7th Circuit order would have allowed federal execution

Though a Supreme Court order ultimately prevented the government from executing an Indiana inmate on Monday, an earlier 7^th Circuit Court of Appeals ruling would have allowed the execution to proceed as scheduled.

A three-judge panel of the 7^th Circuit vacated the stay of Daniel Lewis Lee’s execution on Dec. 6, just one day after Indiana Southern District Judge J.P. Hanlon ordered the stay. Lee was scheduled to die by lethal injection Monday at the federal prison in Terre Haute, but a subsequent SCOTUS ruling has halted all federal executions for now.

The government filed an emergency motion to vacate Hanlon’s order, arguing the district court judge wrongly decided that Lee was entitled to relief under the savings clause.

Lee, a white supremacist, was sentenced to death in 1999 after his triple-murder conviction in Arkansas federal court. His attempts to vacate that sentence have repeatedly failed in Arkansas and at the 8^th Circuit Court of Appeals.

“The saving clause bars Lee’s habeas petition because Lee cannot show that (28 U.S.C. § 2255) is inadequate or ineffective to test the legality of his sentence, and as a result, Lee cannot demonstrate there is a likelihood his habeas petition will succeed on the merits,” the government argued in its emergency motion. “The district court erred in granting a stay on this basis alone, but moreover, the other equitable factors, including undue delay by Lee, also weigh against a stay.”

In ordering the stay of Lee’s execution, Hanlon found a “significant possibility” that Lee would be able to prove that his rights under Brady v. Maryland and Napue v. Illinois were violated during the penalty phase of his trial.

On the Brady claim, Lee argued the government withheld evidence during the penalty phase that an Oklahoma judge did not find probable cause to charge him with murder in an unrelated case. Hanlon said the government relied on that Oklahoma case — in which Lee pleaded guilty to robbery — to help secure a death sentence.

Similarly, on the Napue claim, Lee said the government misled the jury by telling them he was “legally” responsible for the Oklahoma murder, and by telling them his robbery plea was a “gift” from the prosecutor.

“Webster v. Daniels, 784 F.3d 1123 (7^th Cir. 2015) (en banc), holds that §2255 may be deemed inadequate or ineffective if the provision for successive collateral attacks in §2255(h) does not permit a prisoner to present factual developments that could not have been litigated earlier,” 7^th Circuit Judge Frank Easterbrook wrote in an order vacating Hanlon’s stay. “The district court stated that there is a ‘significant possibility’ that Lee ‘may’ be able to satisfy the standard of Webster, but the court did not conclude that there is a ‘strong showing’ either that Webster’s standard has been met or that Lee would be entitled to relief on the merits if the issues he raises were relitigated. Indeed, the judge did not explain why there is even a ‘significant possibility’ that the supposedly newly discovered evidence is in fact newly discovered, as Webster uses that phrase.”

The 7^th Circuit also faulted Lee for delays in seeking relief under 28 U.S.C. § 2241, which Hanlon said he was entitled to under the savings clause. His petition in the Southern District was filed two months after his execution date was set in July, Easterbrook said, and he did not seek relief under Section 2241 “more than four years after, by his own account, he obtained the evidence that he characterizes as newly discovered.”

Hanlon, in contrast, said the government was the party that was delaying the litigation, noting an eight-year delay in the adoption of the new execution protocol announced in July by Attorney General William Bar.

Easterbrook said “(i)t is understandable that a district judge, entertaining a request for relief from capital punishment, would want to take a hard look at the matter, a look that may take more time than the impending execution date permits. But someone who waits years before seeking a writ of habeas corpus cannot, but for the very act of delay, justify the postponement of the execution.”

Hanlon had earlier denied similar relief to Wesley Ira Purkey, another death row inmate at the Terre Haute prison. Purkey was scheduled for execution on Friday, but the Supreme Court’s order has put all federal executions on hold following a ruling against the government in the District Court in Washington, D.C.