                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 20-2128
DANIEL LEWIS LEE,
                                                Petitioner-Appellant,
                                 v.

T. J. WATSON, Warden, and
UNITED STATES OF AMERICA,
                                             Respondents-Appellees.
                     ____________________

             Appeal from the United States District Court
      for the Southern District of Indiana, Terre Haute Division.
     No. 2:19-CV-00468-JPH-DLP — James Patrick Hanlon, Judge.
                     ____________________

       SUBMITTED JULY 9, 2020 — DECIDED JULY 10, 2020
                  ____________________

   Before SYKES, Chief Judge, and EASTERBROOK and BARRETT,
Circuit Judges.
    SYKES, Chief Judge. Daniel Lewis Lee and his codefendant,
Chevy Kehoe, were members of the Aryan Peoples’ Republic
(a/k/a Aryan Peoples’ Resistance), a white supremacist
organization founded for the purpose of establishing an
independent nation of white supremacists in the Pacific
Northwest. In January 1996 Lee and Kehoe traveled from the
2                                                 No. 20-2128

State of Washington to the Arkansas home of William
Mueller, a firearms dealer who owned a large collection of
guns and ammunition. There they overpowered Mueller and
his wife, Nancy, and questioned their eight-year-old daugh-
ter Sarah about the location of Mueller’s guns, ammunition,
and cash. After stealing about $30,000 worth of weapons and
$50,000 in cash and coins, Lee and Kehoe shot all three
victims with a stun gun, placed plastic bags over their heads,
and sealed the bags with duct tape to asphyxiate them. They
then taped rocks to the three victims and threw them into
the Illinois Bayou. The bodies were discovered six months
later in Lake Darnelle near Russellville, Arkansas. United
States v. Lee, 374 F.3d 637, 642 (8th Cir. 2004).
    Lee and Kehoe were indicted in federal court in the
Eastern District of Arkansas on three counts of capital
murder in aid of racketeering, 18 U.S.C. § 1959(a)(1), and
related crimes. In May 1999 they were convicted by a jury in
a joint trial, and the district judge scheduled separate penal-
ty phases. United States v. Lee, 274 F.3d 485, 488 (8th Cir.
2001). Kehoe’s case went first, and the jury returned a ver-
dict of life in prison without release. Id. In Lee’s sentencing
proceeding, prosecutors introduced evidence of his in-
volvement as a teenager in a 1990 murder in Oklahoma. In
that earlier homicide, Lee severely beat the victim and forced
him down a manhole into a sewer, then gave a knife to his
cousin, who repeatedly stabbed the victim and slit his throat.
Lee and his cousin were charged with first-degree murder,
but Lee’s case was resolved with a guilty plea to robbery
with a suspended sentence, which the government charac-
terized in its argument to the jury as a “gift” from Oklahoma
prosecutors. Also, as relevant here, in cross-examination of
Lee’s psychological expert, the government elicited testimo-
No. 20-2128                                                  3

ny about Lee’s future dangerousness—specifically, a psycho-
logical test known as the Hare Psychopathy Checklist-
Revised, which the government’s expert had administered to
Lee and yielded a score in the psychopathy range. Lee’s jury
returned a verdict of death.
    The Eighth Circuit affirmed Lee’s convictions and death
sentence. 374 F.3d 637 (8th Cir. 2004); 274 F.3d 485 (8th Cir.
2001). Lee pursued a full round of collateral review under
28 U.S.C. § 2255 raising multiple grounds, including ineffec-
tive assistance of trial counsel. 715 F.3d 215 (8th Cir. 2013).
He filed many subsequent requests for collateral relief, but
all failed on the merits or for lack of the authorization re-
quired by 28 U.S.C. § 2244(b)(3) and § 2255(h). See, e.g.,
No. 4:97-cr-00243-02-KGB, 2020 WL 3625732 (E.D. Ark.
July 2, 2020); No. 4:97-cr-00243-02-KGB, 2020 WL 3618709
(E.D. Ark. July 2, 2020); 960 F.3d 1023 (8th Cir. 2020);
No. 19-2432 (8th Cir. Nov. 4, 2019); 792 F.3d 1021 (8th Cir.
2015).
    In July 2019 the United States scheduled Lee’s execution
for December 9, 2019. Two months later he filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2241 in the
Southern District of Indiana, where he is confined in the
Terre Haute federal prison. He requested a stay of execution
but later withdrew that request. The district judge nonethe-
less stayed Lee’s execution. We vacated the stay order
because § 2255(e) bars a § 2241 petition with a limited excep-
tion for claims for which a motion under § 2255 is “inade-
quate or ineffective to test the validity of” the prisoner’s
detention; the exception is customarily referred to as the
“Savings Clause.” Lee’s § 2241 petition raised two challenges
4                                                     No. 20-2128

to his death sentence: a Strickland claim 1 for ineffective
assistance of trial counsel during the sentencing phase and a
Brady/Napue claim 2 based on evidence that was supposedly
newly discovered. The former claim attacked counsel’s
failure to adequately object to the government’s cross-
examination of the defense psychologist regarding the
psychopathology test; the latter was premised on a docu-
ment in the court record in Lee’s 1990 Oklahoma murder
case that current counsel contends sheds some light on why
the case was resolved as a robbery.
     In our order vacating the stay, we explained that Lee’s
likelihood of success on the merits was “slim” because both
claims—Brady claims alleging suppression of exculpatory
evidence and Strickland claims alleging ineffective assistance
of counsel—are “regularly made and resolved under
§ 2255,” so the remedy by motion cannot be called “inade-
quate or ineffective” for purposes of the Savings Clause. Lee
v. Watson, No. 19-3399, 2019 WL 6718924, at *1 (7th Cir.
Dec. 6, 2019). We considered and rejected the possibility that
Lee’s case might satisfy the standard established in Webster
v. Daniels, which holds that § 2255 may be inadequate or
ineffective if the provision for successive collateral attacks in
§ 2255(h) does not permit a prisoner to present newly dis-
covered evidence that “existed before the time of the trial”
but was unavailable “despite diligence on the part of the
defense.” 784 F.3d 1123, 1140 (7th Cir. 2015) (en banc). In
Webster the newly discovered evidence had a bearing on


1   Strickland v. Washington, 466 U.S. 668 (1984).
2Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S.
264 (1959).
No. 20-2128                                                    5

whether the prisoner was “categorically and constitutionally
ineligible for the death penalty” under the Supreme Court’s
decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v.
Florida, 572 U.S. 701 (2014), based on intellectual disability.
Webster, 784 F.3d at 1125. In our December 6 order, we held
that Lee’s § 2241 petition was not likely to succeed under
Webster because the evidence he claims is “newly discov-
ered” was both known to him and publicly available in the
court record of his Oklahoma murder case and thus was
readily ascertainable with reasonable diligence and not
concealed by the prosecution.
    Our order vacating the stay had no immediate effect be-
cause Lee’s sentence was subject to a separate injunction
entered in litigation in the district court for the District of
Columbia involving a broader challenge to the federal
execution protocol. While that litigation proceeded, the
district judge in this case denied Lee’s § 2241 petition as
barred by § 2255(e) for essentially the same reasons we
identified in our order vacating the stay. Lee v. Warden USP
Terre Haute, No. 2:19-cv-00468-JPH-DLP, 2020 WL 1317449
(S.D. Ind. Mar. 20, 2020). A week later the Court of Appeals
for the District of Columbia Circuit vacated the district
court’s injunction. In re Fed. Bureau of Prisons’ Execution
Protocol Cases, 955 F.3d 106 (D.C. Cir. 2020). In June Lee’s
execution date was rescheduled for July 13, 2020. On
June 26, 2020, the judge denied Lee’s Rule 59 motion to alter
or amend the judgment, Lee, No. 2:19-cv-00468-JPH-DLP,
2020 WL 3489355 (S.D. Ind. June 26, 2020), and Lee filed his
notice of appeal that same day.
6                                                     No. 20-2128

    On June 29, 2020, the Supreme Court denied certiorari in
the Execution Protocol case under the name Bourgeois v. Barr,
No. 19-1348, 2020 WL 3492763. Three days later a panel of
this court issued a decision affirming the denial of a § 2241
petition by another death-row prisoner confined at the Terre
Haute prison. Purkey v. United States, No. 19-3318, 2020 WL
3603779 (7th Cir. July 2, 2020). Purkey squarely rejected the
arguments Lee raises here. On July 8 Lee moved for leave to
file an oversized appellate brief and tendered the brief with
the motion, but the brief makes scant mention of Purkey. We
granted the motion that same day and ordered the govern-
ment to respond by 5 p.m. Central Time on July 9. It has
done so. Oral argument is unnecessary because under Purkey
and our December 6, 2019 order vacating the stay of execu-
tion, Lee’s arguments are frivolous.
    Purkey holds unambiguously that under Webster and ear-
lier circuit precedent, 3 a § 2241 petition may not proceed
under the Savings Clause absent “a compelling showing”
that it was “impossible” to use § 2255 to cure the defect
identified in the § 2241 petition; “[i]t is not enough that
proper use of the statute results in a denial of relief.” Id. at
*8. The Savings Clause, we explained, is a “narrow pathway
to the general habeas corpus statute,” id. at *5, and to pro-
ceed down that path there must be something “structurally
inadequate or ineffective about section 2255 as a vehicle” for
the arguments raised in the § 2241 petition, id. at *10. That is,
“the words ‘inadequate or ineffective,’ taken in context, must
mean something more than unsuccessful.” Id. at *8.


3See Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001); In re Davenport,
147 F.3d 605 (7th Cir. 1998).
No. 20-2128                                                         7

    Wesley Purkey filed a § 2241 petition seeking to litigate
three new claims of ineffective assistance of counsel; he had
raised a Sixth Amendment claim for ineffective assistance of
trial counsel in his § 2255 motion, accusing his trial counsel
of ineffectiveness “in 17 different particulars” but had not
included the grounds raised in the § 2241 petition. Id. at *3.
Purkey attributed the omission to the ineffectiveness of his
postconviction counsel and maintained that “section 2255 is
structurally inadequate to test the legality of a conviction
and sentence any time a defendant receives ineffective
assistance of counsel in his one permitted motion.” Id. at *7.
    We rejected that argument, explaining that “nothing
formally prevented [Purkey] from raising each of the three
errors” in his § 2255 motion. Id. at *8. “[T]he mechanisms of
section 2255 gave him an opportunity to complain about
ineffective assistance of trial counsel, and he took advantage
of that opportunity.” Id. at *10. In short, “[t]here was nothing
structurally inadequate or ineffective about section 2255 as a
vehicle to make those arguments.” Id. Purkey argued for the
extension of the Martinez/Trevino doctrine 4 to the Savings
Clause context. Martinez/Trevino addresses the circumstances
under which a state prisoner’s claim of ineffective assistance
of trial counsel can be raised on federal habeas review under
28 U.S.C. § 2254 despite a procedural default. We have
extended the Martinez/Trevino doctrine to federal prisoners.
Ramirez v. United States, 799 F.3d 845, 854 (7th Cir. 2015). But
in Purkey we flatly rejected its application in the Savings
Clause context, explaining that the case was governed by


4 Martinez v. Ryan, 566 U.S. 1 (2012); Trevino v. Thaler, 569 U.S. 413
(2013).
8                                                 No. 20-2128

statute, not federal common law. 2020 WL 3603779, at *11.
The “pertinent statute is 29 U.S.C. § 2255(e), a statute that
played no part in Ramirez.” Id.
    This case is indistinguishable from Purkey. Lee raised a
claim of ineffective assistance of trial counsel in his § 2255
motion and now seeks to use § 2241 as a vehicle to raise a
new argument about trial counsel’s ineffectiveness. Under
Purkey the Savings Clause does not apply; there was nothing
structurally inadequate about § 2255 as a vehicle for this
argument. Like Wesley Purkey, Lee invokes the
Martinez/Trevino doctrine as interpreted in Ramirez. We
rejected this argument in Purkey and that decision controls
here.
   Lee’s Brady/Napue claim fares no better. As we explained
in our December 6 order, the alleged “newly discovered”
evidence on which this claim rests was known to Lee and is
contained in the publicly available court record in Lee’s 1990
Oklahoma murder case and thus was available with reason-
able diligence. Accordingly, the evidence is neither newly
discovered under Webster nor was suppressed within the
meaning of Brady. The Savings Clause does not apply; § 2255
was not structurally inadequate or ineffective to raise the
Brady/Napue claim.
    In sum, it follows directly from Purkey and our earlier de-
cision in this case that Lee’s § 2241 petition was properly
denied. We therefore affirm the judgment of the district
court. We also deny Lee’s motion for a stay of execution,
filed today, which relies on the same now-rejected merits
arguments.
                   Judgment AFFIRMED; stay motion DENIED.
