Lee v. Hobbs

Filing 188

ORDER finding this Court lacks jurisdiction and Lee needs permission from the Court of Appeals to proceed. The motion to reopen, motion for a stay, and motion for funding for ancillary services 164 , 166 , and 167 are transferred immediately to the United States Court of Appeals for the Eighth Circuit. Signed by Judge D. P. Marshall Jr. on 4/20/2017. (ljb)

FILED

U.S. DISTRICT COURT
EASTERN Dl!TRfCT AR~SAS

IN THE UNITED STATES DISTRICT COURT APR 20 2017
EASTERN DISTRICT OF ARKANSASJAMES w.re:::ACK, CLERK
PINE BLUFF DIVISION
By: 9.2.
DEP CLERK
PETITIONER

LEDELLLEE
No. 5:01-cv-377-DPM

v.

WENDY KELLEY, Director,
Arkansas Department of Correction

RESPONDENT

ORDER
Ledell Lee's conviction and death sentence were examined in one
complete round of habeas corpus proceedings. NQ 115, 127-128, 140 & 147. He
is scheduled to be executed today, 20 April 2017. Two days ago, he moved for
relief under Federal Rule of Civil Procedure 60(b)(6), arguing that
extraordinary circumstances justify reopening his habeas case so he can make
three claims. NQ 166 at 29-47. He wants to argue that he's intellectually
disabled, that there was never a meaningful mitigation investigation, and that
new DNA testing would show he's actually innocent. Lee insists that these
claims" are not asserted as new grounds for relief" at this stage. NQ 166 at 29.
Instead, he describes his prior lawyers' alleged conflicts and failure to make
these three claims as "extraordinary circumstances" justifying Rule 60(b)(6)
relief. NQ 166 at 23-47.

Rule 60 can't be used to side step the presumptive bar against
successive habeas petitions. Gonzalez v. Crosby, 545 U.S. 524, 528-32 (2005).
Lee's motion, though, tries to do just that. He says his prior habeas lawyers
grossly failed him. NQ 166 at 24-29. But while an assertion of ineffective
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assistance of habeas counsel may be characterized as a defect in the integrity
of the habeas proceeding, it ultimately seeks to assert or reassert substantive
claims with the assistance of new counsel." Ward v. Norris, 577 F.3d 925, 932
(8th Cir. 2009); see also Gonzalez, 545 U.S. at 530-32 & n.5. What Lee has
labeled an extraordinary circumstance" is thus a claim" within the meaning
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of Gonzalez and Ward.

So, too, his arguments about his State lawyers'

shortcomings, NQ 166 at 23-24, which have all been previously decided in

habeas or constitute new claims. In sum, Lee's Rule 60(b) motion is actually
a second or successive petition requiring preauthorization from the Court of
Appeals. 28 U.S.C. § 2244(b)(3)(A).
To avoid this conclusion, Lee's reply disclaims any reliance on prior

habeas counsel's ineffectiveness. NQ 183 at 7. He says he's instead seeking
relief based on their disqualifying conflicts of interest that resulted in
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Mr. Lee's counsel maintaining their incompetent representation ... [.]" Ibid.

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This is creative, but unpersuasive.

Lee's motion is largely devoted to

describing all the things his prior habeas lawyers should have done in light of
what his lawyers in the state proceedings did wrong. And "an attack based
on ... habeas counsel's omissions ordinarily does not go to the integrity of the
proceedings, but in effect asks for a second chance to have the merits
determined favorably." Gonzalez, 545 U.S. at 532 n.5. Lee is, in effect, asking
for that second chance. But under Gonzalez and Ward, substance controls, not
the lawyer's label. And the substance of Lee's motion is that his prior lawyers
were ineffective for not pursuing claims before now about intellectual
disability, an incomplete mitigation investigation, and actual innocnence
based on new DNA testing. Lee can't escape this conclusion by artful issue
framing.
Lee's reliance on Buck v. Davis is misplaced. 580 U.S._, 137 S. Ct. 759
(2017); NQ 166 at 22-23 & 28 n.4. The Supreme Court's recent decision
focused on certificates of appealability and Rule 60(b)(6), not the interaction
between that Rule and AEDPA's various bars. Rule 60(b) creates narrow
exceptions to the venerable general principle that a court's judgment must
become final at some point and should stand absent some particularly

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compelling reason. Read as broadly as Lee suggests, the extraordinarycircumstances exception threatens to overwhelm the general rule. Though
couched in terms of the integrity of the federal habeas proceeding, which is the
limiting law under Gonzalez, Lee's new arguments go beyond a non-merits
issue, such as the applicable statute of limitations or a procedural default.

Gonzalez, 545 U.S. at 532 nn.4-5. The deeper layer of Lee's many arguments
about his habeas lawyers' failings is the merits. If conflict-prompted stumbles
by federal habeas lawyers are extraordinary circumstances that satisfy Rule
60(b)(6), then Buck has silently invalidated AEDPA's bar against
ineffectiveness claims about those lawyers. 28 U.S.C. § 2254(i). The Court is
not saying that Lee's lawyers' work was excellent or even better than average.
But the governing law is strict; and the stumbles Lee points to aren't the truly
extraordinary circumstances that the law demands to reopen a final judgment.
What Lee has labeled a Rule 60(b) motion is, "if not in substance a
'habeas corpus application,' at least similar enough that failing to subject it to
the same requirements would be 'inconsistent with' the statute." Gonzalez,
545 U.S. at 530-32 (quoting 28 U.S.C. § 2254 and Rule 12 of the Rules
Governing Section 2254 Cases in the United States District Courts). This

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Court therefore lacks jurisdiction. Lee needs permission from the Court of
Appeals to proceed. 28 U.S.C. § 2244(b)(3)(A). The motion to reopen, motion
for a stay, and motion for funding for ancillary services are transferred to the
United States Court of Appeals for the Eighth Circuit. Ng 164, 166 & 167. This
transfer is immediate.
So Ordered.

D.P. Marshall Jr. f
United States District Judge

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