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)

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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 -2-

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