justice Samuel Alito, for a stay of his execution pending
disposition of his forthcoming petition for writ of certiorari.
INTRODUCTION
After Petitioner fell in a lacuna in the Arkansas postconviction system, we
now know that his contemporaneous school records and neuropsychological testing
provide substantial reason to believe he is intellectually disabled. Petitioner, the
State, and the Supreme Court of Arkansas all agree that Arkansas law provides
Petitioner with no mechanism to raise an Atkins claim post-trial, even where the
failure to investigate and raise intellectual disability was of no fault of Petitioner
and attributable to grossly deficient counsel. Although Petitioner was functionally
deprived of any opportunity to prove (or even investigate) his intellectual disability,
the State insists that his execution should proceed with haste—haste taken only in
the name of convenience—so that there will never be an opportunity to determine if
the State is, in fact, undertaking the cruel and unusual execution of an
intellectually disabled person.
This Court has repeatedly admonished that states may not administer Atkins
in a way that “creates an unacceptable risk that persons with intellectual disability
will be executed, and thus is unconstitutional.” Hall v. Florida, 134 S. Ct. 1986,
1

 1990 (2014); see also Moore v. Texas, 137 S. Ct. 1039, 1053 (2017). But that is
exactly what Arkansas’ scheme does. Under Arkansas law, an intellectually
disabled person who fails to raise an Atkins claim at trial or on post-conviction
through no fault of his own—and simply because he was unlucky enough to be
appointed constitutionally deficient counsel—is forever barred from raising his
intellectual disability and will be executed even though it is cruel and unusual.
This Court should issue a stay of Petitioner’s imminent execution pending
consideration of certiorari on the fundamental question presented: Does Arkansas’
procedural bar “create an unacceptable risk that [a person] with intellectual
disability will be executed” where, as here, there is substantial reason to believe
that the Petitioner is intellectually disabled?
Petitioner’s school records and neuropsychological testing—none of which
have ever been subject to review by a state or federal judge—demonstrate
hallmarks of intellectual disability. He was held back in school as early as
kindergarten. After consistently receiving poor grades, he was placed in special
education. Despite those additional supports, he plateaued at a fifth grade to
seventh grade academic level, which is typical of persons with intellectual
disability. “Even as a special education student he could not do some of the most
basic tasks” that other special education students could perform. By age 15 or 16,
he could not do math that most elementary school students have mastered.
Petitioner dropped out of school due to an inability to understand his school work.

2

 A battery of 47 tests and observations has revealed that Petitioner has
significantly subaverage intellectual functioning in virtually every area.
Accounting for margin of error, Petitioner’s IQ may be as low as a 74. He can
perform math at a fifth-grade level. His nonverbal intellectual abilities fall in the
fifth percentile range and he has serious problems processing information, deficits
in reasoning, and a “remarkable failure to learn and problem solve.” See Atkins v.
Virginia, 536 U.S. 304, 311-12 (2002) (explaining that the very basis for Atkins is
that intellectually disabled persons “have diminished capacities to understand and
process information, to communicate, to abstract from mistakes and learn from
experience, to engage in logical reasoning, to control impulses, and to understand
the reasons of others”). His visual special capacities fall in the 0.01 percentile and
he exhibits a “striking failure of executive functions to organize his behavior.” His
recognition capability ranks, at best, in the 0.1 percentile and, at worst, in the 0.01
percentile.
Petitioner also has several of the major etiological factors that are not
necessary to—but are highly indicative of—a diagnosis of intellectual disability.
The right hemisphere and frontal lobe (the part of the brain that controls cognitive
functions and voluntary actions) are dysfunctional. Petitioner’s mother drank
continuously throughout her pregnancy and assessments corroborate that
Petitioner suffered from fetal alcohol syndrome, including the physical and
behavioral manifestations of the condition, which include brain damage and trouble
with reasoning, attention, and memory.

3

 Because Petitioner found himself in a disgraceful void of the criminal justice
system, none of this evidence was ever presented to any court and Petitioner was
never provided a hearing at which he could prove his intellectual disability.
Petitioner’s first postconviction counsel, who represented Petitioner on his first
state and federal habeas proceedings, was found to be incompetent and removed
because he was literally drunk during proceedings. Petitioner’s subsequent counsel
failed to even amend his drunken counsel’s claims in state or federal court, let alone
conduct any investigation into Petitioner’s intellectual disability (or any other
claims). Indeed, subsequent counsel’s presentation was even more cursory than
that of Petitioner’s initial, incompetent attorney.
The State does not meaningfully contest the evidence indicating Petitioner’s
intellectual disability, but has, in passing, resorted to stereotype about what
intellectually disabled people are able to do, as well as counsel for the State’s nonclinical opinion that Petitioner is not intellectually disabled. This Court has
consistently rebuked that approach. See Moore, 137 S. Ct. at 1050-52 (reiterating
that intellectual disability must be assessed based on clinical standards, that the
clinical inquiry focuses on presence of adaptive deficits and not the absence of
strengths, and that “the medical profession has endeavored to counter lay
stereotypes of the intellectually disabled”).
The issue presented by this case—whether a state may decline to offer any
mechanism for proving intellectual disability where the failure to raise it was of no
fault of the petitioner and due to incompetent counsel—is of fundamental

4

 importance and satisfies this Court’s criteria for certiorari. Petitioner urges this
Court to issue a stay of his imminent execution pending certiorari to prevent the
execution of an intellectually disabled person.
FACTS AND PRIOR PROCEEDINGS
Abandonment and Breakdown in Counsel
The lawyers appointed to protect Petitioner’s life have failed him to the point
of gross incompetence, including one attorney who was intoxicated, one who was
mentally ill, and several who abandoned Petitioner’s claim under Atkins even after
having identified it and asking for leave to file an Atkins claim. This occurred
repeatedly at every stage such that the Arkansas procedures never afforded
Petitioner, a person with Fetal Alcohol Syndrome, neurodevelopmental difficulties,
and likely intellectual disability an opportunity to pursue his Atkins claim.
To begin, in Petitioner’s petition for post-conviction relief in the Arkansas
courts, his attorney Craig Lambert behaved in a manner later found to be
“extraordinary” and “cause for concern.” Lee v. Norris, 354 F.3d 846, 848 (8th Cir.
2004). Notably, the state trial judge stated that Mr. Lambert was “not competent to
try a case” and that the judge told Petitioner’s counsel he “didn't know you'd just
gotten out of rehab. If I had known that, I would not have put you on this case. I
would not have done it.” Counsel for the state also stated the following on the
record during the hearing:
Your Honor, I don't do this lightly, but with regard to [Petitioner's
counsel's] performance in Court today, I'm going to ask that the Court
require him to submit to a drug test. I don't think that he's, he's not,
he's just not with us. He's reintroduced the same items of evidence over
5

 and over again. He's asking incoherent questions. His speech is
slurred. He stumbled in the Court Room. As a friend of the Court, and
I think it's our obligation to this Court and to this Defendant that he
have competent counsel here today, and I don't-That's just my request
of the Court, Your Honor.
Id. at 848. The request for testing was denied, and Petitioner’s first state habeas
petition was denied. Id. Mr. Lambert represented Petitioner appeal of that denial,
did not raise the issue of his own conflict, and lost the appeal. Lee v. State, 38 S.W.
3d 334 (Ark. 2001).
Mr. Lambert continued on representing Petitioner, into his federal habeas
proceedings, later joined by Jennifer Horan. After the petition was filed, they later
filed a motion amend Petitioner’s federal habeas petition to include a claim of
mental retardation in light of Atkins v. Virginia on June 18, 2003. 1 This was a key
point in the procedural history. Astonishingly, this was the first, and regrettably
the last time any attorney pleaded Atkins as a possible bar to Petitioner’s execution.

Ledell Lee’s Fetal Alcohol Syndrome is readily noticeable on looking at him. ECF 162
at 2. This characteristic, Petitioner’s evident low intelligence, or possibly his school records
would have tipped off counsel to the Atkins issue. At Petitioner’s trial, counsel introduced a
portion of his school records which reveals some of his intellectual deficits. Defense counsel
introduced Petitioner’s cumulative school record report from Blytheville Public Schools, showing
grades and testing between 1972, when Petitioner was in 1st grade and 1981, when Petitioner
was in 8th grade. Motion for relief Under Fed. R. Civ. P. 60(b), ECF 166 at 20, School Records.
These records showed that Petitioner entered first grade as a seven year-old, suggesting he had
been held back in kindergarten. Id. They also referenced the fact that Petitioner was
transferred from “Harrison LC” in 1972. In the wake of desegregation litigation, Harrison High
School was changed in 1970 to become the “Harrison Learning Center,” a school for special
education. . Petitioner received poor grades in school, a mix of “below average” and “average” in
his first years, despite his advanced age for the year. ECF 166 at 20. The records show that he
repeated seventh grade, and that he scored extremely low on standardized testing.
1

6

 When the district court learned of Mr. Lambert’s intoxication in his state
post-conviction proceedings, it stayed the proceedings on this federal habeas
petition for the Arkansas trial court to “take appropriate action.”
After the state filed an interlocutory appeal, the Eight Circuit affirmed,
noting that the circumstances of the case were “truly exceptional.” Lee v. Norris, 354
F.3d 846, 847 (8th Cir. 2004). The court noted that the claims raised in the federal
petition were exhausted, but the claim regarding the lack of competent
representation by Mr. Lambert during state habeas proceedings—not raised in the
federal habeas petition drafted by Mr. Lambert—was unexhausted. Id. at 849.
When Ms. Moran later sought to be relieved from the case, Mr. Lambert
objected, stressing that Petitioner had a pending claim of exemption for intellectual
disability, and that his case was extraordinarily complex, would require a massive
investigation. He asked the District Court to deny Ms. Horan’s withdrawal motion
because “The Federal Public Defender Office is the only entity in Arkansas with the
resources that are necessary to adequately represent Lee in these proceedingsespecially since the FPD has raised an Atkins claim and experts will be needed to
present it.” ECF No. 18. 2
Ms. Horan then opposed Mr. Lambert’s motion to oppose her withdraw by
disclosing that her close “out of work” personal relationship with Mr. Lambert
created an actual conflict with her continued representation of Petitioner. ECF No.
19. Her contemporaneous notes reflect that she also was concerned with the lack of

2

All ECF citations refer to Lee v. Kelley, No. 5:01-cv-00377-DPM (E.D. Ark.).
7

 available counsel in Arkansas who could competently investigate the case given
that the small number of qualified attorneys had conflicts. ECF No. 166 at 6.
The district court denied the motion to amend to include Atkins—without
prejudice to renew in view of this Eighth Circuit’s remand to state court. ECF No.
20. It also appointed new counsel for Petitioner on July 28, 2004, including out of
state attorneys Kent Gipson and William Odle with Deborah Sallings as local
counsel. ECF No. 27.
Meanwhile, on June 29, 2005, the Arkansas Supreme Court recalled the
mandate, ruling that Rule 37.5 requires qualified counsel and that Petitioner’s
representation by impaired counsel required new proceedings. The Arkansas Public
Defender appointed Arkansas attorneys Gerald Coleman and Danny Glover to
represent Petitioner in his new Rule 37.5 proceedings.
The level of representation by Mr. Coleman and Mr. Glover was grossly
incompetent, falling significantly short of the impaired performance of Petitioner’s
first conflicted counsel. ECF No. 94 at 12-13. They abandoned Petitioner, refusing
to return Petitioner’s phone calls, discuss witnesses or claims, and failing to provide
him with pleadings. Id. at 42-43. They moved for investigators, but never sought
any life history investigation of Mr. Lambert. They did no exploration of
Petitioner’s Atkins claim. Thus, Petitioner’s Atkins claim, identified previously, was
abandoned without reason. Mr Glover and Mr. Coleman also failed to investigate
related mental health issues, and relied exclusively on the claims presented by Mr.
Lambert. For these limited issues, second Rule 37.5 counsel actually presented less

8

 evidence. Inexplicably, they failed to raise the Atkins claim which Mr. Lambert and
Ms. Moran had identified.
In addition to abandoning Petitioner’s Atkins claim, second Rule 37.5 counsel
presented less than half a day’s worth of evidence at the reopened hearing—
compared to the intoxicated Mr. Lambert who had presented five days of
testimony—and did not use or present any of the evidence uncovered by their fact
investigator. Id. at 13; ECF No. 166 at 7 (Notes of Matilda Buchanan). Troublingly,
they failed to preserve the most compelling issue raised: the extramarital affair
between the trial judge Chris Piazza and the prosecuting attorney Melody LaRue.
ECF No. 94 at 13.
The conflict created by the extramarital affair also tainted every aspect of
Petitioner’s state post-conviction proceedings. Judge Piazza cast a long shadow over
this case. He personally intervened to prevent Petitioner from receiving
appointment of conflict free counsel on appeal. He then ruled on the substance of
his own motion to recuse, calling the motion that Petitioner wanted to raise for his
recusal “ridiculous.” Tp at 1602-03. He undertook these actions at a time when he
was married and having an extramarital affair with a prosecutor. As the notes of
the Federal Defenders established, ECF No. 166 at 7, FN 1 (notes of Federal
Defender); id. (notes of investigator Matilda Buchanan), this highly personal
conflict made it impossible for Petitioner to get good counsel to represent him in the
reopened Rule 37.5 litigation, because of the fear attorneys had of raising the issue
with Judge Piazza, but the result most troubling here was that it meant no capable

9

 attorney would be available to pursue Petitioner’s Atkins claim. Petitioner was
stuck with Mr. Coleman and Mr. Glover.
The Circuit Court denied Petitioner’s Rule 37 motion, and appealed to the
Arkansas Supreme Court, which affirmed the lower court. Lee v. State, 2009 Ark.
255, 308 S.W.3d 596 (2009).
On November 10, 2008, Gary Brotherton was appointed co-counsel for
Petitioner’s federal habeas petition. ECF No. 74. Mr. Brotherton and Mr. Gipson
thereafter operated as Petitioner’s federal habeas counsel for the remainder of his
federal habeas proceedings. They too abandoned the Atkins claim, which the
district court had indicated could be heard upon completion of the Arkansas postconviction process.
Without taking up this important claim, or conducting any life history
investigation, federal habeas counsel Mr. Gipson and Mr. Brotherton continued
representing Petitioner in a perfunctory manner that failed to get to the heart of
this death-penalty case—the mitigation and intellectual disability never previously
discovered and which could save their client’s life. Ultimately, after several
additional filings that were all denied, on May 24, 2016, Mr. Gipson and Mr.
Brotherton moved to withdraw as Petitioner’s counsel in this case, describing
themselves as “ill equipped” to fulfill Petitioner’s right to have counsel for executive
clemency and stay of execution litigation under 18 U.S.C. § 3599(e). ECF No. 148.
Remarkably, they did not obtain Petitioner’s consent for this motion, nor did they

10

 seek the agreement of counsel from the Federal Defender’s office, whose
substitution they sought. ECF No. 149.
The district court denied that motion on July 18, 2016, stating that
Petitioner’s long term lawyers “know the case better than any substitution lawyers
would,” and were “best suited to represent Petitioner is clemency and other
ancillary proceedings. ECF. No. 155.

The Court stressed that the even if local

counsel is necessary to pursue proceedings in State court, they should “still be doing
the legwork” because the “case is at a critical stage; and Lee needs his long-time
lawyers to see it through.” Id.
It was not until after the district court denied this motion to withdraw that
long-time counsel Mr. Brotherton explained why he was not up to the task of
preparing clemency or ancillary investigation.

In a subsequent motion for

substitution of counsel, Mr. Gipson sought the appointment of substitute counsel,
Lee Short, explaining that Mr. Brotherton had his Missouri law license suspended
by the Missouri Supreme Court due to his very serious mental health issues. ECF
No. 156. Mr. Brotherton informed the Missouri Supreme Court that he considered
himself a threat to his clients. ECF No. 166 at 9. That motion was granted on
August 16, 2016. ECF No. 157.
While Mr. Gipson remained nominally as counsel until his recent
substitution by Cassandra Stubbs, ECF No. 161, Mr. Gipson in effect abandoned
Petitioner and he has done none of the “legwork” necessary at this “critical stage.”
Mr. Short agreed to step in at the eleventh hour because of Mr. Brotherton’s

11

 conflict, at the Court’s request. See Lee v. Hutchinson, 4:17-CV-194 DPM (E.D. Ark.
April 5, 2017 Hearing) Transcript 356-57 (Court noting that Petitioner became
involved because “I roped you in, as I recall.”). Mr. Short was not prepared when
Governor Hutchinson set Petitioner’s execution date for February 27, 2017. Id at
358. Governor Hutchinson had previously set several cases for execution, all of
which were stayed, and Petitioner’s case had not been in the previous group.
As a result, despite Petitioner’s multiple rounds of post-conviction
proceedings, no court has ever considered whether he is intellectually disabled and
ineligible for the death penalty under Atkins v. Virginia.

REASONS FOR GRANTING A STAY OF EXECUTION
This Court should stay Petitioner’s execution because Petitioner’s petition for
certiorari raises “non-frivolous claims of constitutional error,” Barefoot v. Estelle,
463 U.S. 880, 888 (19830, and presents weighty constitutional issues for which
there is a reasonable probability that a writ of certiorari will issue and a fair
prospect that the Court will reverse the decision of the Arkansas Supreme Court.
I.

THE COURT SHOULD EXERCISE ITS DISCRETION TO STAY
PETITIONER’S EXECUTION PENDING REVIEW OF HIS PETITION
FOR CERTIORARI.
A stay of execution is appropriate if an applicant makes a four-part showing:

first, that there is a “reasonable probability” that four Justices of the Court will vote
to issue a writ of certiorari; second, that there is a “fair prospect” that a majority of
the Court will reverse the decision below; third, that irreparable harm will likely
result if the stay is not granted; and fourth, that the “balance [of] the equities”
12

 weighs in favor of a stay, based on the relative harms to the applicant and
respondent, as well as the interests of the public.

Barefoot, 463 U.S. at 895.

Petitioner satisfies the factors across the board.
A.

There Is A Reasonable Probability That This Court Will Grant
The Forthcoming Petition For A Writ of Certiorari And a “Fair
Prospect” That It Will Reverse The Arkansas Supreme Court’s
Decision.

At last four justices of this Court are likely to grant certiorari on the question
Petitioner raises in his petition for a writ of certiorari:

whether Arkansas’

procedural bar creates an unacceptable risk that an intellectually disabled prisoner
will be executed, in violation of this Court’s repeated pronouncements that such a
risk is unconstitutional. That is an issue of great importance that warrants review.
i.

Arkansas’ Failure To Provide A Procedural Mechanism For
Raising An Atkins Claim Post-Trial Where The Failure To Raise
It Previously Was Of No Fault Of Petitioner Squarely Conflicts
With This Court’s Precedent And Creates An Untenable Risk
That Intellectually Disabled Persons Will Be Executed.

In Atkins v. Virginia, 536 U.S. 304 (2002), this Court held that it is
unconstitutional for the state to execute a person who is intellectually disabled. See
also Hall, 134 S. Ct. at 1992 (there is “[n]o legitimate penological purpose is served
by executing a person with intellectual disability”). The Court has explained that
“because of their impairments,” intellectually disabled persons “by definition . . .
have diminished capacities to understand and process information, to communicate,
to abstract from mistakes and learn from experience, to engage in logical reasoning,
to control impulses, and to understand the reactions of others.” Atkins, 536 U.S. at
13

 318. These diminished capacities increase the risk that the death penalty will be
misapplied because defendants with intellectual disabilities are more likely to give
false confessions, are less able to assist their counsel and make a persuasive
showing in mitigation, and are typically poor witnesses whose demeanor is often
misinterpreted by juries.

Id. at 320-21.

Thus, “to impose the harshest of

punishments on an intellectually disabled person violates his or her inherent
dignity as a human being.” Hall, 134 S. Ct. at 1992.
Although this Court has left to the States the task of adopting an appropriate
standard for intellectual disability, Atkins, 536 U.S. at 317, it has made clear that
the states may not implement Atkins’ mandate in a manner that “den[ies] the basic
dignity the Constitution protects.” Hall, 134 S. Ct. at 2001. In particular, states
may not adopt a system for evaluating intellectual disability that “creates an
unacceptable risk that persons with intellectual disability will be executed, and
thus is unconstitutional.” Id. at 1990; see also Moore, 137 S. Ct. at 1053 (“‘If the
States were to have complete autonomy to define intellectual disability as they
wished,’ we have observed, ‘Atkins could become a nullity, and the Eighth
Amendment’s protection of human dignity would not become a reality.’”).
Arkansas’ present scheme—like the practices considered in Hall and Moore—
threatens to render Atkins a nullity in certain circumstances and—as here—creates
a grave risk that a person with intellectual disability will be executed.

Under

Arkansas law, an intellectually disabled person who fails to raise an Atkins claim at
trial or on post-conviction through no fault of his own—and simply because he was

14

 unlucky enough to be appointed constitutionally deficient counsel—is forever barred
from raising his intellectual disability and will be executed even though it amounts
to cruel and unusual punishment.
Under Arkansas law, upon the completion of postconviction, an individual
sentenced to death has two mechanisms for raising additional claims: A motion to
recall the mandate under Arkansas Rule of Criminal Procedure 37.5 or a petition
for a writ of coram nobis. As the State argued below and the Arkansas Supreme
Court confirmed, the Arkansas Supreme Court “has repeatedly and continuously
made clear that a mental-retardation/Atkins claim cannot justify a recall of the
mandate or be addressed on a writ of error coram nobis.” Lee v. Arkansas, No. CR96-553, Response To Motion To Recall Mandate In Connection With Petition For
Writ of Error Coram Nobis, at 4 (citing Coutler v. State, 365 Ark. 262, 267 (2006);
Engram v. State, 360 Ark. 140 (2004)). According to the State and the court below,
that procedural bar applies independent of whether the failure to timely raise
intellectual disability was of any fault of Petitioner and of whether Petitioner is, in
fact, intellectually disabled.
The record here exemplifies the degree to which a blanket procedural bar
against raising Atkins creates an untenable risk of executing an intellectually
disabled person. As described above, Petitioner’s contemporaneous school records
and neurological testing provide strong indication that Petitioner is intellectually
disabled.

Under Arkansas law, he has no mechanism to prove his intellectual

disability—indeed, he has no mechanism for obtaining even a hearing—even though

15

 the failure to raise it previously is attributable to the grossly deficient
representation he received from appointed counsel. As a result, Atkins is rendered
a nullity to Petitioner (and others in his shoes) and he will be executed without
regard to whether he is intellectually disabled and whether the State is carrying out
a cruel and unusual act. If this Court accedes to the State’s unnecessary rush to
execute Petitioner for its own convenience, it would not only sanction the very
“unacceptable risk” that it has admonished in the past, Hall, 134 S. Ct. at 1990
(2014), but it would create a new apex in the arbitrary application of the death
penalty, even as compared to the Court’s own case law, cf. Brumfield v. Cain, 135 S.
Ct. 2269 (2015) (holding that a state court acted unreasonably by denying the
petitioner even a hearing where his petitioner’s school records provided “good
reason to think” he was intellectually disabled).
Indeed, this Court’s failure to intervene would add insult to injury and would
disregard the characteristics of intellectual disability noted in Atkins itself. As this
Court has previously recognized, an intellectually disabled person already “may be
less able to give meaningful assistance to their counsel and are typically poor
witnesses, and their demeanor may create an unwarranted impression of lack of
remorse for their crime.” Atkins, 536 U.S. at 320-21. The upshot of Arkansas’ law
is that when such an individual—already placed at a higher risk of conviction,
death sentence, and failure at postconviction—is paired with deficient counsel—
further increasing the likelihood of conviction, of being sentenced to death, and of

16

 failing to prevail on postconviction—he will, in addition, forever be destined for
cruel and unusual execution.
ii.

The Eighth Amendment Requires a Fair Opportunity to
Have the Merits of a Substantial Atkins Claim
Considered.

This Court has held that “[t]he death penalty is the gravest sentence our
society may impose” and “[p]ersons facing that most severe sanction must have a
fair opportunity to show that the Constitution prohibits their execution.” Hall, 134
S. Ct. at 2001.

Thus, the Eighth Amendment requires that, where substantial

evidence of intellectual disability has been proffered, an individual sentenced to
death should have one fair opportunity to adjudicate the merits of his Atkins claim
in some forum. Indeed, this Court has recognized that “[a] conviction or sentence
imposed in violation of a substantive rule [of the Eighth Amendment] is not just
erroneous but contrary to law and, as a result, void,” so that “a court has no
authority to leave in place a conviction or sentence that violates a substantive rule.”
Montgomery v. Louisiana, 136 S. Ct. 718, 731 (2016)
The Eighth Amendment’s categorical bar on the execution of intellectually
disabled individuals, just like similar categorical bars against the execution of
juveniles, Roper v. Simmons, 543 U.S. 551 (2005); the execution of the insane, Ford,
477 U.S. 399; the execution of those convicted of rape, Kennedy v. Louisiana, 554
U.S. 407 (2008); and the imposition of life without parole on nonhomicide juvenile
offenders, Graham v. Florida, 560 U.S. 48 (2010). A rapist cannot insist on death

17

 and a sixteen-year-old cannot waive his exclusion from the death penalty. The
Constitution simply prohibits such executions, regardless of the defendant’s actions.
Any procedural default or waiver of these claims must cede to the categorical
protections of the Eighth Amendment. Just as Roper would prevent the execution
of a juvenile at any point from the time of sentencing until the moment of execution,
so too Atkins protects intellectually disabled individuals from execution despite any
failings by his previous attorneys. Petitioner’s case is unique, in that his lawyers
omitted his Atkins claim in federal court and he is now also left without recourse in
state court. This Court should grant Petitioner’s petition for writ of certiorari to
clarify that he must be given a “fair opportunity to show that the Constitution
prohibits [his] execution.” Hall, 134 S. Ct. at 2001.
iii.

Petitioner has a substantial Atkins claim that has never been
considered on the merits.

The available evidence supports Mr. Atkins claim and at a minimum
indicates a need for a full investigation and evidentiary hearing. Petitioner has the
traditional markings of Fetal Alcohol Syndrome, with visibly unusual eye settings
and deformed, pointed ears. His mother was 16 years-old at the time of his birth,
and she drank alcohol and smoked cigarettes throughout her pregnancy. He was in
special education, repeating kindergarten and the eighth grade, and ultimately
dropping out in ninth grade because he could not understand the school work.

By

age 15 or 16, Petitioner could not keep up with simple academic tasks, including
basic division or fractions. His standardized test scores placed him far below his
grade level.
18

 Before last week, no expert had ever evaluated Petitioner’s IQ or brain
functioning and no investigator had created even a list of his family members for
adaptive deficit investigations.

This testing confirmed the pattern of academic

deficits from Petitioner’s school years. Dr. Watson measured Petitioner’s IQ as 79,
adjusted for the Flynn effect, or the 8th percentile rank. Petitioner’s non-verbal
intellectual abilities were 75, at the 5th percentile rank, and his testing showed a
significant right versus left hemisphere dysfunction.

The full neuropsychological

testing showed that Petitioner had serious deficits in academics skills memory,
motor functions, social cognition, and executive functions. Petitioner has temporal
lobe brain dysfunction and striking deficits in verbal and non-verbal memory.
Dr. Watson determined that Petitioner has a Fetal Alcohol Syndrome
Disorder. This means that Petitioner’s intellectual deficits have been with him since
birth. In individuals with Fetal Alcohol Syndrome fact, an IQ score may overstate
the individual’s level of intellectual functioning. Adler, et al., A Proposed Model
Standard for Forensic Assessment of Fetal Alcohol Spectrum Disorders, 38 J.
Psychiatry & L. 383, 390 (2010).

In intellectually disabled individuals without

Fetal Alcohol Syndrome, their IQ tends to match their levels of intellectual and
adaptive functioning. Conversely, individuals with Fetal Alcohol Syndrome tend to
score higher on IQ tests despite their low levels of intellectual and adaptive
functioning. Id. at 404. That is, their IQ is not an adequate measure of their
intellectual and adaptive functioning. Petitioner exemplifies this research. Simply

19

 put, his IQ score may not fully measure his ability to function, which is what the
Arkansas statute on intellectual disability concerns.
Dr. Watson concluded in light of Petitioner’s testing, and the dictates of the
professional norms under the DSM-V,

that determination of his intellectual

functioning will require a full investigation into adaptive deficits.
Because Petitioner has demonstrated both a “reasonable probability” that
this Court will grant certiorari and a “fair possibility” that it will rule on the merits
in his favor, this Court should grant a stay.
B.

The Balance Of Equities—Including The Irreparable Harm
Petitioner Will Suffer If He Is Executed Before His Atkins
Claim Is Properly Adjudicated—Strongly Weighs In Favor Of A
Stay.

Arkansas’ interest in Ledell Lee’s timely execution must be weighed against
Ledell Lee’s continued interest in his life.

See Ohio Adult Parole Authority v.

Woodard, 523 U.S. 272, 289 (1998) (“[I]t is incorrect * * * to say that a prisoner has
been deprived of all interest in his life before his execution.”) (O’Connor, J., plurality
opinion). Arkansas has an interest in the enforcement of judgments handed down
by its courts.

Petitioner has a constitutional entitlement to an execution that

comports with the Eighth Amendment and due process. This right includes the
ability to have meaningful judicial review, including from this Court, of the complex
constitutional claims he has raised. It also goes without saying that Petitioner
plainly will be harmed in the absence of a stay. “[T]hat irreparable harm will result
if a stay is not granted * * * is necessarily present in capital cases.” Wainwright v.
Booker, 473 U.S. 935, 935 n.1 (1985) (Powell, J., concurring).
20

 This Court held in Barefoot that “a death sentence cannot begin to be carried
out by the State while substantial legal issues remain outstanding.” 463 U.S. at
888. This case presents substantial legal issue upon legal issue: precipitated by a
catastrophic breakdown in Petitioner’s right to counsel, in addition to his never
before litigated Atkins claim, Petitioner has unexplored claims, including actual
innocence.
If Petitioner is executed before this Court hears his case, he will forever be
deprived of the opportunity to vindicate his rights. In Gardner v. Florida, 430 U.S.
349, 357-358 (1977), Justice Stevens explained: “[D]eath is a different kind of
punishment from any other which may be imposed in this country.” It is thus “of
vital importance to the defendant and to the community that any decision to impose
the death sentence be, and appear to be, based on reason.” The State’s unreasoning
march to execution here fails that test miserably.

21

 CONCLUSION
Given this record, a stay of execution should be granted to permit full and
fair judicial review.
Respectfully submitted,
*CASSANDRA STUBBS
ACLU CAPITAL PUNISHMENT PROJECT
201 W. Main St. Suite 402
Durham, NC 27701
(919) 688-4605
cstubbs@aclu.org
LEE SHORT
SHORT LAW FIRM
425 W. Broadway St. A
North Little Rock, AR 72114
(501) 766-2207
leedshort@gmail.com
NINA MORRISON
THE INNOCENCE PROJECT
40 Worth Street, Ste. 701
New York, NY 10013
(212) 364-5357
nmorrison@innocenceproject.org
Counsel for Petitioner
*Counsel of Record

22

 No. 17-______
IN THE

Supreme Court of the United States
_________

LEDELL LEE,
Petitioner,
v.
STATE OF ARKANSAS,
Respondent.
_________
EMERGENCY CAPITAL CASE
EXECUTION SCHEDULED FOR APRIL 20, 2017 at 8:15pm CST
_________
CERTIFICATE OF SERVICE
I, Cassandra Stubbs, a member of the Bar of this Court, hereby certify that
on this 20th day of April, 2017, copies of the Application for Stay of Execution were
served by electronic mail to:
Valerie Glover Fortner
Leslie Rutledge
Attorney General
I further certify that all parties required to be served have been served.

____________________________________
Cassandra Stubbs