Lee v. Hobbs

Filing 196

ORDER transferring 186 motion for release of evidence for DNA testing and a stay of execution filed by Ledell Lee to the U.S. Court of Appeals for the Eighth Circuit immediately. Signed by Judge D. P. Marshall Jr. on 4/20/2017. (thd)

FILED

U.S. DISTRICT COURT
EASTERN Dl~TRfCT ARKANSAS

IN THE UNITED STATES DISTRICT COURT
APR 20 2017
EASTERN DISTRICT OF ARKANSAS ~~:M1}~·~ACK, CLERK
PINE BLUFF DIVISION
--=oep CLERK
PETITIONER

LEDELLLEE

v.

No. 5:01-cv-377-DPM

WENDY KELLEY, Director,
Arkansas Department of Correction

RESPONDENT

ORDER
Lee has filed a new motion, NQ 186, for release of evidence for DNA
testing and a stay of execution pursuant to McFarland v. Scott, 512 U.S. 849
(1994). Kelley has, as requested, filed an expedited response, NQ 193. The new
motion, which aims at getting a pair of tennis shoes and hair samples for this
testing, is of a piece with Lee's earlier motion for ancillary services. The core
issue is whether Lee's entitled to another round of habeas review. This Court
has transferred Lee's motion seeking that relief- albeit under the flag of
Federal Rule of Civil Procedure 60(b)-to the Court of Appeals, because that
is the only Court empowered by statute to decide the core issue. 28 U.S.C.
§2244(b)(3)(A); NQ 188. The Court of Appeals has docketed the matter as case
No. 17-1838, and that Court is probably the only one with jurisdiction, at this
point, to decide dependent collateral matters such as the DNA testing.
28 U.S.C. § 2251(a)(l) & (2). Even if this Court is wrong about its jurisdiction

in the circumstances, a proper respect for the Court of Appeals' primary task,
as well as common sense, suggests that this latest motion belongs, at least for
the time being, in that Court, too.
Motion, NQ 186, transferred to the United States Court of Appeals for the
Eighth Circuit immediately.
So Ordered.
y

D.P. Marshall Jr.
United States District Judge

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