Lee et al v. Hutchinson et al

Filing 56

ORDER: Lee's 49 Amended Motion for a preliminary injunction is denied. The State Defendants' 51 Motion to Strike is denied too. Signed by Judge D. P. Marshall Jr. on 4/20/2017. (jak)

FILED

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
LEDELL LEE, ADC# 97101; JASON McGEHEE;
STACEY JOHNSON; MARCEL WILLIAMS;
and KENNETH WILLIAMS

v.

U.S. DISTRICT COURT
EASTERN Dl~TRfCT ARKANSAS

APR 20 2017

PLAINTIFFS

No. 4:17-cv-194-DPM
No. 4:17-cv-195-DPM
No. 4:17-cv-196-DPM
No. 4:17-cv-198-DPM
No. 4:17-cv-199-DPM

ASA HUTCHINSON, in his official capacity as
Governor of Arkansas; WENDY KELLEY, in her
official capacity as Director of the Arkansas
Department of Correction; JOHN FELTS, JOHN
BELKEN, ANDY SHOCK, DAWNE BENAFIELD
VANDIVER, JERRY RILEY, ABRAHAM
CARPENTER, JR., and LONA H. McCASTLAIN,
all in their official capacities as Members
of the Arkansas Parole Board

DEFENDANTS

JACK HAROLD JONES, JR.

INTERVENOR
ORDER

Lee's amended motion for a preliminary injunction, NQ 49, is denied.
The State Defendants' motion to strike, NQ 51, is denied too. First, Lee and the
other plaintiffs have appealed this Court's original ruling on their first motion
for a preliminary injunction; and this Court doesn't have jurisdiction to reach
the issues pending in the Court of Appeals. Second, though this Court has
power to act based on new facts submitted, Lee's renewed request for an

injunction on this basis fails on the merits.
His request is much belated, coming as it did on the day before his
scheduled execution. That timing weighs against granting relief. Hill v.

McDonough, 547 U.S. 573, 584-85 (2006); McGehee v. Hutchinson, No. 17-1804,
slip op. at 4 (8th Cir. 17 April 2017). Lee's amended motion is an expanded
argument about why he was prejudiced by the compressed clemency process;
the calendar, he says, didn't allow his current lawyers to make many new
points about what his former lawyers did wrong at every stage of the case.
Without using the words, he's arguing ineffective assistance of clemency
counsel. As the Court has already ruled, though, the Constitution doesn't
guarantee counsel as part of the due process minimum during clemency
proceedings. Gardner v. Garner, 383 Fed. App'x 722, 728-29 (10th Cir. 2010).
The lawyer-challenges claims therefore fail as a matter of law. Alternatively,
the new materials make out no solid claim that the State Defendants so
interfered with Lee's lawyers' clemency work that the circumstances
amounted to a due process violation. The clemency process in Lee's case was,
as the Court has said, imperfect and sometimes shoddy. But Lee hasn't
sufficiently connected those defects with his lawyers' not uncovering or
presenting the new information aboutneuropsychological deficits, mitigation
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stumbles, and DNA testing before now. Weighing and balancing all the
material considerations, Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013),
Lee's latest arguments do not support a preliminary injunction related to the
clemency process.
So Ordered.

~·

D.P. Marshall Jr.
United States District Judge
;LO

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