United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 July 13, 2020 Before DIANE P. WOOD, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 19‐3318 WESLEY IRA PURKEY, Appeal from the United States District Petitioner‐Appellant, Court for the Southern District of Indiana, Terre Haute Division. v. No. 2:19‐cv‐00414‐JPH‐DLP UNITED STATES OF AMERICA, et al., Respondents‐Appellees. James P. Hanlon, Judge. ORDER Wesley Ira Purkey, a death‐row inmate at the U.S. Penitentiary in Terre Haute, currently has a scheduled execution date of July 15, 2020, two days from now. As we explain further below, this court heard oral argument in Purkey’s appeal from the district court’s order denying him relief under 28 U.S.C. § 2241 on June 16, 2020. Recognizing the gravity of the matter, the court sua sponte expedited its consideration of the appeal and issued its opinion affirming the district court on July 2, 2020, just 16 days after oral argument. In that opinion, although we rejected Purkey’s arguments on the merits, we recognized that at least two of them presented serious issues. Applying the No. 19‐3318 Page 2 approach dictated by Nken v. Holder, 556 U.S. 418 (2009), we concluded that a brief stay permitting the orderly conclusion of proceedings in this court was warranted. Sl. op. at 26–27. The government has taken two steps in response to that holding: first, it has asked us to reconsider this stay; and second, it has filed an application with the Supreme Court asking that court to set aside the stay. See Watson v. Purkey, U.S. No. 20A4 (filed July 11, 2020). We explain further in this order why we issued the temporary stay, which by its terms is limited to this litigation and does not affect any other cases Purkey has filed in other courts, and why we are not persuaded that it should be set aside. Purkey’s primary argument on appeal was that he received constitutionally inadequate assistance of counsel at his trial for the murder and kidnapping of Jennifer Long. Although a lawyer filed a motion on his behalf under 28 U.S.C. § 2255 in which he challenged trial counsel’s effectiveness, Purkey is now attempting to assert that post‐ conviction counsel was also ineffective in several critical respects. Barred from filing a successive motion under section 2255, he argues that his only recourse is to the general habeas corpus statute, 28 U.S.C. § 2241. If that door is closed to him, he contends, he could literally go to his death without ever having the opportunity first to demonstrate that his Sixth Amendment rights were violated, and second, if he succeeds, to have a new trial untainted by that failing. We found this to be a serious argument, although not one that we felt free to accept, given our understanding of the scope of the “safety valve” language in 28 U.S.C. § 2255(e). It is serious because all defendants, including capital defendants, have a right to constitutionally effective counsel. The information ...
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