Stay of Execution

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7^th Circuit Court of Appeals

Case Name: Daniel Lewis Lee v. T.J. Watson, Warden, et al.,

Case No.: 20-2128

Officials: SYKES, Chief Judge, and EASTERBROOK and BARRETT, Circuit Judges.

Focus: Stay of Execution

Daniel Lewis Lee and his codefendant, Chevy Kehoe, were members of the Aryan Peoples’ Republic (a/k/a Aryan Peoples’ Resistance), a white supremacist organization founded for the purpose of establishing an independent nation of white supremacists in the Pacific Northwest. In January 1996 Lee and Kehoe traveled from the State of Washington to the Arkansas home of William Mueller, a firearms dealer who owned a large collection of guns and ammunition. There they overpowered Mueller and his wife, Nancy, and questioned their eight-year-old daughter Sarah about the location of Mueller’s guns, ammunition, and cash. After stealing about $30,000 worth of weapons and $50,000 in cash and coins, Lee and Kehoe shot all three victims with a stun gun, placed plastic bags over their heads, and sealed the bags with duct tape to asphyxiate them. They then taped rocks to the three victims and threw them into the Illinois Bayou. The bodies were discovered six months later in Lake Darnelle near Russellville, Arkansas. United States v. Lee, 374 F.3d 637, 642 (8th Cir. 2004).

Lee and Kehoe were indicted in federal court in the Eastern District of Arkansas on three counts of capital murder in aid of racketeering, 18 U.S.C. § 1959(a)(1), and related crimes. The Eighth Circuit affirmed Lee’s convictions and death sentence. 374 F.3d 637 (8th Cir. 2004); 274 F.3d 485 (8th Cir. 2001). In July 2019 the United States scheduled Lee’s execution for December 9, 2019. Two months later he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the Southern District of Indiana, where he is confined in the Terre Haute federal prison. He requested a stay of execution but later withdrew that request. The district judge nonetheless stayed Lee’s execution. We vacated the stay order because § 2255(e) bars a § 2241 petition with a limited exception for claims for which a motion under § 2255 is “inadequate or ineffective to test the validity of” the prisoner’s detention; the exception is customarily referred to as the “Savings Clause.” Lee’s § 2241 petition raised two challenges to his death sentence: a Strickland claim1 for ineffective assistance of trial counsel during the sentencing phase and a Brady/Napue claim based on evidence that was supposedly newly discovered. The former claim attacked counsel’s failure to adequately object to the government’s cross-examination of the defense psychologist regarding the psychopathology test; the latter was premised on a document in the court record in Lee’s 1990 Oklahoma murder case that current counsel contends sheds some light on why the case was resolved as a robbery.

In our order vacating the stay, we explained that Lee’s likelihood of success on the merits was “slim” because both claims—Brady claims alleging suppression of exculpatory evidence and Strickland claims alleging ineffective assistance of counsel—are “regularly made and resolved under § 2255,” so the remedy by motion cannot be called “inadequate or ineffective” for purposes of the Savings Clause. Lee v. Watson, No. 19-3399, 2019 WL 6718924, at *1 (7th Cir. Dec. 6, 2019). Our order vacating the stay had no immediate effect because Lee’s sentence was subject to a separate injunction entered in litigation in the district court for the District of Columbia involving a broader challenge to the federal execution protocol. On June 29, 2020, the Supreme Court denied certiorari in the Execution Protocol case under the name Bourgeois v. Barr, No. 19-1348, 2020 WL 3492763. Three days later a panel of this court issued a decision affirming the denial of a § 2241 petition by another death-row prisoner confined at the Terre Haute prison. Purkey v. United States, No. 19-3318, 2020 WL 3603779 (7th Cir. July 2, 2020). Purkey squarely rejected the arguments Lee raises here. On July 8 Lee moved for leave to file an oversized appellate brief and tendered the brief with the motion, but the brief makes scant mention of Purkey. We granted the motion that same day and ordered the government to respond by 5 p.m. Central Time on July 9. It has done so. Oral argument is unnecessary because under Purkey and our December 6, 2019 order vacating the stay of execution, Lee’s arguments are frivolous.

This case is indistinguishable from Purkey. Lee raised a claim of ineffective assistance of trial counsel in his § 2255 motion and now seeks to use § 2241 as a vehicle to raise a new argument about trial counsel’s ineffectiveness. Under Purkey the Savings Clause does not apply; there was nothing structurally inadequate about § 2255 as a vehicle for this argument. Like Wesley Purkey, Lee invokes the Martinez/Trevino doctrine as interpreted in Ramirez. We rejected this argument in Purkey and that decision controls here.

Lee’s Brady/Napue claim fares no better. As we explained in our December 6 order, the alleged “newly discovered” evidence on which this claim rests was known to Lee and is contained in the publicly available court record in Lee’s 1990 Oklahoma murder case and thus was available with reasonable diligence. Accordingly, the evidence is neither newly discovered under Webster nor was suppressed within the meaning of Brady. The Savings Clause does not apply; § 2255 was not structurally inadequate or ineffective to raise the Brady/Napue claim.

In sum, it follows directly from Purkey and our earlier decision in this case that Lee’s § 2241 petition was properly denied. We therefore affirm the judgment of the district court. We also deny Lee’s motion for a stay of execution, filed today, which relies on the same now-rejected merits arguments.

Affirmed in part. Denied in part.

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