No. __________________ October Term, 2017 _____________________________________________ IN THE SUPREME COURT OF THE UNITED STATES _____________________________________________ LEDELL LEE, Petitioner, v. STATE OF ARKANSAS, Respondent. _____________________________________________ CAPITAL CASE EXECUTION SCHEDULED FOR APRIL 20, 2017 AT 7:15 PM CDT _____________________________________________ APPLICATION FOR STAY OF EXECUTION BASED ON PENDING ACTION UNDER 42 U.S.C. § 1983 _____________________________________________ Cassandra Stubbs1 ACLU CAPITAL PUNISHMENT PROJECT 201 W. Main St., Suite 402 Durham, NC 27701 (919) 688-4605 cstubbs@aclu.org Lee D. Short SHORT LAW FIRM 425 W. Broadway, Suite 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 Attorneys for the Petitioner Ledell Lee 1 Counsel of Record for Petitioner, Ledell Lee Dated: April 20, 2017 To the Honorable Justice Samuel Alito, as Circuit Justice for the United States Court of Appeals for the Eighth Circuit: Petitioner Ledell Lee, applies to this Court for a stay of his execution, currently scheduled for April 20, 2017 at 8:15 PM CDT2 pursuant to 28 U.S.C. § 2101(f). In two orders issued this afternoon and this evening, the Arkansas Supreme Court summarily denied Petitioner the opportunity to conduct post-conviction DNA testing in the case Ledell Lee v. State of Arkansas, CR-08-160 and CR-17-315 (April 20, 2017)(Hart, J. dissenting); the orders are attached to the Application as Appendix A and B (Appendix B will be supplemented to include the dissenting opinion, which has not yet been issued). Petitioner then filed an original Complaint with the United States District Court for the Eastern District of Arkansas seeking preliminary and injunctive relief, including, inter alia, (1) an order declaring Arkansas’ procedures for providing access to potentially exculpatory DNA evidence unconstitutional, and (2) an immediate stay of execution so that the constitutional claims in his complaint may be heard on their merits. That was denied moments ago. At this writing, Petitioner is preparing to file an appeal in the United States Eighth Circuit Court of Appeals regarding his §1983 action. However, his execution is scheduled for 8:15pm CDT and it is feared that the Eighth Mr. Lee was scheduled to be executed at 7:00 p.m., however, the Eighth Circuit has issued a temporary stay until 8:15 p.m. 2 Circuit will not have time to duly consider the merits before his execution is carried out, nor will this Court. As such, Petitioner respectfully requests that this Court issue a stay of execution to permit the Court of Appeals to consider the claims for relief in the Complaint. These include, in particular, critical questions as to whether Arkansas’ procedures for affording access to DNA evidence prior to a convicted person’s execution adequately protect the liberty interests recognized by this Court in Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 55, 129 S. Ct. 2308, 2312, 174 L. Ed. 2d 38 (2009). Prior to seeking federal court review of these procedures, Petitioner duly availed himself of those avenues for relief under state law, as required by Skinner v. Switzer, 562 U.S. 521, 531 (2011). His federal constitutional claims thus became ripe less than two hours before his scheduled execution. Thus, Petitioner submits that an emergency stay by this Court is appropriate. Also attached to this application is Appendix C: Complaint Filed Pursuant to 42 U.S.C. § 1983. Mr. Lee has consistently asserted his innocence and denied any involvement in the 1993 murder of Debra Reese. Today, probative biological evidence currently in the custody and control of the State of Arkansas may now be able to provide— through the use of modern DNA testing technologies—confirmation of the veracity of Mr. Lee’s innocence claim. Petitioner hereby moves this Court for a stay of his execution so that his federal constitutional right to reasonable procedures for 1 consideration of his liberty interest in proving his innocence with DNA testing may be heard on its merits and not mooted by his execution. CONCLUSION Given this record, a stay of execution and full and fair review are appropriate here. Dated: April 20, 2017 Respectfully submitted, /s/ Cassandra Stubbs CASSANDRA STUBBS Counsel of Record for Ledell Lee ACLU Capital Punishment Project 201 W. Main St. Suite 402 Durham, NC 27701 (919) 688-4605 /s/ Nina Morrison NINA MORRISON Innocence Project 40 Worth Street, Suite 701 New York, NY 10013 (212) 364-5340 /s/ Lee D. Short LEE D. SHORT Short Law Firm 425 W. Broadway St. A North Little Rock, AR 72114 (501) 766-2207 Counsel for Petitioner, Ledell Lee 2 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing has been furnished by first class mail to the below this the 20th day of April, 2017: Valerie Fortner Leslie Rutledge Attorney General Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 /s/ Cassandra Stubbs 3