Submitted April 16, 2015.
Appeal from United States District Court for the Eastern District of Arkansas - Little Rock.
For United States of America, Plaintiff - Appellee: Linda B. Lipe, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Eastern District of Arkansas, Little Rock, AR; John Michael Pellettieri, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Appellate Section, Washington, DC.
For Daniel Lewis Lee, also known as Daniel Lewis Graham, also known as Danny Lee, also known as D L Graham, Defendant - Appellant: George G. Kouros, FEDERAL PUBLIC DEFENDER'S OFFICE, Federal Capital Habeas Project, Chicago, IL; Morris H. Moon, FEDERAL PUBLIC DEFENDER'S OFFICE, Federal Capital Habeas Project, Houston, TX; Karl Schwartz, FEDERAL PUBLIC DEFENDER'S OFFICE, Capital Habeas Unit, Wilmington, DE.
Daniel Lewis Lee, also known as Daniel Lewis Graham, also known as Danny Lee, also known as D L Graham, Defendant - Appellant, Pro se, Terre Haute, IN.
Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
MURPHY, Circuit Judge.
Daniel Lewis Lee appeals the district court's denial of his Rule 60(b) motion seeking relief from the final judgment entered in his 28 U.S.C. § 2255 habeas petition. In his initial habeas petition, Lee had asserted that his trial counsel was ineffective, but he failed to attach any evidence to support that claim. The petition was denied, and Lee subsequently filed a Rule 60(b) motion arguing that his initial habeas counsel had been ineffective for failing to present available evidence. The district court characterized Lee's motion as a second or successive habeas motion filed without the required precertification by our court, see 28 U.S.C. § 2255(h), and denied it. Lee appeals, and we affirm.
Lee and codefendant Chevie Kehoe, members of a white supremacist group, killed a gun dealer, his wife, and their eight year old daughter during a robbery in January 1996. Lee was convicted on four racketeering charges, including three murders in aid of racketeering, and was sentenced by a jury to death. We affirmed his conviction and sentence. United States v. Lee, 374 F.3d 637 (8th Cir. 2004).
In 2006, Lee moved for postconviction relief under 28 U.S.C. § 2255. Lee's § 2255 petition alleged that his trial counsel had provided ineffective assistance during the penalty phase by not adequately objecting to testimony by government expert witness Dr. Thomas Ryan regarding the Hare Psychopathy Check List-Revised. Evidence based on the checklist had been introduced at the penalty phase of Lee's trial and that evidence had indicated he was a " psychopath" and a future danger in prison if he were to receive life imprisonment. A footnote in Lee's habeas petition stated that Dr. Ryan had signed a sworn declaration repudiating his reliance on the Hare checklist, but neither that declaration nor supporting exhibits were attached to the § 2255 petition. The district court denied the § 2255 petition without granting an evidentiary hearing.
After Lee's § 2255 petition was denied, he filed a Rule 59(e) motion for reconsideration in 2008. Attached for the first time were affidavits supporting his ineffective assistance claim. They purport to show that the Hare checklist was scientifically invalid and unreliable for predicting future dangerousness in prison. Also included was a sworn declaration of Dr. Ryan stating that he should not have relied on the Hare checklist in his expert assessment of another defendant, and indicating that the basis for challenging that evidence had been available in 1998, before Lee's 1999 trial. Although Judge Eisele denied the motion for reconsideration, he commented that had counsel timely presented these affidavits, the court " might have determined that an evidentiary hearing was required." Our court denied Lee's request for a certificate of appealability on whether he had " received ineffective assistance of counsel relating to the submission of aggravating factors to the jury to support his death sentence." United States v. Lee, 715 F.3d 215, 221 (8th Cir. 2013). We also affirmed the denial of Lee's § 2255 petition. Id. at 217.
Lee filed this Rule 60(b) motion in 2013 seeking relief from the judgment in his § 2255 case. He argued that under the Supreme Court decisions in Trevino v. Thaler,133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), and Martinez v. Ryan,132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), he was entitled to challenge the denial of his habeas claim that trial counsel had been ineffective for failing to make an adequate challenge to the use of the Hare checklist at sentencing. The district court decided that it lacked jurisdiction to hear the 60(b) motion because it was a second or successive § 2255 motion filed without appellate authorization, but granted Lee a certificate of ...