United States District Court, S.D. Indiana, Terre Haute Division
OPINION AND ORDER STAYING EXECUTION OF DANIEL LEWIS
PATRICK HANLON UNITED STATES DISTRICT JUDGE.
Lewis Lee is a federal prisoner on death row at the United
States Penitentiary in Terre Haute, Indiana. He was sentenced
to death 20 years ago in the United States District Court for
the Eastern District of Arkansas after a jury found him
guilty of murdering a gun dealer and the gun dealer's
family to steal money and guns. The conviction and sentence
were affirmed on direct appeal. Mr. Lee sought postconviction
relief under 28 U.S.C. § 2255 in the district court
where he was convicted and sentenced. That request was denied
by the district court and the court of appeals affirmed. Mr.
Lee filed further § 2255 motions challenging his death
sentence in the district court of conviction, but those
challenges were denied on procedural grounds.
now seeks relief from this Court by way of a 28 U.S.C. §
2241 petition alleging ineffective assistance of counsel and
newly discovered evidence as the basis for the relief sought.
Mr. Lee first argues that his trial counsel was ineffective
during the penalty phase of his trial in violation of his
Sixth Amendment rights. Mr. Lee next argues that newly
discovered evidence shows that the United States violated his
due process rights when it suppressed material evidence and
misled the jury regarding the nature of a prior conviction.
Mr. Lee seeks a stay of his execution and asks the Court to
authorize him to conduct discovery.
is entitled to a stay of his execution based on his due
process claims. While further factual development is
needed for the Court to be able to resolve the claims
presented in Mr. Lee's petition, he has shown there is a
significant possibility that he can bring these claims in a
§ 2241 action and substantial grounds for the claims.
The other factors necessary to obtain a stay also weigh in
Mr. Lee's favor. Accordingly, Mr. Lee's execution is
stayed until further order of this Court.
following procedural background focuses on the facts relevant
to Mr. Lee's due process claims.
The Indictment and Trial
and his co-defendant Chevie Kehoe were indicted in the United
States District Court for the Eastern District of Arkansas.
See United States v. Lee, No. 4:97-cr-00243-KGB-2
(E.D. Ark. Dec. 12, 1997), Dkt. 1. They were tried together
and, following a two-month trial, the jury found both guilty
of capital murder and racketeering. Lee II, 374 F.3d
at 643. Mr. Lee and Mr. Kehoe each had a separate trial at
the penalty phase.
Kehoe's penalty phase trial was first, and the jury
returned a verdict of life in prison without the possibility
of release. Lee I, 274 F.3d at 488. The United
States informed the District Court that, given this decision,
it did not intend to continue pursuing the death penalty for
Mr. Lee. Id. As later explained by the District
Judge, “[t]here was no question that Kehoe was the more
culpable of the two with regard to the criminal acts charged
in the indictment and proved at trial.” Dkt. 1-2 at 3.
But the Attorney General denied the United States
Attorney's request to withdraw the death penalty with
respect to Mr. Lee, Lee I, 274 F.3d at 488, so Mr.
Lee's penalty phase proceeded. The jury found that the
United States established four of the five aggravating
factors it presented, Dkt. 1-10 at 5-8, and one or more
jurors found that Mr. Lee established five of the fourteen
mitigating factors he presented, id. at 9-10. The
jury returned a verdict of death on May 14, 1999. Lee
I, 274 F.3d at 488.
Mr. Lee's Appeals and Collateral Attacks on His
Conviction and Sentence
Lee's conviction and sentence were affirmed on direct
appeal. Lee II, 374 F.3d at 643. He then filed a
motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255 in the United States District Court for
the Eastern District of Arkansas. That motion was denied, and
the Eighth Circuit affirmed. See Lee III, 715 F.3d
at 217; United States v. Lee, 2008 WL 4079315 (E.D.
Ark. Aug. 28, 2008). Mr. Lee's Rule 60(b) motion was also
denied, and the Eighth Circuit affirmed that decision as
well. Lee IV, 792 F.3d at 1022; United States v.
Lee, 2014 WL 1093197, *5-6 (E.D. Ark. Mar. 18, 2014).
September 10, 2018, Mr. Lee filed another § 2255 motion
in the District Court. United States v. Lee, No.
4:97-cr-00243-KGB, Dkt. 1297 (E.D. Ark. Sept. 10, 2018). He
argued that newly discovered evidence revealed that his due
process rights as set forth in Brady v. Maryland,
373 U.S. 83 (1963), Giglio v. United States, 405
U.S. 150 (1972), and Napue v. Illinois, 360 U.S. 264
(1959) (the “Brady and Napue
claims”) were violated during the penalty phase of his
trial. These are the claims that Mr. Lee now raises in his
§ 2241 petition before this Court. Neither claim was
raised at the sentencing phase of his trial or in his first
§ 2255 petition.
February 26, 2019, the District Court denied the September
2018 § 2255 motion as an unauthorized successive §
2255 motion and denied Mr. Lee a certificate of
appealability. Lee, No. 4:97-cr-00243-KGB, Dkt.
1313. The District Court held that another § 2255 motion
raising material Brady claims constitutes a
“second or successive” § 2255 motion, and
thus Mr. Lee could not proceed without authorization from the
Eighth Circuit. Id. at 14-17. The parties agree that
§ 2255(h) does not allow Mr. Lee to obtain this
authorization. While Mr. Lee's § 2255 motion was not
allowed to proceed, the District Court found that the newly
discovered evidence was material, specifically stating that
had the evidence been disclosed at trial “it is
reasonably likely that . . . the outcome at sentencing would
have been different.” Id. at 14.
25, 2019-while Mr. Lee's request for a certificate of
appealability was pending before the Eighth Circuit-the
Department of Justice set Mr. Lee's execution date for
December 9, 2019. On November 4, 2019, the Eighth Circuit
denied Mr. Lee's request for a certificate of
appealability. Lee v. United States, No. 19-2432
(8th Cir. Nov. 4, 2019). Judge Kelly dissented, arguing that
reasonable jurists could disagree regarding whether a
material Brady claim in a second § 2255 motion
qualifies as an impermissible second or successive §
2255 motion. Id. at 1-2.
Mr. Lee's Petition in this Case
filed the habeas petition in this case under 28 U.S.C. §
2241 on September 26, 2019. Mr. Lee moved to stay his
execution on November 8, 2019, the same day his habeas
petition was fully briefed. Mr. Lee's discovery motion-
seeking to conduct additional discovery to support both of
his claims-remains pending.
case's procedural posture is unique because Mr. Lee is a
plaintiff in a case pending in the United States District
Court for the District of Columbia (the “Execution
Protocol Litigation”). On November 20, 2019, while the
stay request was pending in this case, the United States
District Court for the District of Columbia stayed Mr.
Lee's execution. See In the Matter of the Federal
Bureau of Prisons' Execution Protocol Cases, No.
1:19-mc-00145-TSC (D.D.C. Nov. 20, 2019), Dkt. 50, Dkt.
Mr. Lee then moved to withdraw his motion to stay his
execution in this Court. Dkt. 22.
United States has appealed the stay entered in the Execution
Protocol Litigation. Id., Dkt. 52. The appeal is
pending before the United States Court of Appeals for the
District of Columbia Circuit. See In re FBOP Execution
Protocol Cases, No. 19-5322 (D.C. Cir. Nov. 22, 2019).
The United States' request to vacate the stay issued in
the Execution Protocol Litigation is pending before the
United States Supreme Court. See Barr, et al. v. Roane,
et al., No. 19A615 (Dec. 2, 2019).
not known at this time whether the stay issued by the
District Court in the District of Columbia will stand or be
vacated. But Mr. Lee's motion for a stay in this case is
fully briefed, and considerations of the orderly
administration of justice make it appropriate for the Court
to rule at this time on Mr. Lee's motion for a stay.
standards governing preliminary injunctions apply to motions
to stay executions in habeas proceedings. See Williams v.
Chrans, 50 F.3d 1358, 1360 (7th Cir. 1995) (“The
law governing stays of death sentences is, in general, the
same as that employed in other situations.”). “A
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008); see Hill v. McDonough, 547
U.S. 573, 584 (2006). Additionally, the Court must consider
“the extent to which the inmate has delayed
unnecessarily in bringing the claim.” Nelson v.
Campbell, 541 U.S. 637, 649-50 (2004); see Lambert
v. Buss, 498 F.3d 446, 451 (7th Cir. 2007).
death penalty context, a stay is warranted only upon “a
showing of a significant possibility of success on the
merits.” Hill, 547 U.S. at 584. When, as here,
a habeas petition is not a prisoner's first, a stay of
execution “should be granted only when there are
‘substantial grounds upon which relief might be
granted.'” Garza v. Lappin, 253 F.3d 918,
920-21 (7th Cir. 2001) (applying this standard to a §
Mr. Lee has Shown a Significant Possibility of Success on the
Merits of his Brady and Napue
Court begins with the factual background necessary to
understand Mr. Lee's Brady and Napue
claims. The District Court of conviction summarized the
background of Mr. Lee's Brady and Napue
claims before ruling that it could not reach the merits:
To justify a death sentence for Lee when Kehoe had been
sentenced to life imprisonment, the Government's
penalty-phase case emphasized the future-dangerousness
aggravator. The Government argued that Lee's past conduct
showed that he was violent and volatile, and that he would
present a danger in prison. Focusing on the Wavra murder, the
Government introduced evidence showing Lee's role in that
crime. Brian Compton, who was at the party when Wavra was
killed by John David Patton, testified about Lee's
involvement; the transcript of Lee's testimony at John
David Patton's Oklahoma preliminary hearing was read
aloud; and the responding Oklahoma detective and the forensic
pathologist described Wavra's wounds and cause of death.
The jury heard that, at a social gathering in 1990, Lee, then
age seventeen, and his cousin, John David Patton, beat Wavra
and forced him down a manhole into a storm sewer; that Patton
went down into the manhole with Wavra, while Lee retrieved a
plastic bag, rope, and knife that he handed down to Patton;
that Patton handed Wavra's clothes up to Lee, who put
them in the plastic bag; and that Patton then used the knife
to repeatedly stab Wavra and slit his throat. Patton was
convicted of first-degree murder in an Oklahoma state court,
while Lee pled to deferred adjudication on a robbery charge.
Other future-dangerousness evidence included (1) Lee's
threatening behavior toward a sheriff's deputy, while he
was in jail awaiting trial, and (2) a 1995 Florida conviction
for carrying a concealed weapon.
In both opening and closing argument, the Government told the
jury that Lee “has an earlier murder under his
belt.” It argued that, even though Patton
“wielded that knife, ” Lee helped him by giving
him the knife and rope. The Government argued Lee knew what
he was doing when he gave the knife to Patton, and that he
both “legally and morally” had “the blood
of Joey Wavra” on his hands. The Government contended
the robbery plea offer was a “gift” from the