United States v. Lee

UNITED STATES OF AMERICA PLAINTIFF v. DANIEL LEWIS LEE DEFENDANT

Case No. 4:97-cr-00243-02 KGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

July 2, 2020

CAPITAL CASE

OPINION AND ORDER

Before the Court is a motion for relief from judgment or order pursuant to Federal Rule of Civil Procedure 60(b) (Dkt. No. 1352). Mr. Lee filed a supplemental motion for relief from judgment or order pursuant to Federal Rule of Civil Procedure 60(b) (Dkt. No. 1377). The government responded in opposition to Mr. Lee's motion and supplemented motion (Dkt. No. 1386). Mr. Lee replied (Dkt. No. 1393). For the following reasons, the Court denies the motion and supplemental motion (Dkt. Nos. 1352; 1377).

I. Overview

Mr. Lee is a federal death row inmate. In a 1999 trial over which the Honorable G. Thomas Eisele presided, Mr. Lee and co-defendant, Chevie Kehoe, were convicted of conspiring to violate and violating the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c)-(d), and of three murders in aid of racketeering in violation of 18 U.S.C. § 1959(a)(2) (Dkt. No. 810).¹ The victims were William Mueller, Nancy Mueller, and Nancy Mueller's minor daughter Sarah Powell. During the penalty phase, the jury first decided that Mr. Chevie Kehoe should be sentenced to life imprisonment and then, separately, that Mr. Lee should be sentenced to death (Minutes: Jury Trial May 10, 1999 (Chevie Kehoe); Dkt. Nos. 807, 816 (Danny Lee)). The EighthCircuit affirmed Mr. Lee's conviction and death sentence. United States v. Lee, 374 F.3d 637 (8th Cir. 2004), cert. denied, 545 U.S. 1141 (2005). Mr. Lee has raised, and courts including this Court have examined, several challenges to his conviction and sentence.

Pending now before the Court is Mr. Lee's motion pursuant to Federal Rule of Civil Procedure 60(b) seeking relief from this Court's denial of his Federal Rule of Civil Procedure 59(e) motion (Dkt. No. 1352). The Court held Mr. Lee's current Rule 60(b) motion in abeyance pending the Supreme Court's decision in Banister v. Davis, No. 18-6493, which issued June 1, 2020. See Banister v. Davis, 140 S. Ct. 1698 (2020). Mr. Lee filed a Rule 59(e) motion seeking reconsideration of his previously presented claims contending that the denial of his 28 U.S.C. § 2255 motion and request for an evidentiary hearing was based on significant errors of fact and law. Judge Eisele held under Gonzalez v. Crosby, 545 U.S. 524 (2005), and governing precedent that Mr. Lee's Rule 59(e) motion was an improper successive § 2255 motion and that, therefore, the Court lacked jurisdiction to consider it. On appeal, the Eighth Circuit Court of Appeals affirmed.

In Banister, the United States Supreme Court held that a Rule 59(e) motion is a "limited continuation of the original proceeding" and "does not count as a second or successive habeas application." 140 S. Ct. at 1710-11. The parties agree that Banister overturns Eighth Circuit precedent and that Mr. Lee's previously filed Rule 59(e) motion should not have been considered a successive § 2255 motion. Further, the parties acknowledge that, after determining that Mr. Lee's previously filed Rule 59(e) motion was a successive § 2255 motion, Judge Eisele nonetheless addressed Mr. Lee's ineffective assistance of counsel claim raised in the Rule 59(e) motion. The parties disagree on the current impact and effect of Judge Eisele's analysis of Mr. Lee's ineffective assistance of counsel claim.

Mr. Lee argues that, because Judge Eisele found the Rule 59(e) motion was a second or successive habeas petition, the Court did not have subject-matter jurisdiction and could not exercise "hypothetical jurisdiction" to make alternative merits findings. Mr. Lee contends that the merits findings in Judge Eisele's analysis are a "legal nullity" and that the only surviving finding is the now erroneous determination based on Banister that Mr. Lee's Rule 59(e) motion was a second or successive habeas petition. As a result, Mr. Lee seeks to reopen his § 2255 proceedings. The government disagrees, arguing that Judge Eisele made merits findings which Mr. Lee now attacks, making his current motion an unauthorized successive § 2255 motion over which this Court lacks jurisdiction and, in the alternative, that Mr. Lee fails to establish extraordinary circumstances that justify relief from judgment under Rule 60(b).

II. Analysis

In his current Rule 60(b) motion, Mr. Lee contends that he raised three relevant errors in his Rule 59(e) motion: (1) Judge Eisele incorrectly found relief on the ineffectiveness claim was foreclosed by the Eighth Circuit direct-appeal opinion about the proper scope of cross-examination and related prejudice; (2) Judge Eisele misunderstood his § 2255 argument that, if his lawyers had objected to the evidence of the Hare Psychopathy Checklist-Revised (PCL-R) test results as a basis for determining future dangerousness in prison, the government's expert witness Dr. Thomas Ryan would have withdrawn his opinion and report; and (3) Judge Eisele improperly held affidavits were a prerequisite for a hearing and made determinations based on untested affidavits and assertions in the pleadings instead of based on a hearing (Dkt. No. 1377, at 5-6). To understand Mr. Lee's current claims, the Court examines the relevant procedural history.

A. Relevant Procedural History

Post-trial, Judge Eisele first examined relevant evidence in granting Mr. Lee's motion for a new sentencing phase trial. Judge Eisele reached the conclusion that the government exceeded the scope of permissible cross-examination in its questioning of Mr. Lee's mental health expert and examination of the government's rebuttal expert witness and that, as a result, this irreversibly compromised Mr. Lee's rights; the Eighth Circuit reversed Judge Eisele's grant of a new sentencing phase trial. United States v. Lee, 89 F.Supp. 2d 1017 (E.D. Ark. 2000), rev'd, 274 F.3d 485 (8th Cir. 2001).

As Judge Eisele explained:

In its notice of intent to seek the death penalty against Defendant Lee, the Government, as required by statute, identified several aggravating factors that it anticipated using at sentencing. For each of the murders, the Government offered the following statutory aggravating factors: (1) that Defendant Lee murdered each victim in expectation of the receipt of anything of pecuniary value; (2) that Defendant Lee murdered each victim after substantial planning and premeditation; and (3) that Defendant Lee intentionally killed or attempted to kill more than one person during a single criminal episode. For the Sarah Powell murder, the Government offered the additional statutory aggravating factor that the victim was particularly vulnerable due to her youth, that being eight years of age. For each of the murders, the Government offered the non-statutory aggravating factor of future dangerousness. It is the last of said factors, future dangerousness, that is the subject of Defendant Lee's motion.

Lee, 89 F.Supp. 2d at 1018.

At Mr. Lee's sentencing, the government presented fact evidence about Mr. Lee's prior actions to support the government's argument that Mr. Lee would be a danger in prison. Mr. Lee then called his mental-health expert Dr. Mark Cunningham to testify primarily about his traumatic life experiences. On cross-examination of Dr. Cunningham, the government elicited testimony from Dr. Cunningham defining psychopathy and its characteristics, including a lack of remorse, increased incident of predatory violence, and increased risk of violent recidivism (Trial Tr. at 7805-09). Dr. Cunningham testified that he had reviewed the risk-assessment report prepared by Dr. Ryan and was aware that Dr. Ryan identified Mr. Lee as falling in the "psychopathy range" based on his scoring on the PCL-R (Trial Tr. at 7825-28). Dr. Cunningham testified that a high score on the PCL-R and resulting psychopath diagnosis are indicative of "greater violence in the community" but that Dr. Cunningham did not believe research supported Dr. Ryan's conclusion that PCL-R scores were predictive of behavior in prison (Trial Tr. at 7806-19, 7828-29). During this testimony, Mr. Lee's lawyer, orally and in a written motion, moved to exclude testimony from Dr. Cunningham and Dr. Ryan about psychopathy and future dangerousness on the basis that it exceeded the scope of proper cross-examination. Judge Eisele permitted Dr. Cunningham to continue his testimony, and Mr. Lee's lawyer raised a continuing objection.

At the close of Dr. Cunningham's testimony, Judge Eisele granted the "motion in limine with respect to the issue of psychopathy, the Hare psychopathy test, and any reference to the defendant being a quote, psychopath, unquote, on the basis that such would not be proper rebuttal." (Trial Tr. at 7836). Dr. Ryan therefore did not testify about Mr. Lee's PCL-R results or psychopathy diagnosis. He did testify, however, about Mr. Lee's history of violence and that Mr. Lee made statements demonstrating a lack of remorse. The jury unanimously found the existence of the future-dangerousness aggravator and sentenced Mr. Lee to death.

Judge Eisele granted a new sentencing hearing on the ground that Dr. Cunningham's testimony on risk assessment and future dangerousness exceeded the scope of proper cross-examination. Judge Eisele also found that the government improperly elicited testimony from Dr. Ryan about past bad acts and violent character traits that supported the finding of future dangerousness. Judge Eisele found that "it is very questionable whether the jury would have given Defendant Lee the death penalty based upon the Government's direct case, a properly confinedcross-examination of Dr. Cunningham and its 'rebuttal' testimony of Dr. Ryan." (Dkt. No. 941). Lee, 89 F. Supp. 2d at 1031.

The Eighth Circuit reversed, concluding that, "[e]ven if the government's examination of Dr. Cunningham about psychopathy exceeded the scope of his direct, we fail to find a...