Lee v. Hobbs
ORDER granting 171 Motion to reconsider, though not for most of the reasons argued. Testing Orders, part of 168 and 170 vacated. The most prudent course, all material things considered, is to cancel tomorrow's examination and testing. Signed by Judge D. P. Marshall Jr. on 4/18/2017. (thd)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
WENDY KELLEY, Director,
Arkansas Department of Correction
Given the many filings in this case during the last few days, it sure
seems like a pending matter within the meaning of Federal Rule of Civil
Procedure 35(a). And Lee is the one who has recently added many pages
arguing about Atkins issues, intellectual functioning, and neuropsychological
test results. E.g., Ng 162, 162-1 & 166 at 29-36. The Court was trying to be fair
in giving the State access for testing. But, Lee is partly right on this: if his
execution is stayed, then there will be time for the State's examination in due
course; if things go the other way, then the testing will have needlessly taken
up some of Lee's last days. Kelley is right, too, that this confluence of
circumstances is partly the fruit of Lee's litigation strategy.
The Court has made no decision on, and awaits Kelley's responses to,
the motions for funding, a stay, and Rule 60(b) relief. But the most prudent
course, all material things considered, is to cancel tomorrow's examination
and testing. The raw-data issue, as well as the lawyer-presence issue, are
moot for now. Lee's request for a Court-ordered visit with counsel is beyond
the currently briefed disputes. The Court directs counsel to confer and try to
Motion to reconsider, Ng 171, granted, though not for most of the
reasons argued. Testing Orders, part of Ng 168 and Ng 170, vacated.
D.P. Marshall Jr.
United States District Judge
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