The 7th Circuit Court of Appeals has temporarily stayed an execution scheduled for next week after finding that two issues raised by a Terre Haute inmate were “worthy of further exploration.”
Wesley Ira Purkey’s execution was scheduled for July 15, but now it will be stayed “pending the completion of proceedings in the Seventh Circuit,” according to Judge Diane Wood, who was joined by Judges Michael Brennan and Amy St. Eve.
Purkey, of Kansas, was convicted and sentenced to death after he raped and murdered a 16-year-old girl and also killed an 80-year-old woman.
He is one of four federal inmates scheduled to be put to death in July and August. Attorney General William Barr directed Bureau of Prisons to schedule the executions, ending an informal moratorium on federal capital punishment.
Barr had initially scheduled five executions set to begin in December, but they were paused after some of the inmates challenged new execution procedures in court, arguing the government was circumventing proper methods to wrongly execute inmates quickly. However, the executions were rescheduled last month after an appeals court threw out a lower court ruling that put them on hold.
The U.S. Supreme Court refused to block the scheduled executions last week.
Purkey’s lawyers separately filed court documents asking a federal judge to halt his execution, arguing he isn’t mentally fit for the death penalty because he suffers from “advancing Alzheimer’s disease and deteriorating cognitive functioning.”
According to Wood, Purkey has raised a total of three claims since his execution was initially scheduled last year. The claim before the 7th Circuit challenges the constitutionality of his conviction and sentence.
Last November, Indiana Southern District Judge J.P. Hanlon denied Purkey’s request to stay his execution. Likewise in its Thursday decision, the 7th Circuit held that Purkey’s case “is not one of those rare cases in which the defendant is entitled to another day in court … .”
Focusing on Purkey’s petition under 28 U.S.C. § 2241, the 7th Circuit concluded he is not entitled to use that section. Specifically, Wood wrote that Purkey’s case does not fit within the narrow pathway to the general habeas corpus statute in the provision known as the “safety valve,” 28 U.S.C. § 2255(e).
“Although we do not believe that (In re Davenport, 147 F.3d 605 (7th Cir. 1998)), (Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001)), and (Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (en banc)) create rigid categories delineating when the safety valve is available — and such a finding would be inconsistent with the standard-based language of section 28 U.S.C. § 2255(e) — we do think that the words ‘inadequate or ineffective,’ taken in context, must mean something more than unsuccessful,” Wood wrote.
The judge noted that at the time Purkey filed his motion under § 2255, nothing formally prevented him from raising each of the three errors he currently seeks to raise in his petition under § 2241. She pointed to his trial counsel’s failure to notice the “disturbing coincidence” that one of the jurors who convicted Purkey and voted for the death penalty had the same name as Purkey’s youngest victim and was also the victim of an attempted rape at age 16.
The circuit court determined that the question is whether, “having raised in his section 2255 motion 17 specific ways in which his trial counsel were ineffective, Purkey is now entitled to add additional allegations not by obtaining permission to file a successive section 2255 motion, but through section 2241. Purkey says yes and points to the fact that section 2255 counsel also missed the problem with Juror 13. But how far are we supposed to take that?”
In answering that question, the panel found that pursuant to current law, if an applicant has already raised a Sixth Amendment ineffectiveness claim in an earlier application —even if the specific details of the ineffective performance are different— it must dismiss a new claim of ineffective assistance of the same lawyer.
Additionally, the 7th Circuit noted that while it agreed with Purkey that the efforts of trial counsel to build a case for mitigation fell short of what current counsel have now found, the mechanisms of § 2255 gave him an opportunity to complain about ineffective assistance of trial counsel, and he took advantage of that opportunity.
But that wasn’t the end of the line for Purkey’s bid to delay his execution.
“Although we have ruled against Purkey on the merits, we have emphasized that at least two of the points he has raised are worthy of further exploration—the seating of Juror 13, and the failure of trial counsel to conduct a proper mitigation analysis,” the 7th Circuit concluded. “We have rejected those points not on the merits, but because of our understanding of the safety valve language, 28 U.S.C. § 2255(e).
“If our reading of the safety valve is too restrictive, there would be significant issues to litigate,” the court continued. “And, unlike the alien in (Nken v. Holder, 556 U.S. 418 (2009)), Purkey faces categorically irreparable injury — death. A brief stay to permit the orderly conclusion of the proceedings in this court will not substantially harm the government, which has waited at least seven years to move forward on Purkey’s case.
“Finally, the public interest is surely served by treating this case with the same time for consideration and deliberation that we would give any case. Just because the death penalty is involved is no reason to take short-cuts — indeed, it is a reason not to do so,” Wood concluded.
The stay of Purkey’s execution will be lifted “upon the issuance of this court’s mandate or as specific in any subsequent order that is issued.”
The case is Wesley Ira Purkey v. United States of America, et al., 19-3318.
The Associated Press contributed to this report.
Editor’s note: This story has been updated to reflect that Judge Diane Wood is no longer the chief judge of the 7th Circuit.