Ledell LEE, Plaintiff-Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction, Defendant-Appellee, 854 F.3d 544

PER CURIAM. About five hours before Ledell Lee’s scheduled execution, two appeals were brought to this court. In the first, the district court determined that, under Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), it lacked jurisdiction on the ground that Lee’s motion for relief from judgment under Federal Rule of Civil Procedure 60(

b) was, in substance, a successive petition for habeas corpus under 28 U.S.C. § 2254. The district court concluded that, although Lee’s motion was styled as one to reopen judgment under Rule 60(b), Lee was actually seeking to litigate new claims under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). The court transferred the matter to our court. See Burton v. Stewart, 549 U.S. 147, 153, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007). However, Lee voluntarily dismissed the matter before any determination could be made.

No. 17-1838. In this appeal, Lee challenges the district court’s alleged denial of his motion requesting funds under 18 U.S.C. § 3599(

f) for “ancillary services to assist in the preparation of clemency and potential additional litigation.” Lee now moves for a stay of execution. We deny his motion for stay. “A stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir. 2015) (citation omitted) (internal quotation marks omitted), quoting Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006).

To receive a stay, Lee “must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits.” Id. To receive a stay of execution, it is not enough that Lee show a significant possibility of success of the merits of some claim. Rather, Lee must show a significant possibility that he will succeed on the merits of a claim that would deprive Arkansas of the authority to execute him. See Durr v. Cordray, 602 F.3d 731, 736-37 (6th Cir. 2010). Lee has not made that showing. Even if he succeeded on his § 3599(

f) claim, Arkansas would still have the authority to execute him. Lee argues that the appointment of funds could lead to a chain of events that might include Governor Hutchinson approving clemency, the state Parole Board reconsidering its previous recommendation of denial of clemency, or later habeas proceedings. But these potential down-the-road effects do not give this court the authority to issue a stay. The motion for stay is denied. . The district court in fact did not deny Lee’s motion for funds but rather transferred the motion to our court.